Administrative Discretion In Punishment Chengdu Standardize Implementation Measures

Original Language Title: 成都市规范行政处罚自由裁量权实施办法

Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/dfzfgz/201009/20100900264105.shtml

Administrative discretion in punishment Chengdu standardize implementation measures

    (June 10, 2010, Chengdu municipal people's Government, the 69th General session on June 24, 2010, Chengdu municipal people's Government, the 169th announced as of October 1, 2010) Chapter I General provisions

    The first (objective basis)

    In order to regulate and supervise the exercise of the right of free judgment for administrative punishment, according to law, reasonable administrative to ensure correct implementation of laws, rules and regulations, protect the legitimate rights and interests of citizens, legal persons and other organizations, in accordance with the People's Republic of China on administrative punishment law and other laws and regulations, Chengdu practice, these measures are formulated.

    Article II (umbrella term)

    Discretion of administrative penalty mentioned in these measures refers to has the right to administrative penalties administrative organs, organizations authorized or entrusted with the implementation of administrative punishments (hereinafter referred to as the implementation of administrative punishments), in the context of legal, illegal and given administrative punishment, what type of administrative punishment of independent judgment and what type of administrative penalties administrative power.

    Article III (scope of application)

    , At all levels of the implementation of administrative punishments, this organ to exercise the right of free judgment for administrative punishment, should comply with these measures.

    Fourth (supervisory authority)

    The municipal and district (City) County government legal departments are responsible for the area within the discretion of administrative penalty norms and supervision.

    The implementation of administrative punishments on the bodies in charge of the organs of the body in charge of Legal Affairs administrative penalty discretion of regulating and supervising.

    Fifth (basic principles)

    Exercise of the right of free judgment for administrative punishment, shall follow the lawful, fair and open, the punishment fit, the same principle of equal punishment.

    Exercise of the right of free judgment for administrative punishment, should persist in combining punishment with education and principles of education, education of citizens, legal persons and other organizations consciously abide by.

    Sixth (discretionary)

    Exercise of the right of free judgment for administrative punishment, should take the social harm illegal facts, characters, plot, and other factors, consider the following:

    (A) the offence to a person's age and mental condition;

    (B) the illegal level of subjective fault;

    (C) whether there are two or more such violations committed within two years;

    (D) violations of specific methods or tools;

    (E) the number of illegal income or the illegal property;

    (Vi) illegal damage and social impact on the specific objects;

    (G) violations of the measures taken and the results;

    (VIII) other factors prescribed by laws, rules and regulations.

    Seventh (administrative guidance)

    The administrative organ shall release information, reminders, advice, guidance and administrative guidance means, prevent the occurrence of violations.

    From the executive bodies to take the carrot, fraud, coercion, violence or other improper means, citizens, legal persons or other organizations of violating the law and impose administrative penalties.

    Chapter II discretionary basis

    Eighth (discretionary basis)

    Municipal implementation authorities shall, in accordance with the law on administrative punishments, regulations, rules and regulations of the administrative punishment, category, range, combined with the fact of the violation, the nature, circumstances, social factors such as degree, divide the discretionary order, developed the system of administrative penalty discretion standard.

    Development of administrative penalty discretion standard, can refer to the related administrative penalties established by the higher authorities discretionary basis.

    New laws, regulations and rules relating to administrative discretion in punishment, the implementation of administrative punishments shall be promulgated in the new laws, rules and regulations published in the 30th determine discretionary basis corresponding to the offence. Free judgment for administrative punishment benchmarks shall be submitted to the Legal Department review, in accordance with the regulations to the public.

    To render its decision in reviewing discretionary basis, legal departments shall be in accordance with the means required to Conference criteria of legality and rationality review.

    Nineth (judgment order)

    Discretion standard prescribes offences and penalties should be based on the order and divided into three or more discretion, order free judgment for administrative punishment of every type and scope of provisions.

    Set a variety of administrative penalties for the same violations committed, punishment applies to warning or a small amount of fine, heavy punishment applies to the order to suspend, revoke a permit or licence, the larger the amount of fines or confiscation of large amounts of illegal proceeds and illegal property.

    Tenth (fine)

    Laws, rules, and regulations set a certain level of fine, discretionary basis should be subject to divide the range into a lesser punishment, punishment, heavy punishment in General.

    The amount of the fine in accordance with the following criteria:

    (A) fines for multiples of a certain amount, should be at the highest multiples multiples and the lowest was divided between three or more order, punishment by the Middle order punishment, punishment should be less than the Middle order, a heavier punishment shall not be less than the Middle order;

    (B) penalty for a certain amount of shall be divided between the maximum and minimum three or more order (maximum and minimum margin is four times more than should be divided in double amount penalty order), punishment by the Middle order punishment, punishment should be less than the Middle order, a heavier punishment shall not be less than the Middle order;

    (C) only stipulates that the amount of the maximum fine amount does not provide a minimum penalty, punishment according to 40% to 60% to determine the maximum penalty, punishment 20% the following to determine the highest penalty. District (municipal) and County fines given to the laws, rules and regulations, according to the region's economic, social and cultural circumstances, control the decisions of the upper limit of the fines.

    But relates to harm national security, public safety, human health, life and property safety, environmental protection, except for offences.

    11th (no punishment)

    Any of the following circumstances, no administrative penalty:

    (A) violations of persons under 14 years of age;

    (B) the mentally ill people are unable to recognize or control his actions when illegal acts;

    (C) the offence minor and correct, no harmful consequences;

    (D) no administrative penalty provided by law, regulations, regulations of other cases.

    Unless otherwise prescribed by law, illegal act is not discovered within two years, are no longer given administrative punishment.

    12th (lighter or mitigated punishment)

    Any of the following circumstances, it should be lighter or mitigated administrative penalty in accordance with law:

    (A) the offence who is 14 years younger than 18 years of age;

    (B) unlawful property or the illegal income is less;

    (C) the initiative to stop illegal acts;

    (D) the initiative to eliminate or mitigate the consequences of the violations committed against;

    (E) common violations who plays a secondary or auxiliary role;

    (Vi) coercion by others engaged in illegal acts;

    (G) collaboration with meritorious executive authorities investigate violations committed;

    (VIII) other circumstances as stipulated by laws, rules and regulations.

    Has no record of similar offences and offences without serious consequences, should be legal based on the type of penalty or punishment mitigated punishment.

    13th (heavy punishment)

    Any of the following circumstances, it shall be given a heavier punishment:

    (A) play a major role in the common violations;

    (B) two years, accumulated more than two similar or have received administrative punishments for offences;

    (C) after a written order to stop or correct illegal by the administrative authority, continued implementation of illegal acts;

    (D) serious prejudice to investigate violations committed by law enforcement officials;

    (E) coercion, trickery or abetting illegal plot;

    (Vi) the informant, witness retaliation;

    (VII) offences against national security, public safety, human health and safety, protection of life and property, with great harm to the society;

    (H) the unlawful means and serious consequences;

    (IX) other circumstances as stipulated by laws, rules and regulations.

    14th (punishment) Lighter or heavier punishment should be in kind or range within the statutory punishment punishment.

    Mitigation of punishment should be in kind or extent of statutory penalties the following penalties.

    Simultaneously with two or more leniently or mitigating circumstances, and does not have a heavier in cases where the minimum penalty amount or mitigated punishment shall be applied.

    Chapter three discretionary implementation

    15th (correcting illegal) The implementation of administrative punishments administrative punishments, according to laws, regulations, and rules of order the party to immediately correct or rectify violations.

    Except otherwise prescribed by laws, rules and regulations, within a time limit period not later than 15th.

    16th (separation of functions) Establishing general procedures administrative punishment case investigations, audits, decided to "three-separation" works.

    Investigation and evidence collection, and put forward opinions by law enforcement personnel, in charge of legal affairs institutions legitimate, reasonable review, reported to the heads or brainstorming, and made the decision under review.

    17th (investigation)

    Law enforcement officers following the end of investigations, should be processed in a timely manner, and the application of administrative penalty discretion order clarification.

    18th (legal review) General procedure of administrative punishment cases, the implementation of administrative punishments bodies responsible for Legal Affairs of the agencies should be on administrative penalty legality and rationality to audit and the audit opinion. After approval, materials related to the case and review comments should be reported to the Bureau review, or brainstorm and make a decision of administrative penalty.

    Without examination, shall not be submitted to the review or discussion.

    19th (group discussion)

    General procedure of administrative punishment cases apply, any of the following circumstances, must pass through the heads of collective discussion decision:

    (A) intends to impose larger fines, the parties concerned may apply for a hearing and did not apply;

    (B) the proposed order to suspend, revoke a permit or licence;

    (C) the proposed exemption from punishment according to law, a mitigated punishment or be punished;

    (D) the implementation of hearing;

    (E) the implementation of administrative punishments considered other cases to be decided collectively.
Group discussions should be recorded in detail.

    20th (statements, representations and hearings)

    Imposition of administrative penalty and shall guarantee the party the right to be heard and right to be heard; to meet the statutory conditions for the hearing, the Parties apply, it shall organize the hearing.

    21st (sanctions review) Before making a decision of administrative penalty, it shall inform the party intends to make a decision of administrative penalty and facts, grounds, and basis.

    For the parties ' statements or representations of fact, reason and evidence, should be reviewed.

    22nd (discretionary description)

    Make a written decision of administrative penalty, in addition to set forth the requirements of the laws, regulations and rules issues, should also be on whether to adopt the party's views to be heard, as well as reduction, lighter or heavier punishment the rationale and justification for clarification.

    23rd (deadlines)

    Except otherwise prescribed by laws, regulations, rules, administrative punishment procedures, it shall make a decision of administrative penalty within 60 days from the date of filing, special circumstances approved by the Bureau may be appropriately extended, extend the deadline not later than 30th.

    Before the implementation of administrative punishments administrative punishment decision, legally required notice, hearing, testing, inspection, and quarantine, identification of, not counting the time required within the period specified in the preceding paragraph.

    24th (provisions)

    Implementation of administrative punishment of law enforcement personnel and one of the following interest by the parties, it shall be avoided:

    (A) close relatives to be in connection with the parties or the parties;

    (B) for the victims of violations, the beneficiary or their close relatives;

    (C) other relationships with the parties involved, could affect the impartial handling of the case.

    25th (enforcement register)

    The implementation of administrative punishments for law enforcement personnel of the law enforcement organs should time and place, the inspected object, law enforcement, illegal facts and law enforcement processes according to routine enforcement, law enforcement results registration and production files for archiving for future reference.

    26th (archives)

    Summary proceedings, shall, within two working days from the date of punishment written decision of administrative penalty archives. General procedures apply shall, within five working days from the closing date of filing.

    List of administrative punishment case file material should include the volume, daily law enforcement registration form, filing form, notice of filing, investigation notes and related evidence, investigation and treatment advice, administrative penalty notice, brainstorm records, administrative punishment decision letter, delivery receipts, closed form and other materials.

    For hearing procedures, files should also include material of the hearing.

    27th (records and statistics)

    Implementing of administrative penalty authority shall, in the first month of each quarter on the 10th quarter of administrative penalty levels the Government legal departments and authorities at a higher level for the record statistics.

    Order to suspend, revoke a permit or licence, the larger the amount of fines or confiscation of large amounts of illegal proceeds, illegal property major administrative punishment decision, shall from the date of a decision within the 15th submit grade government legal departments and authorities at a higher level for the record.

    28th (case review)

    Implementation authorities shall regularly carry out administrative penalties administrative penalty cases reviewed, on the specific facts of the case clearly, the assessment of evidence, whether the legality of the program, Word specifications, applicable laws and regulations are correct, whether the discretion appropriate, undertake a comprehensive review.

    29th (administrative penalty Gazette)

    The district (City) County people's Governments, the implementation of administrative punishments should be the region, administrative penalties imposed by this sector of the data, summarizing and analysis of concrete conditions, announced to the public on a quarterly basis.

    30th (case guiding)

    The implementation of administrative punishments should be for a common offence, combined with the actual situation of the sector, establish case base as a reference standard of administrative punishment, law applicable to ensure that similar cases are basically the same.

    31st (electronic administrative penalties)

    Establish electronic management system of administrative punishment, conduct real-time supervision and inspection on administrative penalty.

    Fourth chapter, supervision and assessment

    32nd (relief protection) Fully guaranteed the right of citizens, legal persons or other organizations.

    Citizens, legal persons or other organizations, administrative punishment shall have the right, the right to be heard; not satisfied with the administrative punishment, entitled to apply for administrative reconsideration or bring an administrative suit; administrative penalties by administrative authority in contravention of the damage has the right to demand compensation according to law.

    Citizens, legal persons or other organizations to the implementation of administrative punishments for petition, complaint or make recommendations, relevant departments shall, in accordance with the relevant regulations.

    33rd (self-correction)

    Organ found administrative penalties administrative penalty discretion improperly exercised, should be actively corrected.

    34th (supervision)

    The municipal and district (City) County government legal departments on the implementation of administrative punishments organs supervise the exercise of the right of free judgment for administrative punishment includes:

    (A) through the administrative review review of legality and rationality of administrative penalty;

    (B) carry out administrative punishment case comments looks up;

    (C) the implementation of daily supervision and inspection in administrative discretion in punishment or special inspection;

    (D) receive complaints from the masses to the administrative punishment cases, reports;

    (E) record review of the major administrative punishment decision implementation.

    Contents include:

    (A) whether there were administrative penalty discretion standard to the public;

    (B) whether these regulations establish and implement, including administrative penalties enforcement registry system, legal system, collective discussion system, hearings, and description of free systems, open systems, filing systems and other administrative discretion in punishment systems;

    (C) whether comprehensive illegal facts and the nature and seriousness of hazard levels and social factors such as the exercise of discretion in administrative penalties;

    (D) in accordance with the provisions of law and rules and regulations made from heavier or lighter, reduced or no administrative penalty decision, and described in a written decision of administrative penalty;

    (E) whether to listen to the statements of the parties and the defence;

    (Vi) compliance with statutory procedures;

    (VII) other content that requires supervision according to law.

    For failure to comply with these measures, the municipal and district (City) County Department of Legal Affairs shall make a rectification opinions, be corrected by the implementation of administrative punishments.

    35th (evaluation)

    This sector the implementation of administrative punishments should be a year the exercise of administrative discretion in punishment of organized a self-assessment.

    The municipal and district (municipal) and County discretion in regulating administrative punishments should be integrated into the annual administration of the implementation assessment.

    Article 36th (accountability)

    These measures are not in accordance with the exercise of the right of free judgment for administrative punishment, Sichuan province, in accordance with the regulations on administrative law enforcement supervision article 30th of provisions and administrative fault of the Chengdu municipal civil servants of administrative organs conduct an administrative sanction provisions (city to 156th) for processing.

    The fifth chapter by-laws

    37th (explain)

    Problems in the application of these measures by the Chengdu municipal people's Government Affairs Office is responsible for the interpretation.

    38th (execution date) These measures shall take effect on October 1, 2010.