Interim Provisions On The Procedure Of Administrative Penalty

Original Language Title: 文物行政处罚程序暂行规定

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(January 24, 2005, the Ministry of culture announced come into force on the date of promulgation, 33rd) Chapter I General provisions article to standardize the Administrative Department for cultural relics administrative penalty practices, protect the legitimate rights and interests of citizens, legal persons and other organizations, according to the People's Republic of China Law on administrative punishment, the People's Republic of China cultural relic protection law and other relevant provisions of laws and administrative regulations, this provision is enacted. Second Administrative Department for cultural relics under the State Council and the Administrative Department for cultural relics at and above the county level, for acts in violation of conservation laws and regulations impose administrative penalties, these provisions shall apply.
    Otherwise provided by laws and regulations, from its provisions.
    Article III Administrative Department for cultural relics administrative punishments should be guided by the following principles: (a) the laws, regulations and rules as the basis, (ii) in accordance with statutory procedures; (iii) fair and equitable exercise of the executive powers conferred by law; (d) adhere to combination of punishment and education. Fourth superior administrative Department for cultural relics to subordinate administrative departments for cultural relics administrative penalty is to carry out supervision. Superior Administrative Department for cultural relics Administrative Department for cultural relics of subordinates the decision on administrative penalty made illegal, can be ordered to rectify.
    Fails, the superior administrative Department for cultural relics authority to make the decision on administrative penalty according to law on illegal amendment or cancellation. Chapter II jurisdiction article fifth administrative punishment by the violations to the local cultural relics administration departments at or above the county level shall have jurisdiction.
    Except as otherwise provided by laws and regulations.
    Sixth Administrative Department for cultural relics under the State Council supervision and guide local administrative departments for cultural relics administrative punishment cases that have major impact nationwide.
    Provincial cultural relics Administrative Department in accordance with the relevant provisions and the actual situation of the region, provided within the geographical area of jurisdiction.
    Article seventh higher administrative Department for cultural relics when necessary according to law subordinate Administrative Department for cultural relics under the direct authority of the administrative punishment cases; subordinate administrative departments for cultural relics administrative punishment cases within its jurisdiction, when considered necessary by the superior administrative departments for cultural relics, you can report to the higher administrative departments for cultural relics.
    Article eighth two or more local administrative Department for cultural relics for the same illegal act has jurisdiction, should be governed by filing the Administrative Department for cultural relics.
    Administrative Department for cultural relics of a jurisdictional dispute arises, by the disputing parties settled through consultation and submitted to the common jurisdiction of the Administrative Department for cultural relics at a higher level, the common jurisdiction of the Administrative Department for cultural relics at a higher level can also be specified directly. Nineth found does not belong to the local cultural relics administration departments jurisdiction or competent, it shall transfer the relevant materials have jurisdiction over cultural relics administrative department or relevant administrative departments, and reported to the Administrative Department for cultural relics at a higher level for the record.
    Transferred to the Administrative Department for cultural relics shall transfer the outcome of the case will promptly acknowledge cases of the Administrative Department for cultural relics.
    Transferred to the Administrative Department for cultural relics and if considered improper transfer, shall be submitted to the joint jurisdiction of the Administrative Department for cultural relics at a higher level shall not be transferred again.
    Chapter III filing tenth Administrative Department for cultural relics discovered violation cases should be processed in a timely manner in the following ways: (a) found in the inspection, (ii) report to the citizens, legal persons and other organizations, and (iii) assigned by the supervisor and subordinates report to deal with, or transferred by the departments concerned.
    11th cultural relics administrative departments to apply the general procedures for dealing with violations, should be filed.
    12th Administrative Department for cultural relics discovered violations has the following situation should be filed in the 5th: (a) there is a clear offence suspects; (b) objectively illegal facts and (iii) within the scope of administrative punishment; (d) belong to the jurisdiction of the Department.
    Decision filed, shall be made out by filing form, the approval of the Department head, and identify more administrative law enforcement officers for the undertaker.
    13th cultural relics administrative law enforcement officers in the course of law enforcement inspection, found violations are being implemented, the urgency of the situation, you can take the following measures: (a) to stop or correct violations, and (ii) in connection with cultural relics in accordance with antecedent register; (c) collect or obtain other relevant evidence.
    Cultural relics related to administrative law enforcement personnel shall promptly report belongs to the Administrative Department for cultural relics and materials, and handle the filing procedures.
    14th administrative law enforcement personnel under any of the following circumstances, cannot be established for the case the contractor: (a) is a party or a close relative of the case, (ii) and has a direct interest in the case and (iii) has other relations with the parties to the case, could affect the impartial handling of the case. Case the Undertaker with the above circumstances, shall voluntarily apply for withdrawal. When one of the parties considers that contractors comply with the above case, you can avoid application to the Administrative Department for cultural relics.
    Case the undertaker avoided decided by the heads of departments.
    Fourth chapter investigation after the 15th case, case the contractor shall collect or obtain evidence. 16th sponsor investigations of the case shall not be less than two.
    When the undertaker in the investigation of the case, shall produce their certificates.
    Involving State secrets, business secrets and personal privacy, the cases the contractor shall keep a secret. 17th case of contractors you can ask the parties and reference. Asked should be carried out separately.
    Asked should be informed before its factual presentation of the facts, to give evidence. Ask a record shall be kept, those questioned and checked; no reading ability, should be read to them. Record is subject to errors, omissions, and should be allowed to correct or supplement. After it has been checked, by the person being interrogated on a page-by-page in the record signed or sealed. Contractors should also sign the record of the case.
    Person questioned refuses to sign or seal, the contractors should be indicated on the record of the case. 18th case people to carry out site inspections, the Party shall be present.
    Contractors shall make an on-site inspection of the case record, the Parties shall sign and views on the authenticity of the transcript; party refuse to be present or to sign and indicate in the record shall be undertaken by a case at the scene. The 19th case sponsor may request the parties to and references provide related proof materials and materials on relevant material people signed or sealed.
    Materials provider refuses to sign or seal, the contractors should be indicated on the materials of the case. 20th case contractors obtain evidence should be original and original.
    There is difficulty in access to original, original, by submitting evidence copies of units or individuals in the seal or signature on a copy, annotated "with the original () the same" words or text. 21st in evidence may be destroyed or lost, or difficult to obtain later case, contractor shall fill out the Advanced registration and preservation of evidence in a case table, reported the approval of the Department head.
    Advanced registration and preservation of evidence, the case issued by the contractor shall give the parties notice of advance registration and preservation of evidence. 22nd cultural relics administrative departments when implementing advanced registration and preservation of evidence, a party should present.
    The party refused to be present, Undertaker who may interested persons are invited to participate in the case.
    Advanced registration and preservation of evidence should be list articles, hosted by the case, the parties or other relevant person's signature or seal.
    Party refuses to sign or seal or receiving inventory, which shall be the undertaker signed the list and indicate the circumstances of the case.
    23rd for advanced registration and preservation of evidence, shall make a decision within the 7th: (a) the need for technical inspection or verification, sent to the inspection or verification; (b) the law does not require the confiscation of goods, returned to the party, and (iii) shall be handed over to relevant departments according to law, relevant departments of the surrender.
    Otherwise provided by law, from its provisions. 24th Administrative Department for cultural relics in the processing of cases, you need to entrust other administrative departments for cultural relics, shall present the cultural relics law enforcement of letters rogatory.
    Entrusted with the Administrative Department for cultural relics should be actively investigated.
    25th article on professional issues need to be addressed in the course of the case, the administrative departments shall entrust a specialized agency or engage professional advice. The identification of heritage, and should handle the cases where the Administrative Department for cultural relics expert opinions of the provincial cultural relics appraisement institutions prevail.
    Of national cultural relics appraisement institutions can handle the case of application of the Administrative Department for cultural relics, the provincial accreditation body of expert opinion to carry out a review.
    First section of the fifth chapter the decision summary proceedings the 26th for the illegal facts are clear, and the evidence should be made of the following administrative penalties in accordance with law, would be able to make a decision of administrative penalty: (a) a warning, (ii) fined a maximum of 50 Yuan for citizen; (c) below 1000 Yuan fine for legal persons or other organizations.
    27th the administrative decision for administrative penalty from law enforcement officers, should produce their law enforcement documents, stamped with the seal of the Administrative Department for cultural relics and submit the decision on the spot.
    Penalty decision shall set forth the party's illegal administrative penalty according to (name of applicable laws, rules, regulations and specific provisions), specific content, time and place of the punishment, against an administrative punishment decision may apply for administrative reconsideration or bring an administrative suit way, as well as the name of the Administrative Department for cultural relics, and so on.
    Decision on the spot after the book was completed and signed by the administrative law-enforcement officers, the spot party.
    28th administrative law enforcement of the decision on administrative penalty made on the spot, shall be reported to the respective administrative departments for cultural relics.
    Section II general procedure the 29th after the end of an illegal act by filing and investigating cases contractors shall make investigation final report, review reported to the head of the Administrative Department for cultural relics.
    30th article handle case of heritage administrative sector head on survey results for review, according to different situation respectively made following decided: (a) does have should by administrative punishment of violations of, according to plot weight and the specific situation, made administrative punishment decided; (ii) violations minor, law can not administrative punishment of, not administrative punishment; (three) illegal facts cannot established of, shall not give administrative punishment; (four) violations has constitute crime of, transferred judicial organ.
    For complicated or serious violations of administrative punishment, head of the Administrative Department for cultural relics should be decided collectively. Administrative Department for cultural relics of the 31st article intends to make a decision of administrative penalty shall be issued by the head of this administrative penalty notice.
    Administrative penalty notice shall set forth the proposed administrative punishment decision of facts, reasons and basis and shall inform the Parties shall have the right to be heard, the right to defence and other rights. Article 32nd requirement statements, representations of the parties, shall, after receipt of the notice of administrative penalty in 3rd, submitted to the Administrative Department for cultural relics statement, defence and the facts and reasons. Parties during which failure to exercise the right to be heard, the right to defence, as a waiver of rights.
    Waiver by the parties, written decision of administrative penalty issued by the head of the Administrative Department for cultural relics, and served on the party.
    Undertaker 33rd case should fully hear the statements of the parties, defence, review the facts, the reasons put forward by the parties, and to review reports to the head of the Administrative Department for cultural relics.
    Undertaker shall not be a party to plead the case aggravated the penalties for parties. Article 34th head of the Administrative Department for cultural relics under the review of the final decision and issue a written decision of administrative penalty.
    Administrative punishment decided book should contains Ming following matters: (a) party of name or name, and address; (ii) violation legal, and regulations or regulations of facts and evidence; (three) administrative punishment of type and according to; (four) administrative punishment of perform way and term; (five) refuses to administrative punishment decided, application administrative reconsideration or filed administrative litigation of way and term; (six) made administrative punishment decided of heritage administrative sector name and made decided of date.
    Written decision of administrative penalty shall bear the administrative punishment decision of the seal of the Administrative Department for cultural relics.
    Section III hearing procedures article 35th Administrative Department for cultural relics shall be ordered to suspend production, revocation of permit or license, the larger the amount of fines and other administrative penalties before a decision, it shall inform the parties have the right to request hearings; the parties to request a hearing, the administrative departments shall organize the hearing.
    Definition of the large amount of fine local administrative Department for cultural relics, according to local national people's Congress, or the specific provisions of people's Governments at the provincial level.
    Article 36th cultural relics Administration meets the conditions for hearing cases, should be made in the administrative punishment decision, the notice of hearing served on the parties.
    37th interested party hearing request after receipt of the notice of hearing in the 3rd, the Administrative Department for cultural relics should be within 3rd party hearing request date to determine the hearing officer composition, time, place and manner of the hearing, and notify the parties before the hearing on 7th.
    Article 38th involve State secrets, business secrets or personal privacy, the hearing shall be held in public.
    39th head of the Administrative Department for cultural relics should be designated non-employees in the case of the Department as the hearing officer and clerk. Think hearing the parties and the court clerk and have a stake in the present case, the right to apply for withdrawal.
    Withdrawal of the hearing and the court clerk decided by the head of the Administrative Department for cultural relics. 40th party after receipt of the notice of hearing, shall attend the hearing, may also appoint 1-2 man agency hearings.
    Commissions the Agency hearing, shall submit to the hearing by a power of attorney signed or sealed by the parties.
    Parties without justifiable reasons not to attend the hearing, deemed to have waived the hearing request.
    41st held hearings, cases the contractor shall present a party against the facts, evidence and administrative penalties recommended; the parties may plead and cross-examination. 42nd hearing shall make a record of hearing.
    Hearing record should contains Ming following matters: (a) case; (ii) hearing participate in people name or name, and address; (three) hearing host, and clerk name; (four) held hearing of time, and locations; (five) case hosted people proposed of facts, and evidence and administrative punishment recommends; (six) party statement, and defence and quality card of content; (seven) hearing participate in people signature or sealed. After the end of the hearing, hearing should the parties case and the undertaker inerrant and sign or seal.
    The party refuses to sign or seal shall be indicated in the record of hearing.
    Article 43rd after the end of the hearing, the Administrative Department for cultural relics in accordance with the provisions of the present article 30th, a decision.
    The sixth chapter of delivery and implementation of the 44th article written decision of administrative penalty shall spot the party; without the presence of the parties, the administrative departments shall, in accordance with the relevant provisions of the civil procedure law served in the 7th.
    The 45th after service of the decision on administrative penalty, the Parties shall, within the prescribed period the decision of punishment shall be fulfilled.
    Party of genuine financial hardship, delay or in installments to pay the fine, apply in writing by the parties, and reported to the head of the Administrative Department for cultural relics for approval. Article 46th fines and confiscation of illegal gains to decide the Administrative Department for cultural relics and collection of institutional separation of the confiscated money.
    Except as provided by the collection of fines, administrative law enforcement personnel shall not be collected and confiscated money on their own.
    47th administrative punishment on the spot, any of the following circumstances, the administrative enforcement officers to collect fines on the spot: (a) shall be subject to penalty of 20 Yuan, (ii) is not collected on the spot are difficult to implement.
    48th in remote, water and transportation areas, the administrative penalty decisions from law enforcement personnel in accordance with these provisions, there is difficulty in Parties to the designated bank to pay the fine, put forward by the parties, the administrative enforcement officers to collect fines on the spot.
    49th article of administrative law-enforcement officers to collect fines on the spot shall be issued by the provincial financial Department issued to a client ticket.
    Administrative law-enforcement officials collect fines on the spot, shall from the date of collecting fines submitted to the Administrative Department for cultural relics in the 2nd; cultural relics administration 2nd fines paid within the specified bank.
    50th party fails to carry out administrative punishment decision, the administrative departments shall apply to a people's Court for compulsory execution.
    51st decided to carry out administrative punishment or execution, cases the contractor shall fill in the final report submitted to approval of the head of the Administrative Department for cultural relics.
    Seventh chapter supplementary articles article 52nd after completion of administrative punishment decision, the Administrative Department for cultural relics should be filing case materials in a timely manner.
                                                                      53rd the regulations as of the date of promulgation.

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