Law of the People's Republic of China on Administrative Penalty
(Adopted at the 4th Session of the Eighth National People's Congress on March 17, 1996;?amended for the first time in accordance with the?Decision on Amending Some Laws?adopted at the 10th Meeting of the Standing Committee of the Eleventh National People's Congress on August 27, 2009;?amended for the second time in accordance with the?Decision on Amending the Judges Law of the People's Republic of China and Other Seven Laws?adopted at the 29th Meeting of the Standing Committee of the Twelfth National People's Congress on September 1, 2017;?and revised at the 25th Meeting of the Standing Committee of the Thirteenth National People's Congress on January 22, 2021)
Contents
Chapter I General Provisions
Chapter II Types and Establishment of Administrative Penalties
Chapter III Organs Enforcing Administrative Penalties
Chapter IV Jurisdiction over and Application of Administrative Penalties
Chapter V Decision on Administrative Penalties
Section 1 General Rules
Section 2 Summary Procedure
Section 3 Ordinary Procedure
Section 4 Hearing Procedure
Chapter VI?Enforcement?of Administrative Penalties
Chapter VII Legal Responsibilities
Chapter VIII Supplemental Provisions
Chapter I?General Provisions
Article 1?This Law is enacted in accordance with the Constitution for the purposes of standardizing the establishment and enforcement of administrative penalties, guaranteeing and supervising the effective administration by administrative organs, upholding public interests, maintaining public order, and protecting the lawful rights and interests of citizens, legal persons and other organizations.
Article 2?An administrative penalty refers to the act of an administrative organ punishing a citizen, legal person, or another organization in accordance with law for violation of administrative order by reducing?their?rights and interests or increasing?their?obligations.
Article 3?The establishment and enforcement of administrative penalties shall be governed by this Law.
Article 4?An administrative penalty that?should?be imposed on a citizen, legal person or another organization for violation of administrative order shall be prescribed?by?laws, administrative regulations or government rules?in?accordance with?this Law and enforced by an administrative organ?in accordance with?the procedures prescribed in this Law.
Article 5?The principles of fairness and openness shall be followed for administrative penalties.
The establishment?and enforcement of administrative penalties must be based on facts and proportionate to the?facts,?nature, circumstances and degree of social harm?of?violations of law.
Provisions on?the?imposition of?administrative penalties?for?violations of law?must be?published; and?unpublished?provisions shall not be taken as the basis for administrative penalties.
Article 6?In?enforcing?administrative penalties and?rectifying?violations of law, the combination of penalty?and?education shall be?adhered to, and citizens, legal persons or other organizations shall be educated to consciously?abide by?law.
Article 7?Citizens, legal persons?or?other?organizations?on which?an?administrative penalty is?imposed by?an?administrative organ shall have the right to?make?a?statement?and the right to defend?against the penalty;?and?those?that refuse to accept?an?administrative penalty?shall have the right to apply for administrative reconsideration or?bring?an administrative lawsuit?in?accordance with?law.
A citizen, legal person or another organization?that?has?suffered damages?due to?an?administrative penalty?imposed by?an?administrative organ in violation of law shall have the right to demand compensation in accordance with law.
Article 8?A?citizen,?a?legal person or another organization?subject to?an?administrative penalty?for a violation of law?shall?also?assume civil liability in accordance with law?if the violation of law?has?caused?damages?to others.
Where a violation of law constitutes?a crime?for which?criminal?liability?shall be investigated?in accordance with law,?an?administrative penalty?shall not be imposed in place of a?criminal penalty.
Chapter II?Types and?Establishment?of Administrative Penalties
Article 9?Administrative penalties shall include?the following types:
1. Warning?or?circulation of notice of criticism;
2. Fines, confiscation of illegal gains,?or?confiscation of illegal property;
3.?Suspending?licenses, lowering?the?qualification level,?or?revoking?licenses;
4. Restricting?production?or?business operation, ordering suspension of production?or?business, ordering closure?of business,?or?restricting?engagement in certain business operations;
5. Administrative detention; and
6. Other administrative penalties as prescribed by laws and administrative regulations.
Article 10?Various?types of administrative penalties may be?established?by?law.
Administrative penalties?restricting?personal freedom shall be established only by law.
Article 11?Administrative penalties other than?the?restriction?of?personal freedom may be?established?by?administrative regulations.
Where administrative penalties?for?violation of law?have been?provided for?in laws and?specific provisions need to be?formulated?in administrative regulations, such provisions must be?formulated?within the scope of the acts subject to administrative penalties?and?within?the types?and range of such penalties?as prescribed in laws.
Where a law does not prescribe administrative penalties for its?violations, such penalties may be supplemented by?the administrative regulations implementing?the?law. Where administrative penalties?are?to be supplemented,?opinions?shall be extensively?solicited?by hearings, demonstration meetings?and other means, and written explanations shall be made to the enacting?organ of the law. When administrative regulations are submitted for record, the supplementation of?administrative penalties shall be explained.
Article 12?Local regulations may?establish?administrative penalties other than restriction of personal freedom and revocation of business licenses.
Where laws and administrative regulations?have already?prescribed?administrative penalties?on?violations?of law, and?it is?still?necessary to formulate specific provisions?on such penalties?in local regulations,?such provisions?must?be formulated?within the scope of the acts subject to administrative penalties?and?within?the types?and range of such penalties?as prescribed by laws and administrative regulations.
Where?laws?or?administrative?regulations?have no provisions on administrative penalties for their?violations, such penalties?may be?supplemented?by?local regulations?for the?implementation of?the?laws?and administrative regulations. Where?such?administrative penalties?are?to be supplemented,?opinions?shall be extensively?solicited?by hearings, demonstration meetings?and other means, and written explanations shall be made to the enacting?organs?of?the?laws and administrative regulations. When local regulations are submitted for record, the supplement?of?administrative penalties shall be explained.
Article 13?Specific provisions?on administrative penalties may be prescribed in departmental?rules of the State Council within the scope of the acts subject to administrative penalties?and?within?the types?and range of such penalties?as prescribed by?relevant?laws and administrative regulations.
For violations of administration order on which no laws or?administrative?regulations have been enacted, administrative penalties?such as?warning,?circulation of notice of criticism or certain amount of fines?may be?established?in the?departmental?rules of the State Council.?The limit of?the?fines?shall be prescribed by the State Council.
Article 14?Specific provisions on administrative penalties may be prescribed in local government rules within the scope of the acts subject to administrative penalties?and?within?the types?and range of such penalties?as prescribed by?relevant?laws and administrative regulations.
For?violations of administration order?on?which no laws or administrative regulations have been enacted, administrative penalties?such as?warning,?circulation of notice of criticism or?a?certain amount of fines?may be?established?by?local government?rules. The specific amount of?the?fines?shall be prescribed by the standing committees of the people's congresses of provinces, autonomous regions?or?municipalities directly under the Central Government.
Article 15?Various departments?under?the State Council, people's governments of provinces, autonomous regions?and?municipalities directly under the Central Government and relevant departments shall organize the assessment of the enforcement and?the?necessity of administrative penalties?on a regular basis, and?put forward?suggestions on amending or repealing inappropriate?provisions on?matters,?types of administrative penalties and?the?amount of?fines.
Article 16?No administrative penalty shall be?established?in any?normative?document other than laws, administrative regulations or government rules.
Chapter III?Organs?Enforcing Administrative Penalties
Article 17?Administrative penalties?shall be enforced by administrative?organs?with the power of?imposing?administrative penalties?within the scope of?their?statutory functions?and powers.
Article 18?The?State promotes?the establishment of a comprehensive administrative law enforcement system in urban management, market?regulation, ecological environment, cultural market, transportation, emergency management, agriculture and other fields, and relatively concentrates?the power of?the?administrative penalty.
The State Council or?the?people's government of a province, autonomous region, and municipality directly under the Central Government may decide?to have?one?administrative?organ?exercise?the?power of?imposing?administrative penalties?of?other?relevant administrative?organs.
The power of?the?administrative penalty that restricts personal freedom?shall?be exercised only by public security?organs?and other?organs?prescribed?by?law.
Article 19?An organization authorized by laws?or?administrative?regulations to manage public affairs may enforce administrative penalties within the scope of?its?statutory authorization.
Article 20?In accordance with the provisions of laws, administrative regulations or government rules, an administrative organ may, within the scope of its statutory authority, entrust in writing an organization that meets the conditions prescribed in Article 21 of this Law with?the?enforcement of administrative penalties. An administrative organ shall not entrust the enforcement of administrative?penalties?to any other organization or individual.
The?letter of entrustment?shall specify the specific entrusted matter,?competence, time limit and other?matters of entrustment. The entrusting administrative organ and the entrusted organization shall announce the?letter of entrustment?to the public.
The entrusting administrative organ shall be responsible for supervising the enforcement of administrative penalties by the entrusted organization and assume legal?responsibilities?for consequences of the enforcement.
An entrusted organization shall, within the scope of entrustment, enforce administrative penalties in the name of the entrusting administrative organ;?and?it?shall not re-entrust another organization or individual with?the?enforcement of administrative penalties.
Article 21?An entrusted organization must meet the following conditions:
1.?It is formed?in accordance with law?and has the function of managing public affairs;
2.?It is staffed with personnel who are familiar with relevant laws, administrative regulations?and?government rules and?experienced in the work, and who have obtained qualifications for administrative law enforcement; and
3. It?has the means to?organize?and conduct technical tests or technical appraisals where necessary.
Chapter IV?Jurisdiction?over?and Application of Administrative Penalties
Article 22?Administrative penalties shall be under the jurisdiction of the administrative organs at the places where violations?of law?occur.?Where there are other?provisions?in laws, administrative regulations or departmental rules, those?provisions?shall apply.
Article 23?Administrative penalties shall be under the jurisdiction of administrative organs with the power of?the?administrative penalty under local people's governments at or above the county level.?Where there are other provisions in?laws?or?administrative regulations, those?provisions?shall apply.
Article 24?The governments of?provinces, autonomous regions, and municipalities directly under the Central Government may, in light of their actual circumstances, decide to?delegate?the power of?imposing?administrative penalties?of the departments?of?county-level people's governments, which?is urgently needed for grassroots management,?to township people's governments?or their?sub-district offices that are?able to?effectively?exercise this power, and?may?organize?the?assessment of?their?exercise of this power?on?a regular basis. The decision shall be made public.
Township people's governments?or their?sub-district offices that undertake the power of?imposing?administrative penalties?shall?enhance?their?law enforcement capacity, and?enforce?administrative penalties?within the prescribed scope?and?in accordance with?legal procedures.
Local people's governments and?their?departments shall strengthen organization and coordination, business guidance and law enforcement supervision, establish and improve?the?coordination and cooperation mechanism?for the?administrative penalty, and?perfect the?appraisal?and?evaluation?system.
Article 25?Where two or more administrative organs have jurisdiction?over?a same?case of?an?administrative penalty,?the case?shall be under the jurisdiction of the administrative organ?that first?files it.
Disputes over jurisdiction shall be resolved through negotiation, and if negotiation fails, a request shall be submitted to the?common?administrative organ at the next higher level for designation of jurisdiction;?and?the?common?administrative organ at the next higher level may?also?directly designate jurisdiction.
Article 26?If necessary, an administrative organ may request assistance from?other?relevant?organs?for?the?enforcement of administrative penalties.?A?requested?organ shall provide the assistance in accordance with law if?the assistance matters fall within?its?functions.
Article 27?Where a violation of law is suspected of?constituting a?crime, the administrative organ?handling it?shall transfer the case to?a?judicial?organ?in a timely manner?for?investigation of?criminal?liability?in?accordance with?law. Where criminal?liability does not need to be investigated?or?it can be?exempted in accordance with law, but?an?administrative penalty?shall be imposed, the judicial organ shall transfer the case to?the?relevant administrative organ in a timely manner.
Organs?enforcing administrative penalties and judicial?organs?shall strengthen?the?coordination and cooperation?between them, establish and improve the case transfer system, strengthen the?linkage in the?transfer and reception of evidential?materials, and improve the case-handling information notification mechanism.
Article 28?When enforcing an administrative penalty, an administrative organ shall order?the?party?concerned?to?rectify the violation of law?or?to do so?within a prescribed time limit.
The illegal gains obtained by a party,?other than those?that?should?be?returned?or?used for?compensation?in accordance with law,?shall be confiscated. “Illegal gains”?refers?to?the?gains?obtained from?a?violation of law. Where there are other?provisions?in laws, administrative regulations or?ministerial?rules concerning the calculation of illegal gains, those?provisions?shall apply.
Article 29?The administrative?fine?shall not be?imposed more than once for?the same violation of law?by?a party. Where?an illegal act?violates several legal provisions, with each of them?imposing a?fine on such act,?the provision that imposes the?heaviest?fine shall apply.
Article 30?Where?a minor under the age of 14 commits a violation of law, no administrative penalty shall be imposed on him, but his guardian shall be ordered to discipline and educate him;?and where?a minor who has reached the age of 14 but not the age of 18 commits a violation of law, a lighter or mitigated administrative penalty shall be imposed on him.
Article 31 Where a mental patient or an intellectually?handicapped?person?commits a violation of law at a time when he is unable to recognize or control his own conduct, no administrative penalty shall be imposed on him, but his guardian shall be ordered to keep him under close surveillance and arrange for his medical treatment.?Where?an intermittent mental patient commits a violation?of law?when he is?in a?normal?mental state, an administrative penalty shall be imposed on him. Where?a?mental patient or?intellectually?handicapped?person?who?has not yet completely lost his capacity?for recognizing?or controlling his?own conduct?commits?a violation of law, he?may be given?a?lighter or mitigated administrative penalty.
Article 32?A party shall be given a lighter or mitigated administrative penalty under?one of following circumstances:
1.He has taken the initiative to eliminate or?reduce?the harmful consequences?of?his?violation of law;
2.?He is coerced or?induced?by others into committing a violation of law;
3.?He has taken the initiative to confess his?violation of law?that has?not been known to?an?administrative organ;
4.?He has?performed?a?meritorious?service?in cooperation with?an?administrative organ in investigating?violations of law; or
5.Other circumstances under which a lighter or mitigated administrative penalty shall be given according to laws,?administrative?regulations?or?government rules.
Article 33?Where?a person commits a minor?violation of law, rectifies?it?in a timely manner,?and causes no harmful consequences, he shall be exempted from an administrative penalty.?Where a?person commits a violation of law?for the first time?causing slight harm, and?he?makes correction?in a timely manner,?he?may?be exempted from?an?administrative penalty.
No administrative penalty shall?be imposed on?a party?who?has sufficient evidence to prove that?he has?no subjective fault.?Where there are other?provisions?in laws?or?administrative regulations, those?provisions?shall apply.
Administrative organs?shall educate?parties?who commit?violations of law, but are?exempted from administrative penalties according to law.
Article 34?Administrative organs may develop?the?discretion benchmark for administrative penalties in accordance with law, and?standardize?the exercise of discretion for administrative penalties. The discretion benchmark for administrative penalties shall be made public.
Article 35?Where?a person commits?a violation of law?that?constitutes a crime?and is?sentenced to?criminal?detention or fixed-term imprisonment by a people's court,?if he has already been given the penalty of?administrative detention?for the same?violation?by?an?administrative organ,?the?term?of?the administrative?detention?shall be?deducted from?the term of?the criminal detention or?imprisonment?in accordance with?law.
Where?a person commits?a violation of law?that?constitutes a crime?and is?sentenced to a?criminal?fine by a people's court,?if an administrative fine has already been imposed?on him?by an?administrative organ?for the same?violation,?the amount of the criminal fine shall be?offset?by?the?administrative?fine?already?imposed;?if?an administrative?fine?has?not?yet been?imposed on the person?by an?administrative organ,?it?shall?no longer?be?imposed.
Article 36?The?administrative penalty shall?not?be?imposed?for?a violation of law?that?has not been?discovered?within two years; where?such?violation?involves?the security of a?citizen’s life?or?health,?or?financial security, and has harmful consequences, the aforesaid?time?period shall be extended to five years, except as otherwise prescribed by law.
The?time?period prescribed in the preceding paragraph shall be counted from the date on which the?violation of law?is committed;?and?if the?violation?is of a continual or continuous nature, it shall be counted from the date on which?the violation?is terminated.
Article 37?The enforcement of?an?administrative penalty shall be governed by the provisions of the laws,?administrative?regulations?or?government rules?effective at the time?when?a violation of law?occurs. However,?if?the laws,?administrative?regulations?or?government rules have been amended or repealed?when a decision on?the?administrative penalty is made, and the new provisions?impose a?lighter penalty?on?the violation?or?no longer?regard?it?as?violation of law,?the new provisions shall apply.
Article 38?An?administrative penalty shall be invalid?if it has?no basis or?if?the subject?enforcing it?does not?qualify as?an administrative subject.
An?administrative penalty shall be invalid?if it is imposed in?violation of legal procedures?and?constitutes?a major and obvious violation of law.
Chapter V?Decision on Administrative Penalties
Section 1?General?Rules
Article 39?Information?about?an administrative penalty?such as the enforcement?organ, case-filing basis, enforcement?procedure,?and?relief channels shall be made public.
Article 40?Where a citizen, legal person or another organization violates administrative order and?should?be given?an?administrative penalty according to?law,?the?relevant?administrative organ must?ascertain?the fact; and where the fact of violation?is?unclear and the evidence is insufficient, no administrative penalty shall be?imposed.
Article 41An administrative organ that uses electronic monitoring equipment to collect and fix facts?of violation?of law?in accordance with laws and administrative regulations shall?undergo?legal and technical reviews to ensure that the electronic monitoring equipment meets the?relevant?standards?and is?reasonably?set?and clearly marked, and?that?the locations of electronic monitoring equipment?are made?public.
Electronic monitoring equipment shall record facts of violation?of law?in an authentic, clear, complete and accurate manner.?Administrative organs?shall review the recorded content?to see?whether?it?satisfies?the requirements; and?those?that?are not?reviewed or fail to satisfy the requirements upon review shall not be used as the evidence for?an?administrative penalty.
An administrative organ shall notify?the?party concerned?of the facts of violation?of law?in a timely manner, and?use?information technology or?take?other measures to facilitate the party’s?inquiry, statement and defense.?It shall not restrict a party’s?right?of?statement?or?right?of?defense or?do so?in?a?disguised?form.
Article 42?Administrative penalties shall be enforced by law enforcement officers with?the?qualifications for administrative law enforcement.?Except as otherwise prescribed by law,?the?enforcement of an administrative penalty?shall be?carried out by?no less than two law enforcement officers.
Law enforcement officers shall enforce law in a civilized manner, and respect and protect the lawful rights and interests of?the?parties?concerned.
Article 43?A law enforcement officer with direct interest relation or other relations?to?a case?that?may affect the?impartial?enforcement?of?law shall?withdraw from the handling of the case.
A party to a case?believing that a law enforcement officer has direct interest relation or other relations?to the?case?that?may affect the?impartial?enforcement?of?law shall have the right to apply for?the?withdrawal?of the law enforcement officer?from the handling of the case.
Where a party to a case?applies for?the withdrawal of a law enforcement?officer?from handling?the?case,?the relevant?administrative organ shall review?the application?in accordance with law, and the person in charge of the administrative organ shall make a decision?thereon. Before a decision is made, the investigation?of the case?shall not be suspended.
Article 44?Before making a decision on?an?administrative penalty,?an?administrative organ shall notify the party concerned?of the content of the administrative penalty to be?imposed, and the facts, reasons, and basis thereof,?as well as?his?rights to?make?a?statement, defend?himself,?and?request?a?hearing?and other rights?he?enjoys?according to?law.
Article 45?A?party to a case?shall have the rights to?make?a?statement?and defend?himself. An administrative organ must fully hear the?party’s?opinions and review the facts, reasons and evidence put forward by the party; and?it shall adopt the?facts, reasons?and?evidence put forward by?the?party if they are established.
An administrative organ shall not impose?a?heavier penalty?on a party?for making a?statement or defending himself.
Article 46?Evidence shall include:
1.Documentary evidence;
2.Physical evidence;
3.Audio-visual materials;
4.Electronic data;
5.Witness testimony;
6.Statements of the parties;
7.Expert?opinions; and
8.Survey transcripts and on-site disposition transcripts.
Evidence must be verified to be true before it?can be?used as the basis for determining the case facts.
Evidence obtained by illegal means shall not be used as the basis for determining case facts.
Article 47?Administrative organs?shall record the?whole process of?an administrative penalty, including?initiation, investigation and evidence collection, review, decision?making, service?of decision and?enforcement?in?such?forms as?text, audio and video in accordance with law, and keep?such records?as archives.
Article 48?Decisions on administrative penalties?that have certain social influence?shall?be?made public?in accordance with law.
Where a publicly announced?decision on?an?administrative penalty is changed, revoked,?or?confirmed?to be?illegal or invalid in accordance with law, the administrative organ?that has announced the decision?shall?withdraw the information on the decision and?publicly?explain the reasons?for the withdrawal?within three days.
Article 49?In the event of emergencies such as?the?outbreak?of a?major infectious disease, in order to control, reduce and eliminate the social?harm caused by the emergencies, administrative organs shall swiftly?impose a heavier?punishment on?those who violate the emergency response measures in accordance with law.
Article 50?An?administrative organ and its staff members shall keep confidential in accordance with law the state secrets, trade secrets or personal privacy?which they come to know in?the enforcement of?an?administrative penalty.
Section 2?Summary Procedure
Article 51?A?decision on?an?administrative penalty?may be made on the spot if?it involves the imposition?of?a fine of not more than?RMB?200 yuan on a citizen?or?not more than?RMB?3,000 yuan?on?a legal person or another organization,?or a warning,?and if the fact of violation of law is irrefutable and there is a legal basis for the decision.?Where there are other?provisions?in laws, those?provisions?shall apply.
Article 52?A law enforcement officer?who?makes a decision on?an?administrative penalty on the spot shall?show?his law enforcement?ID card?to the party?concerned,?fill out?a written decision on?the?administrative penalty with predetermined format and a serial number, and deliver it to the party on the spot.?If?the?party refuses to sign?his name?for?the?receipt?of the?written decision on?the?administrative penalty,?this?fact?shall be indicated?in the written decision.
A written decision on?an?administrative penalty as prescribed in the preceding paragraph shall specify the?violation of law committed by?the party, the type of and basis for the administrative penalty, the amount?of fine,?the time and?place of?the administrative penalty, the?channels?and time limits?for applying for administrative reconsideration?or bringing?an?administrative lawsuit, and the name of the administrative organ?imposing the penalty, and?be?signed by?or?affixed with the?seal?of?the law enforcement officers.
A decision on?an?administrative penalty made by?a?law enforcement officer on the spot shall be reported to the administrative organ?to which?the?law enforcement officer?belongs?for record.
Article 53?A decision on?an?administrative penalty made on the spot shall be?carried out by the party in?accordance with?the provisions of?Articles?67 to 69 of this Law.
Section 3?Ordinary Procedure
Article 54?Except for the administrative penalties that may be imposed on the spot as prescribed in Article 51 of this Law, if an?administrative organ finds that?a citizen,?a?legal person or another organization?has committed an act for?which?an?administrative penalty shall be?imposed?in accordance with law, it?must conduct investigation in a comprehensive, objective and?impartial?manner and collect relevant evidence;?and where necessary, it?may conduct inspection?in?accordance with?the provisions of laws and?administrative?regulations.
Where the standards for case-filing are met, the administrative organ shall file?a?case in a timely manner.
Article 55?When conducting investigation or inspection, a law enforcement officer shall show the parties or persons concerned his law enforcement?ID card.?A?party?or?a?person concerned shall have the right to request?law enforcement officers to produce law enforcement?ID cards.?Where?a law enforcement officer fails to produce?it,?a?party?or?a?person concerned shall have the right to refuse to accept?the?investigation or inspection.
A party or?a?person concerned shall truthfully answer questions and assist in the investigation or inspection, and shall not refuse or obstruct the investigation or inspection. Transcripts shall be made for the questioning?or inspection.
Article 56?When collecting evidence, an administrative organ may obtain evidence through sampling; and under circumstances?where?the evidence may be destroyed?or?lost or?become?difficult?to?obtain?later,?the administrative organ?may,?with approval of the person in charge of?it,?first?register the evidence?for?preservation, and make a?timely?decision on?the?disposition of the evidence?within seven days, during?which?period?the parties or persons concerned shall not destroy or transfer the evidence.
Article 57?After?the?conclusion of an investigation, the person in charge of an administrative organ shall examine the investigation results and make?one of?the following decisions in light of different circumstances:
1.To impose?an?administrative penalty in light of the seriousness and the specific circumstances of the case where a violation of law has?indeed?been committed and for which?an?administrative penalty?should?be imposed;
2. Not?to impose?an?administrative penalty where a violation of law is minor and?the?administrative penalty?can be exempted?according to law;
3.Not?to impose?an?administrative penalty where the facts?of?violation of law are not established;?or
4.?To transfer the case to a judicial organ where a violation of law is suspected of constituting a crime.
Before imposing an administrative penalty for a violation of law which is of a complicated or grave nature, the leading members of an administrative organ shall make a collective decision through discussion.
Article 58?Under one of the following circumstances, a decision on?an?administrative penalty?must undergo a?legal review?by?a?person?responsible for?legal review?of?decisions?on administrative penalties?before?it?is made by?the person in charge of?an?administrative organ;?and?no decision shall be made without?undergoing or passing?a legal review:
1.A major public interest?is?involved;
2.?The case is?directly related to the major rights and interests of a party or a third person?and has undergone?a?hearing procedure;
3.The case is complicated and involves multiple legal relations; or
4.Other circumstances under which legal review shall be conducted as prescribed in laws and?administrative?regulations.
The?staff member of an administrative organ that conducts the legal review of a decision?on?an?administrative penalty for the first time shall pass the National Unified?Legal Professional?Qualification Examination and obtain the legal professional?qualification.
Article 59?To impose an administrative penalty according to the provisions of Article 57 of this Law, an administrative organ shall?prepare?a written decision on?the?administrative penalty. A written decision on?the?administrative penalty shall specify the following particulars:
1.The name or title, and address of the party?concerned;
2.The facts and evidence?of?the violation of law,?administrative?regulations?or?government rules;
3.The type and basis?of?the?administrative penalty;
4.The manner of and time limit for?carrying out?the?administrative penalty;
5.The channels?and time limits?for applying for administrative reconsideration?or bringing?an administrative lawsuit; and
The title of the administrative organ that makes the decision on?the?administrative penalty and the date on which the decision is made.
A written decision on?an?administrative penalty must?be affixed with?the seal of the administrative organ that makes the decision.
Article 60?An administrative organ shall make a decision on?an?administrative penalty within 90 days of the date of filing a case of?the?administrative penalty.?Where there are other?provisions?in laws, administrative regulations or?government?rules, those?provisions?shall apply.
Article 61?A written decision on?an?administrative penalty shall be delivered to?a?party on the spot after announcement;?and?where the party is absent, the administrative organ shall, within seven days, serve the written decision on?the?administrative penalty on the party in accordance with the relevant provisions of the?Civil Procedure Law of the People's Republic of China.
Where?a?party agrees and signs a confirmation letter,?an?administrative organ may serve the written decision on?the?administrative penalty on the party by fax, e-mail,?or?other means.
Article 62 A?decision on?an?administrative penalty shall not be made?where an administrative organ and its law enforcement officers?fail to notify the party of the content of the administrative penalty to be?imposed, and the facts, reasons, and basis thereof?in?accordance with?the provisions of?Articles 44 and 45 of this Law, or refuse to hear the statement or defense of the party before making?the?decision, except where?the party explicitly waives the right to?make?a?statement?or defend himself.
Section 4?Hearing Procedure
Article 63?Before making decisions on?one of?the following?administrative penalties, an administrative organ shall notify the party?concerned?of?his?right to request a hearing, and where?the?party requests a hearing, the administrative organ shall organize?one:
1.A relatively large fine;
2.Confiscating relatively large amount of illegal gains?or?illegal property of relatively?high?value;
3.Lowering the level?of?qualification?or?revoking?a?license;
4. Ordering?the?suspension of production or business,?ordering the?closure?of business,?or?restricting engagement in certain business operations;
5.Other relatively?heavy?administrative penalties; or
6.Other circumstances as prescribed in laws, administrative regulations or government rules.
當事人不承擔行政機關組織聽證的費用。
Article 64?A hearing shall be organized?according to?the following procedures:
1.To request a hearing, a party shall submit the request within five days after being notified by the administrative organ;
2.The?administrative organ shall notify the party and persons concerned of the time and place for holding a hearing seven days before?it?is held;
3.Except for?those involving?state secrets, trade secrets, or personal privacy that shall be kept confidential in accordance with law, a hearing shall be held in public;
4.?A?hearing shall be presided over by a person designated by?the?administrative organ other than?an?investigator of the case; if?the?party believes that?a?person has a direct interest in the current case, he shall have the right to apply for?the?withdrawal?of that?person;
5.A?party may participate in?a?hearing in person, or he may entrust one or two persons to act?as his agent(s) in it;
6.Where a party?or?his agent refuses?to attend?a?hearing without justifiable?reasons or withdraws?from?it?without permission, it shall be deemed that he has?waived the right to?a?hearing, and the administrative organ shall terminate the hearing;
7.At?a?hearing, the investigator shall state the facts of?the?party's violation?of law, produce evidence and offer suggestion on?the?administrative penalty, and the party shall defend himself and make cross-examination; and
8. Transcripts shall be made for a hearing. The transcripts shall?be?signed by?or?affixed with the?seal of the party or his agent(s)?after verification thereby. Where the party or his agent refuses to sign?his name?or affix?his?seal,?this fact?shall be indicated in the transcripts by the presider of the hearing.
Article 65?After?the?conclusion of a hearing,?an?administrative organ shall, on the basis of the transcripts?of the?hearing, make a decision in accordance with the provisions of Article 57 of this Law.
Chapter VI?Enforcement of Administrative Penalties
Article 66?After a?decision on?an?administrative penalty?is?made in accordance with law,?it shall?be?carried out by the party?within the time limit specified in the written decision on?the?administrative penalty.
Where?a?party?truly?has?financial difficulties and needs?to postpone the payment of?a?fine or?to?make payment in installments,?he may do so?after applying?to and obtaining?approval of the administrative organ.
Article 67?Administrative organs?that make decisions?on fines?shall be separated from the?organs?that collect fines.
An?administrative organ making decisions?on administrative penalties?and its law enforcement officers shall not collect?by themselves?any?fine other than those to be collected on the spot?in?accordance with?the provisions of?Articles 68 and 69 of this Law.
A party shall, within 15 days from the date of receipt of a written decision on?an?administrative penalty, pay?the?fine to the designated bank or through the electronic payment system. The bank shall accept?the?fine and turn?it?over directly to the state treasury.
Article 68?Where a decision on?an?administrative penalty is made on the spot in accordance with the provisions of Article 51 of this Law, a law enforcement officer may collect?the?fine on the spot under one?of?the following circumstances:
1.A fine of not more than 100 yuan is?imposed?in accordance with law; and
2.?If the fine is not collected on the spot,?it?will be?difficult to?enforce?the decision?afterwards.
Article 69?Where, after a decision on?a?fine is made by an administrative organ and its law enforcement officers?in accordance with the provisions of?Articles 51 and 57 of this Law, it is?truly?difficult for?a?party to pay the fine to the designated bank or through the electronic payment system in a?place which is?remote, on water or?not easily?accessible, the administrative organ and its law enforcement officers?may,?at the?request?of?the party, collect the fine on the spot.
Article 70?An administrative organ and its law enforcement officers?that collect a fine on the spot must issue a special receipt uniformly made by the public finance department under the State Council or the public finance department of the people's government of?a?province, autonomous region, or municipality directly under the Central Government; where no special receipt uniformly made by?a?public finance department is issued, the party shall have the right to refuse to pay the fine.
Article 71?A fine collected by a law enforcement officer on the spot shall be turned over to?an?administrative organ within two days from the date on which the fine?is?collected;?a?fine collected on the spot on water shall be turned over to?an?administrative organ within two days from the date of landing; and the administrative organ shall turn over the fine to the designated bank within two days.
Article 72?Where a party fails to?carry out?a decision on?an?administrative penalty within the prescribed time limit, the administrative organ making the decision may adopt the following measures:
1.Imposing an additional fine at the rate of 3% of the?original?fine on a daily basis where a fine is not paid within the prescribed time limit,?but?the amount of the additional fine shall not exceed the amount of the?original?fine that?should?be paid;
2.Selling by auction?or lawfully disposing of?sealed up?or?seized property, or debiting frozen deposits?or?remittance to offset the fine in accordance with law;
3.Adopting other administrative compulsory enforcement methods in accordance with law; or
4.Applying to?a?people's court for compulsory enforcement in accordance with the provisions of the Administrative?Enforcement?Law of the People's Republic of China.
Where an administrative organ approves?the postponement of?payment of?a?fine?or?payment of?a?fine in installments, the time limit for applying to the people's court for compulsory enforcement shall be calculated from the end of the time limit for the?postponement of?payment?of the fine?or payment of?the?fine in installments.
Article 73?Where a party refuses to accept a decision on?an?administrative penalty and applies for administrative reconsideration or brings an administrative lawsuit, enforcement of the administrative penalty shall not be?suspended, except as otherwise prescribed by law.
Where a party refuses to accept a decision on administrative penalty?that?restricts?personal freedom, and applies for administrative reconsideration or brings an administrative lawsuit, he may file an application with the organ?that has?made?the decision for?a?suspension of?enforcement. Where?the application meets?the?conditions?prescribed in law,?the?enforcement shall be suspended.
Where a party applies for administrative reconsideration or brings an administrative lawsuit,?an?additional?fine?shall?not be calculated?during the period of administrative reconsideration or administrative lawsuit.
Article 74 With?the exception of?the articles that shall be destroyed in accordance with law, the illegal property confiscated in accordance with law must be sold by public auction or disposed of in accordance with relevant?State?regulations.
Fines, confiscated illegal gains or money obtained from?the?auction of confiscated illegal property shall be turned over to the state treasury in?full, and no administrative organ or individual shall, by any means, withhold?such property or money,?share?it?out privately, or do so in?a?disguised form.
Fines, confiscated illegal gains or money obtained from?the?auction of confiscated illegal property shall not be linked to the?performance appraisal?or evaluation of?the?administrative organ making the decision on?the?administrative penalty or its staff members?either?directly or in?a?disguised?form. Except those?that?shall be?returned?or?paid as?compensation?in accordance with law, no public finance department shall, by any means,?give?the?fines?collected, illegal gains?confiscated, or?the?money obtained from?the?auction of confiscated?illegal property?back?to the administrative organ?that has?made the?decision on?the?administrative penalty.
Article 75?Administrative organs shall establish and improve?a?supervisory system for administrative penalties.?People's governments at or above the county level shall organize and carry out?appraisal?and?evaluation?of administrative law enforcement on a regular basis, strengthen the supervision over and?inspection of administrative penalties, and?standardize?and guarantee the enforcement of administrative penalties.
Administrative organs shall accept social supervision when enforcing administrative penalties. A citizen, legal person or another organization shall have the right to file an appeal?or accusation against an administrative penalty enforced by an administrative organ; and the administrative organ shall?carefully?examine the appeal or accusation, and?take the initiative to?make correction upon discovery of any error.
Chapter VII?Legal?Responsibilities
Article 76?Where an administrative organ imposes an administrative penalty under?one?of the following circumstances,?it shall be ordered by?an?administrative organ at?a?higher level or?a?relevant?organ?to make correction, and the directly responsible persons?in charge?of?it?and other directly responsible persons?shall be given?disciplinary?sanctions in accordance with law:
1.There is no statutory basis for?the?administrative penalty;
2.The type?or?range of?the?administrative penalty is changed without?authorization;
3.The statutory procedures for?the?administrative penalty?are violated;
4.The provisions of Article 20 of this Law concerning entrusting?the?enforcement of?the?penalty are violated; or
5.A law enforcement offer has not obtained the law enforcement?ID card.
An administrative organ failing to file a case that meets the standards for case-filing in a timely manner shall be?dealt with?in accordance with the provisions of the preceding paragraph.
Article 77?Where an administrative organ, when imposing?a?penalty?on a party,?fails to use receipts for fines or confiscation of property,?or uses receipts that are not made by the statutory department, the party?concerned?shall have the right to refuse?to accept?the penalty?and file an accusation?against it, the illegal receipts used?by it?shall?be?confiscated?and destroyed by an?administrative organ at a higher level or?a?relevant?organ, and the directly?responsible?persons in charge?of it?and other directly?responsible?persons?shall be given disciplinary sanctions?in accordance with law.
Article 78?Where an administrative organ collects fines?by itself?in violation of?the provisions of Article 67 of this Law,?or?a public finance department?gives?the?fines?collected, illegal gains confiscated or auction proceeds?obtained by an?administrative organ?back?to the?administrative organ?in violation of the provisions of Article 74 of this Law,?it?shall be ordered by an?administrative organ at a higher level or?a?relevant department?to make correction, and the directly responsible persons in charge?of it?and other directly responsible persons?shall be given disciplinary sanctions?in accordance with law.
Article 79?Where?an administrative organ withholds?or privately shares?out?fines?or?confiscated?illegal gains or property or?does so?in a disguised?form, the?fines,?confiscated?illegal gains or property?shall be recovered by a?public finance department or?another?relevant?organ?and the directly responsible persons?in charge of it?and other directly responsible persons?shall be given disciplinary sanctions?in accordance with law; where the circumstances are serious and a crime is constituted, criminal?liability?shall be investigated in accordance with law.
A law enforcement officer?who?takes?advantage of his?position to?ask for or accept property?from another person,?or take?into his own?possession?the?fines collected shall be?investigated for?criminal?liability?in accordance with law?if such an act?constitutes?a crime;?or he?shall be given?disciplinary?sanctions in accordance with law?if?the offense is minor and?does?not constitute a crime.
Article 80?Where an administrative organ uses or destroys sealed up?or?seized property,?thereby causing?losses to?a?party, it?shall make compensation in accordance with law, and the directly responsible persons?in charge?of it?and other directly responsible persons shall be given?disciplinary?sanctions in accordance with law.
Article 81?Where an administrative organ?violates law in?implementing?inspection measures or enforcement measures,?thereby causing?personal or property damages?to a citizen or losses to a legal person or another organization, it?shall make compensation in accordance with law, and the directly responsible persons?in charge?of it?and other directly responsible persons shall be given?disciplinary?sanctions in accordance with law; and where the circumstances are serious and a crime is constituted, criminal?liability?shall be investigated in accordance with law.
Article 82?Where an administrative organ does?not transfer?a?case to?a?judicial organ for investigation of criminal?liability?as?it?should?in accordance with law,?but?imposes?an?administrative penalty?in place of a?criminal penalty,?it shall be ordered by an?administrative organ at a higher level or?another?relevant?organ?to make correction,?and?the directly responsible persons in charge?of it?and other directly responsible persons shall be given disciplinary sanctions in accordance with law; and where the circumstances are serious and a crime is constituted, criminal?liability?shall be investigated?in?accordance with?law.
Article 83?Where an administrative organ fails to?stop?and punish?an?illegal act that?should?be?stopped?and punished, thus causing?damages?to the lawful rights and interests of a citizen, a legal person or another organization, public interests,?or?social order, the directly responsible persons?in charge?of it?and other directly responsible persons shall be given?disciplinary?sanctions in accordance with law; and where the circumstances are serious and a crime is constituted, criminal?liability?shall be investigated in accordance with law.
Chapter VIII?Supplementary Provisions
Article 84?This Law shall apply to foreign nationals, stateless persons, and foreign organizations?that commit?violations of law?in the territory of the People's Republic of China?and?that?should?be given?administrative penalties, except as otherwise prescribed by law.
Article 85?For the purposes of this Law,?the terms?“two days,” “three days,” “five days,” and “seven days”?refer to?working days, excluding legal holidays.
Article 86?This Law shall come into force?as of?July 15, 2021.