[Home] [Databases] [WorldLII] [Search] [Feedback] Laws of the People's Republic of China

You are here:  AsianLII >> Databases >> Laws of the People's Republic of China >> CIRCULAR OF THE STATE COUNCIL REGARDING THE IMPLEMENTATION OF ADMINISTRATIVE PUNISHMENTS

[Database Search] [Name Search] [Noteup] [Help]

CIRCULAR OF THE STATE COUNCIL REGARDING THE IMPLEMENTATION OF ADMINISTRATIVE PUNISHMENTS

    The Law of the People's Republic of China on Administrative Punishments
(hereinafter referred to as the Law on Administrative Punishments) shall go
into effect on October 1, 1996. This is a great event in China's socialist
democracy and legal system construction, and of great importance in
standardizing administrative organs' acts, promoting the legality of
administrative acts, improving the government administration, strengthening
the construction of an honest and clean government, maintaining the social
order, safeguarding the public interests and protecting the legitimate rights
and interests of citizens, legal persons and other organizations. It is an
important duty for all administrative organs to ensure a complete and correct
implementation of the Law on Administrative Punishments and so as to impel
the governments at various levels and all government departments to conduct
administration in strict accordance with the law, which is also a major task
in the government legal system construction. Local people's governments at
various levels and all departments of the State Council shall attach great
importance to the implementation of the Law on Administrative Punishments and
be sure to make the preparations well. This Circular are hereby issued for
that purpose.

    1. Seriously Study the Law on Administration Punishments and Fully
Realize the Effects Brought to the Administrative Organs by the Law on
Administrative Punishments.

    The Law on Administrative Punishments is an important law for
standardizing the government administration and has an important bearing on
administrative organs. With the establishment of the systems about the
power of setting administrative punishments, qualifications for implementing
administrative punishments, relative concentration of the authority of
administrative punishments, hearing, separation of the decision and
collection of a fine and the government's supervision over administrative
punishments, the Law on Administrative Punishments shall bring about a
significant reform in the existing administrative punishment system and have
a profound significance in the reform of government organs, transformation of
government functions and the strengthening of the government legal system
construction. Personnel, especially the leaders, of administrative organs at
various levels shall conscientiously and seriously study the Law on
Administrative Punishments, fully realize the importance of the
implementation of the Law on Administrative Punishments. All localities and
departments shall, in line with the principle of combining study with
practice, pay close attention to the training of administrative law-enforcing
personnel, making the personnel have a good grasp of the Law on
Administrative Punishments. The government's office of legislative affairs
shall, under the unified leadership of the government at the same level or
the central government's office of legislative affairs, organize the training
within their own locality and department. Various localities and departments
shall, through the media and means of publicity and in vivid and effective
forms, publicize the Law on Administrative Punishments among the masses of
the people, so as to form an opinion and environment in favor of people's
learning, knowing and observing laws and safeguarding their own legitimate
rights and interests according to law.

    2. Pay Close Attention to the Revision of Regulations.

    According to the provisions of the Law on Administrative Punishments,
administrative punishments may only be set by laws, regulations and rules,
no other regulatory documents may set administrative punishments; rules may
only set warnings and fines of certain amount; provisions imposing
administrative punishments on illegal acts must be published, otherwise, they
may not be taken as legal basis for administrative punishments. Accordingly,
a lot of rules currently in effect shall be amended or annulled in accordance
with the Law on Administrative Punishments, and many administrative
punishments set by regulatory documents shall become invalid. Various
localities and departments shall, in view of guarding the unity and sanctity
of the country's legal system, hasten to check up the rules and, if there is
a need to formulate administrative regulations or local regulations, sum up
experience and raise them up to administrative regulations or local
regulations; specific articles concerning administrative punishments in rules
which go beyond the bounds of the Law on Administrative Punishments but are
necessary for the administration shall be submitted to the State Council or
the standing committee of the people's congress of the province, autonomous
region or municipality directly under the central government for approval.
Administrative punishments set by other regulatory documents shall all become
invalid starting the effective date of the Law on Administrative Punishments.

    The work of revision of rules shall be completed before December 31,
1997. Administrative punishments provided for in existing rules shall remain
in force until that day. However, administrative punishments newly set by
rules formulated after the implementation of the Law on Administrative
punishments must be in conformity with the provisions of the Law on
Administrative Punishments. Fines set by rules of departments of the State
Council for illegal acts in non-profit-seeking activities may not exceed
1,000 yuan; with regard to illegal acts in profit-seeking activities, the
fine may not exceed three times the illegal earnings, if any, with a maximum
of 30,000 yuan, or may not exceed 10,000 yuan, if there is no illegal
earning; those going beyond the aforesaid limits shall be submitted to the
State Council for approval. The limits for fines set by rules of local
governments shall be determined by the standing committee of the people's
congress of the province, autonomous region or municipality directly under
the central government with no subjection to the above-mentioned limits.

    3. Check up Administrative Law-Enforcing Institutions According to Law
and Attach Great Importance to the Building of Administrative Law-Enforcing
Contingent.

    According to the provisions of the Law on Administrative Punishments,
administrative punishments may only be implemented by administrative organs
in principle. Enterprises and institutions as non-administrative
organizations may not exercise the power of administrative punishments except
authorized by laws or regulations; without explicit provisions by laws,
regulations or rules, no administrative organs may authorize institutional
organizations to implement administrative punishments. All localities and
departments shall attach great importance to those provisions, pay close
attention to the work of checking up the existing administrative law-
enforcing institutions of various types, and as early as possible rectify
the cases where administrative organs set up inner establishments to
implement administrative punishments on their own behalf, regulatory
documents other than laws and regulations authorize any organization to
implement administrative punishments, or, without legal basis provided by
laws, regulations or rules, administrative organs entrust organizations by
themselves to implement administrative punishments. From now on, law-
enforcing institutions newly established by various localities and
departments must be lawfully qualified, or if any locality or department has
disqualified organs or organizations implement administrative punishments,
the leaders of the locality or department shall be investigated for
responsibility.

    Some persons in the administrative law-enforcing contingent are low in
quality at present. Some of them abuse power for personal gains, refusing to
provide service without personal gains or misusing power just for personal
gains. Some of them even pervert justice for bribes and break the criminal
law. Some localities and departments employ contract or temporary workers to
carry out the work of law-enforcement without necessary funds and other
necessary conditions, resulting in a decline in the general quality of the
law-enforcing personnel and a damage to the image of the government. All
localities and departments must pay close attention to that problem, regard
the building of an efficient and honest and clean law-enforcing contingent as
the key point of the work of implementing the Law on Administrative
Punishments and raising the level of administration, and make the work
effectively accomplished. Strengthen the education of law-enforcing personnel
in the Party spirit and legality, making them enhance their sense of
responsibility and consciousness of acting according to law. Strengthen the
control over the qualifications, certifications and clothing of law-enforcing
personnel, and stop the situation that contract and temporary workers
implement the administrative punishments.

    4. Strengthen the Supervision over Administrative Punishments.

    The Law on Administrative Punishments clearly stipulates that
administrative organs shall establish and improve the system of supervision
over administrative punishments, and the people's governments at and above
county level shall strengthen the supervision over and inspection on
administrative punishments. All localities and departments shall, in
accordance with the actual situation of their own locality or department,
implement those stipulations, establish and improve the filing system for
regulatory documents and major cases of administrative punishments, the
system for citizens, legal persons and other organizations to make appeals
and accusation with regard to administrative punishments, the system for
deciding administrative punishments and statistical system for administrative
punishments, etc.. At the same time, the rules filing system and the
Regulations on Administrative Consideration must be strictly implemented and
the acts of illegally setting and implementing administrative punishments
shall be rectified without delay.

    The supervision and inspection by people's governments at and above
county level on administrative punishments is an important way by which
people's governments at higher levels exercise supervision over people's
governments at lower levels and government exercise supervision over its
departments, and is also an important duty of the government. Local people's
governments at and above county level shall take the supervision and
inspection on administrative punishments as an important content of the
government's work, pay close attention to it and be sure to obtain actual
effect. The inspection shall lay emphasis on inspecting the situation of the
implementation of systems as regarding the power of setting administrative
punishments, qualifications for implementing administrative punishments,
on-the-spot punishments and separation of decision and collection of fines,
etc.. Problems discovered in the inspection shall be resolutely corrected by
adopting energetic measures. The office of legislative affairs under either
local people's governments at various levels or their various departments
shall, in accordance with the unified plan of the government at the same
level or their own department, organize and undertake the supervision and
inspection of administrative punishments.

    5. Take Vigorous Action to Seek and Establish an Administrative Law-
Enforcement System Which Can Help Improve the Authority and Efficiency of
Administrative Law-Enforcement.

    People's governments of various provinces, autonomous regions and
municipalities directly under the central government shall conduct
experiments in relatively centralizing the power to make administrative
punishments and, in accordance with the local conditions, put forward a
proposal on adjusting the power to make administrative punishments and
implement it after submitted to and approved by the State Council. Various
departments of the State Council shall research an administrative punishment
system that is compatible with the socialist market economy, and give support
to people's governments of provinces, autonomous regions and municipalities
directly under the central government in the work of relatively centralizing
the power to make administrative punishments. All localities and departments
shall seriously implement the system of hearing, separation of investigation
for evidence and decision of punishment, and separation of decision and
collection of fines. They shall, in accordance with the provisions of the Law
on Administrative Punishments, define the scope of hearing, determine persons
taking charge of the hearing, formulate hearing rules, choose a relative
detached institution in the administrative organ for conducting preliminary
examination on the investigation results, reform the system for managing the
funds of administrative law-enforcing organs and check the way of making the
administrative punishments directly contacted with the interests of the
administrative law-enforcing organs and personnel.

    6. Grasp the Moment when the Law on Administrative Punishments Is to Be
Implemented and Raise the Legal Work of the Government to a New Level.

    The Ninth Five-Year Plan and the Long-Term Target Program for the Year
2010 of the National Economy and Social Development approved by the Fourth
Session of the Eighth National People's Congress calls for managing state
affairs according to law and building China into a country of socialist legal
system. That is an important guarantee for the country's lasting political
stability and it also ask more of the legal work of the government.
Governments at all levels and all their departments shall fully realize the
importance of effectively carrying out the government legal work in the new
period, strengthen the leadership over the government legal work, put the
construction of the government legal system to an important place in the work
of the government and place it on the agenda as an important item. What is
important at present is to lift the work concerning the government
legislative affairs, law-enforcement and supervision over the law-enforcement
up to a new step and raise the level of administration through the
implementation of the Law on Administrative Punishments.

    For strengthening the government legal work and implementing the Law on
Administrative Punishments, there must be a special contingent with
relatively high political and professional qualities. People's governments at
and above county level and all their departments shall take effective actions
to reinforce the institutions for government legislative affairs, make the
establishments and the personnel meet the demands of the tasks of government
legislative affairs of their own locality or department, create necessary
conditions for them to develop the work and give full play to their role as
an advisor and assistant in the government operation.

    All localities and departments shall, in accordance with the actual
situation of their own locality and department, seriously study and
implement this Circular after receiving it. Important events and problems
shall be reported to the Bureau of Legislative Affairs of the State Council
without delay.