The new revision draft of Law of the People's Republic of China on Administrative Penalty has been passed on the date of January 22nd, 2021. This revision is a major change 25 years after the enactment in 1996. Detail contents would be summarized briefly as follows:
It first clearly states the definition of administrative punishment. Administrative punishment, means the punishing act by the administrative authority which decreases the right or increases the obligation according to law while citizen, legal person or other organization violates administrative management order.
More types of statutory administrative punishments are added, such as criticism notification, suspension of licensing document, reduction of qualification level, revocation of licensing document, restriction of production and business operation, suspension of production and business operation, closure and employment restriction.
For the jurisdiction for administrative punishment, power would be decentralized to towns and sub-districts. Provincial government may decide to transfer part of the administrative punishment power under urgent need for grass-roots management from county government to compliant township government or sub-district office based on local actual situation. Periodic assessments for power transferences shall be organized. Corresponding decisions shall be publish to the public. Township government or sub-district office could implement the administrative punishment under the statutory range and process.
There are more statutory kinds of issues for lighter punishment or mitigated punishment. Whoever is deceived by others to commit an illegal act or voluntarily confesses an illegal act not yet mastered by the administrative authority shall be given a lighter or mitigated punishment. If the first violation is minor and the harmful consequence has been corrected in time, or if the party has sufficient evidence to prove that there is no subjective fault, it may not be subject to an administrative punishment, but it is still necessary to educate the party concerned.
In order to control, mitigate and eliminate the social harm caused by the outbreak of major infectious diseases and other emergencies, the administrative authority shall promptly and severely punish the violation of the emergency response measures according to law.
If a general illegal act has not been found within two years, it shall no longer be given administrative punishment. However, the period of liability for the violation is extended to five years when health and safety of citizens and financial security are involved and there does harmful consequence exist.
The administrative authority may use electronic technology monitoring equipment to collect and fix illegal facts, but it shall go through the legal and technical examination to ensure that the electronic technology monitoring equipment is compliant with the standard, reasonably set up, and the signs are obvious. The locations of the equipment setting shall also be announced to the society. Illegal facts recorded by electronic technology monitoring equipment shall be true, clear, complete and accurate, and the content that does not meet the examination requirements shall not be used as evidence of administrative punishment.
In the summary procedure of administrative punishment, an administrative punishment decision may be made on the spot for the fine of a citizen below RMB 200 Yuan and on a legal person or other organization below RMB 3000 Yuan.
Where someone has actual financial difficulty for administrative penalty and needs to postpone or pay the fine in installments, it may suspend or pay the fine in installments through the application of the party concerned and the approval of the administrative authority, and the time limit for the application for enforcement by the court shall be calculated from the end date of the suspension or payment of the fine in installments.
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Mr. Mike Chang (Partner)