Tongwang Sharing | How to Distinguish the Manifestations of 'Order' Specific Administrative Actions
Time:
2022-05-31
Author:
He Caibin
Source:
Guangxi Tongwang Law Firm
Visits:
464
I. Introduction
We often broadly categorize specific administrative actions into administrative collection, administrative licenses, administrative orders, administrative confirmation, administrative supervision and inspection, administrative penalties, administrative adjudication, administrative enforcement, and so on. Different laws often apply when different administrative actions are taken. The "Administrative Penalty Law" applies when administrative penalty actions are taken, and the "Administrative Enforcement Law" should apply when administrative compulsory measures are taken. "Order"-type specific administrative actions are common in daily administrative management, but grasping their nature has always been a challenge. For example, Article 64 of China's "Urban and Rural Planning Law" stipulates that if a construction project planning permit has not been obtained or construction is not carried out in accordance with the provisions of the construction project planning permit, the urban and rural planning authorities of the local people's government at or above the county level shall order the construction to stop; if corrective measures can be taken to eliminate the impact on the implementation of the plan, a deadline shall be set for correction, and a fine of not less than 5% but not more than 10% of the construction project cost shall be imposed; if corrective measures cannot be taken to eliminate the impact, a deadline shall be set for demolition, and if demolition is not possible, the facilities or illegal income shall be confiscated, and a fine of not more than 10% of the construction project cost may also be imposed. In reality, there is great controversy over what form of specific administrative action the "order to demolish within a time limit" mentioned in this legal provision should belong to, and even the judicial organs cannot achieve unified adjudication. This article analyzes this type of specific administrative action from a legal perspective, starting from the definition and constituent elements of administrative penalties and administrative compulsory measures, combined with the relevant content of laws such as the "Administrative Penalty Law" and the "Administrative Enforcement Law", aiming to clarify the thinking.
II. Three Different Views on What Kind of Administrative Act an Order-Type Specific Administrative Act Should Belong To
View 1: This type of specific administrative action should belong to administrative punishment, and the relevant provisions of the "Administrative Punishment Law" should apply to the making of this type of specific administrative action.
(I) "Order"-type specific administrative actions meet the constituent elements of administrative punishment. Article 2 of the "Administrative Punishment Law" clearly stipulates that administrative punishment is an act by which administrative organs impose sanctions on citizens, legal persons, or other organizations that violate the order of administrative management by reducing rights and interests or increasing obligations. For example, "ordering demolition within a time limit" has the attribute of "sanction", and imposes restrictions and orders on the administrative counterpart in terms of time, and has burden and punitiveness, and should belong to administrative punishment behavior.
(II) The Higher People's Court of Qinghai Province has a specific case of identifying "ordering demolition within a time limit" as "other administrative penalties stipulated by laws and administrative regulations". Case: Administrative Ruling No. 147 of Qingxing Shen (2019) Excerpt of some content:
The court held that... After investigation, according to Articles 40, 64, and 68 of the "Urban and Rural Planning Law of the People's Republic of China", the applicant and the County Housing and Construction Bureau, as the county-level urban and rural planning authorities, have the statutory power to make decisions on ordering the demolition of illegal buildings within a time limit in the jurisdiction. The re-applicant, as a family member, and his family jointly built a house on the south side of the Happy Farmhouse in Chuan Yuan Da Tong Dao. The house is located within the urban planning area and has not gone through the building approval procedures. The Minhe County Housing and Construction Bureau, after investigation and inspection, determined that the house involved in the case was an illegal building, and then filed a case for investigation. ... The applicant proposed that the administrative penalty decision to order the demolition of the house within a time limit made by the applicant does not belong to the types of administrative penalties stipulated by law. After investigation, Article 8 of the "Administrative Penalty Law of the People's Republic of China" stipulates the types of administrative penalties, and the above-mentioned provision No. 7 clearly states that the types of administrative penalties also include "other administrative penalties stipulated by laws and administrative regulations". ... Before making the "Decision on Ordering the Demolition of Illegal Buildings within a Time Limit", the Minhe County Housing and Construction Bureau legally fulfilled the relevant procedural provisions on administrative penalties in laws and regulations such as the "Administrative Penalty Law of the People's Republic of China" and the "Urban and Rural Planning Law of the People's Republic of China", and its administrative penalty procedure is not inappropriate.
View 2: "Order"-type specific administrative actions do not have a punitive nature and are administrative orders.
The main reason is that "order"-type specific administrative actions are essentially prohibitions in administrative orders, that is, the administrative organ legally requires the administrative counterpart not to express certain behaviors. Its ultimate goal is to stop illegal acts and urge them to return to a legal state, and it is not punitive.
Reference case: Excerpt of some content from Administrative Judgment No. 42 of Wan 08 Xingchu (2017):
The court held that the focus of the dispute in this case is: 1. Whether the defendant legally fulfilled the statutory duties of administrative reconsideration. 2. Whether the order to stop illegal acts made by the Tongcheng City Urban Management Bureau belongs to the scope of administrative reconsideration. The order to stop illegal acts is essentially a prohibition in administrative orders, that is, the administrative organ legally requires the administrative counterpart not to express certain behaviors. Once an order to stop illegal acts is made, it sets an obligation for the administrative counterpart. Regardless of whether the administrative order is legal, if the administrative counterpart does not execute the order of the administrative organ, it will be subject to administrative penalties or administrative compulsory enforcement. Therefore, the order to stop illegal acts is an independent administrative act in the process of administrative law enforcement. If the legal act implemented by the administrative counterpart is wrongly implemented by the administrative subject with an order to stop, it will lead to the infringement of the legitimate rights and interests of the counterpart. ...
View 3: It belongs to administrative compulsory measures and is subject to the "Administrative Enforcement Law".
The main basis is the "Reply to the Request of the Legislative Affairs Office of the People's Government of Shaanxi Province on Whether 'Ordering Demolition within a Time Limit' is an Administrative Penalty Act" issued by the Legislative Affairs Office of the State Council on December 19, 2012. The specific content of the reply clarifies that ordering correction or ordering correction of illegal acts within a time limit are different administrative acts. The "ordering demolition within a time limit" stipulated in Article 64 and the "ordering demolition within a time limit" stipulated in Article 68 of the "Urban and Rural Planning Law of the People's Republic of China" should not be understood as administrative penalty acts. The notice to order demolition within a time limit is a kind of administrative compulsory measure.
III. Lawyer's Opinion
In the current laws, regulations and rules, there are a large number of expressions of "order"-type specific administrative actions. For example: order to stop illegal acts, order to stop infringement, order to correct, order to stop using, order to stop selling, order to correct within a time limit, order to stop publishing advertisements, etc. The author believes that accurately distinguishing "order"-type specific administrative actions needs to follow the following two points as standards:
(I) Adhere to the principle of legality of administrative punishment and accurately grasp the connotation of administrative punishment
Articles 3 and 4 of China's "Administrative Punishment Law" clarify the scope of application of the Administrative Punishment Law and the principle of legality of administrative punishment. At the same time, the principle of legality of administrative punishment is a concentrated embodiment of the rule of law government in the field of administrative punishment, and it is also the inherent requirement of China's comprehensive promotion of the rule of law and administration according to law. Whether the "order"-type specific administrative action belongs to administrative punishment, Article 9, Paragraph 4 of the "Administrative Punishment Law" clarifies that the two "order"-type specific administrative actions of "order to suspend production and business" and "order to close down" are types of administrative punishment. It can be seen that the specific administrative actions of the administrative organ's "order" category have been used as legal types of administrative punishment.
Article 2 of the "Administrative Penalty Law" stipulates that administrative penalty refers to the act of administrative organs imposing sanctions on citizens, legal persons, or other organizations that violate the administrative management order by reducing rights or increasing obligations in accordance with the law. It can be seen that the constituent elements of administrative punishment can be roughly divided into: (1) The subject of administrative punishment is an administrative organ; (2) The object of administrative punishment is a citizen, legal person or other organization that violates the administrative management order; (3) The specific manifestation of administrative punishment is "reducing rights or increasing obligations"; (4) The "punishment" nature of the sanction serves as the essential standard for administrative punishment. Therefore, sanction is the most core feature of administrative punishment. Whether the specific administrative act of "ordering" has the attribute of sanction is the core of our accurate grasp of whether this type of specific administrative act belongs to other administrative punishments stipulated by laws and administrative regulations, and it is also the key to whether the specific administrative act of "ordering" belongs to administrative punishment.
(II) Correctly understand the purpose of specific administrative actions of the "order" type.
For administrative penalties, the purpose is obvious, that is, to punish and sanction violators, which will have legal consequences that cause the administrative counterpart to suffer losses in their rights and impose additional responsibilities and obligations, and have punitive and conclusive effects. Different from administrative penalties, the purpose of administrative compulsory measures is to stop illegal acts, prevent damage to evidence, avoid the occurrence of harm, control the expansion of danger, and will not impose additional responsibilities and obligations on the illegal actor. Article 2, Paragraph 2 of my country's "Administrative Compulsory Law" also clearly stipulates that administrative compulsory measures are acts of temporarily restricting citizens' personal freedom or temporarily controlling the property of citizens, legal persons or other organizations in accordance with the law. Taking ordering the demolition of illegal buildings within a time limit as an example, its purpose is to make a mandatory decision requiring the perpetrator to stop the illegal act, eliminate adverse consequences or restore the original state in order to stop the continuous or ongoing illegal act. Therefore, it has the characteristics of the stage and control of administrative compulsory measures. The effect to be achieved is not to punish or sanction the violator, but to correct his illegal behavior and eliminate the illegal state. It does not cause damage to the legitimate rights and interests of the administrative counterpart, nor does it impose additional responsibilities and obligations on the violator.
IV. Conclusion
Recognizing the manifestation of specific administrative actions of the "order" type can help administrative organs accurately provide the legal, regulatory, and regulatory bases that should be applied to the administrative action when they make such specific administrative actions in accordance with the law, promote administration in accordance with the law, so as to achieve the effect of legal procedures and correct application of the law. For administrative counterparts, correctly grasping the legal nature of specific administrative actions of the "order" type and recognizing the possible legal consequences of such specific administrative actions for them can also increase the legal awareness of administrative counterparts from the perspective of popularizing the law.