Safety Of Administrative Penalty Discretion Applicable Rules (For Trial Implementation)

Original Language Title: 安全生产行政处罚自由裁量适用规则(试行)

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Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/gwybmgz/201011/20101100328940.shtml

Safety of administrative penalty discretion applicable rules (for trial implementation)

    (July 15, 2010, State administration of work safety announced as of October 1, 2010, 31st) Chapter I General provisions

    First in order to correct application of work safety laws, administrative regulations and Department rules, regulate the safety supervision and management departments legal, properly exercised discretion in administrative punishment, in accordance with the law on administrative punishment, the Safety Act, occupational-disease-prevention laws and other legal provisions, administrative regulations and Department rules, these rules are formulated.

    Second article County above safety supervision management sector or its delegate implementation administrative punishment of organization or institutions (following collectively security regulatory law enforcement organ) in accordance with safety legal, and administrative regulations and sector regulations made administrative punishment exercise free CD volume right of, applies this rules; specific implementation administrative punishment need free CD volume of, reference safety administrative punishment free CD volume standard (following referred to standard) implementation.

    Coal mine safety watchdog for coal mine safety violations made the exercise of the discretionary power of administrative penalty, the coal mine safety supervision of administrative penalty discretion applies standards (for trial implementation).

    Laws, administrative regulations and local regulations on free judgment for administrative punishment otherwise provided, apply its provisions; former national security authority, the national State administration of work safety announced regulations inconsistent with this rule, these rules shall apply.

    Third article this rules by said of administrative punishment free CD volume right, is refers to security regulatory law enforcement organ in on safety violations implementation administrative punishment Shi, according to legislation purpose and administrative punishment of principles, in legal, and administrative regulations and sector regulations provides of administrative punishment of type and range within, integrated considerations illegal of facts, and nature, and means, and consequences, and plot and corrected measures, factors, right, and appropriate to determine administrative punishment of type, and range or made not administrative punishment decided of select applies permission.

    Article security supervision of law enforcement organs at all levels shall strengthen the respective safety acts of discretion of administrative penalty within the scope of supervision and inspection.

    Superior safety supervision law enforcement authorities have the power to subordinate the security law violation or improper correction or cancellation of administrative punishment.

    Chapter II principles of administrative punishments discretionary considerations

    Article fifth exercise of discretion in administrative punishment shall follow the principles of due process, in strict compliance with procedures established by laws, administrative regulations and Department rules.

    Article sixth exercise of discretion in administrative penalties shall follow the principles of lawfulness, fairness, impartiality, openness, the punishment fit the principle and the principle of combining punishment with education, safeguard the legitimate rights and interests of citizens, legal persons and other organizations to ensure the legitimacy of the exercise of discretion of administrative penalty and rationality. Article seventh exercise of discretion in administrative penalties shall take facts as the basis and law as the criterion, comprehensive analysis of the offence subject, object, subjective and objective factors such as the general discretion to determine whether administrative punishment or administrative penalty shall be imposed the type, amplitude.

    Types of administrative penalties, it should be illegal facts, characters, plot, cognitive dissonance, and harm.

    Imposed on such subjects the same character, plot or similar, their harmful effect comparable to a similar offence in the exercise of the right of free judgment for administrative punishment, the applicable legal basis, types of penalties should be consistent, punishment should be equal.

    Eighth with an illegal violation of various laws, administrative regulations, or the rules and regulations, where applicable, specific legal provisions should be guided by the following principles:

    (A) the provisions of the law applicable to priority effective;

    (B) the legal effect of the same, which belongs to the priority application of special provisions;

    (C) the legal effect of the same, after the effective time shall prevail.

    Nineth law set the administrative punishment for the same offence, exercise discretion in accordance with the following principles:

    (A) the same law provides for an offence should (could) imposing fines on administrative punishments to determine in the light of the standards of their fines to be refined;

    (B) the same law provides for an offence should (could) of different kinds (including warnings, confiscation of illegal proceeds, temporary suspension or revocation of license, etc) administrative penalties, reference the standards given the kinds of administrative penalties;

    (C) committed by the same law a violation according to the seriousness of different types of administrative punishment in the light of the standards set by the plot given the kind of administrative punishment.

    Tenth production and business operation entities and persons concerned break the different legal requirements, different illegal or violates the terms of the same situation, there are two or more should be given administrative punishment for violations, should be subject to different legal provisions different or the same legal provisions offence cases, discretion, respectively, and combined penalty.

    Chapter III administrative penalty discretion in the application of rules

    11th law and administrative regulations or departmental regulations, such provision shall be ordered to correct or rectification, should first be written order the party to be corrected within the prescribed party fails to make corrections, and decides administrative penalty according to law.

    12th laws, administrative regulations, or the variety of penalties should be provided for in regulations and shall not opt in; provisions and may be of, you can choose to apply.

    Laws, administrative regulations or the regulations expressly provides that kind of punishment may single may be the, you can choose to apply, but should distinguish between a penalty and free items.

    Provisions of laws and administrative regulations shall be forfeiture, confiscation illegal obtained, other penalties may not be directly applicable to other punishments.

    13th law provisions, administrative regulations, or the rules have been kind, discretionary implementation of freedom shall not change the kind of administrative punishment; party penalties, fines shall not be higher than laws, administrative regulations or regulations prescribed amount limit shall not be less than the prescribed amount limit.

    14th Party, one of the following circumstances shall punishment according to law:

    (A) have reached the age of 14 citizens of 18 years of safety violations;

    (B) the initiative to eliminate or reduce safety violations hazard consequences;

    (C) stress the implementation of safety violations by others;

    (D) support safety and regulatory enforcement authorities investigating safety violations, has performed meritorious service;

    (E) active, surrendered himself to safety control law enforcement agencies for their own illegal acts;

    (Vi) other extenuating circumstances stipulated by laws and administrative regulations.

    There are extenuating circumstances, should be in the mid-range of statutory penalties administrative penalties criteria established, but shall not be lower than the lower limit of statutory penalties.

    The first paragraph of this article (d) referred to the meritorious, refers to expose other safety violations, and verified; or provide other safety violations to investigate important clues and verified; or prevent others to commit safety violations; or assist the judiciary acts to catch the other criminal suspects.

    15th Party, one of the following circumstances, it shall be given a heavier punishment:

    (A) endanger public security or safety of other production and business units and their personnel, the rectification, it fails to mend;

    (B) within one year for the same safety violations committed by two or more administrative punishment;

    (C) refusing to inadequate corrective or corrective action, its illegal status;

    (D) refuse or obstruct the Executive or threats of violence by law enforcement officials;

    (E) implementation of safety violations during emergencies;

    (F) the concealment, destruction of illegal evidence;

    (VII) offences aggravated, cause of death (injuries, acute industrial poisoning) or serious social impact;

    (H) intentionally committed illegal acts;

    (IX) the informant, witness retaliation;

    (J) failing to screening, control potential accidents;

    (11) go into hiding after a production safety accident or false claim and skimming;

    (12) with other heavier punishment as stipulated by laws and administrative regulations.

    There are aggravating circumstances, should the statutory penalty within range higher or the highest standards determine the punishment, but the punishment shall not be higher than the statutory rate cap.

    16th party has one of the following situations shall not be penalized:

    (A) insufficient evidence, illegal facts cannot be established for safe production;

    (B) minor and correct safety violations, no harmful consequences;

    (C) citizens of the age of 14 safety violations;

    (D) the mentally ill person cannot be identified or cannot control their behavior when implementing safety violations;

    (E) safety violations is not discovered within two years, except as otherwise provided by law;

    (F) the provisions of laws and administrative regulations, departmental rules in other circumstances.

    Term of the fifth rule of the preceding paragraph, from the date on which the violation occurred, continuous or continuing status for offences, from the date on which the Act ended.

    17th by the standard illegal income, calculated in accordance with the following provisions:

    (A) the production, processing, production and processing of products and its sales revenue as illegal income;

    (B) the sale of goods, with sales revenue as illegal income;

    (C) providing safety services such as mediation, rental, service income or remuneration as illegal income;

    (D) sales revenue cannot be calculated, according to the local production and business operation entity of similar size average sales revenue;

    (E) service revenues, remuneration cannot be calculated, according to the local industry average income or remuneration calculation of the same service.

    The fourth chapter free judgment for administrative punishment of the auditing and oversight
18th outside of administrative punishment on the spot, free judgment for administrative punishment results system.

    Case survey end Hou, case hosted personnel should on intends made administrative punishment of type and range proposed recommends, and description exercise free CD volume right of facts, and reason and according to; case audit personnel should on punishment according to, and lines, proposed audit views, and will audit views submitted security regulatory law enforcement organ head review decided; security regulatory law enforcement organ has established administrative punishment case Audit Committee of, audit views reported case Audit Committee review decided.

    Lighter or heavier penalties for safety violations result of discretion should be monitored by the security head of the law enforcement agencies decided collectively.

    Article 19th for the record review system of administrative punishment cases.

    Safety supervision of law enforcement agencies in charge of legal affairs institutions at all levels are responsible for the record review of the administrative punishment cases, various types of entities that work safety administrative punishment cases, enforcement procedures and discretionary ex post facto legitimate, appropriate and relevant evidence and case files for review and oversight of administrative law enforcement on a regular basis.

    Article 20th production results of discretion of judgment for administrative punishment shall be made public and allow public access, that involve State secrets, business secrets or private affairs otherwise.

    Article 21st administrative supervisory organization on safety supervision law enforcement agencies and their staff to exercise their right of free judgment for administrative punishment implementation monitoring.

    Safety regulatory enforcement agencies and their staff to exercise their right of free judgment for administrative punishment obviously inappropriate, and must be corrected in a timely manner; their responsibilities in accordance with the work safety supervision duties and provisional regulations on administrative accountability for law enforcement.

    The fifth chapter by-laws

    22nd article in violation of the relevant provisions of the law on safety in production safety accidents, production and business operation entity shall be given in the main charge, individual investors and other persons operating a fine, in accordance with the Safety Act, 80th, 81st, and punished as such.

    In violation of the law on work safety examination of the relevant laws, administrative regulations, departmental rules of production safety accidents, production and business operation entity shall be given in the main charge, individual investors and other persons operating a fine, in accordance with the provisions of the regulations on production safety accident reporting, investigation and handling of the punishment.

    23rd free judgment for administrative punishment reviews and record reviews of specific measures by the local safety supervision under this authority actually adopted by law enforcement agencies at all levels, and reported to the regulatory enforcement authorities for the record level security.

    Article 24th of safety in an unlawful act constitutes a criminal offence, shall, in accordance with the prescribed procedures handed over to judicial authorities, the penalty shall not be fined. 25th article of the rules come into force on October 1, 2010.