(Adopted at the 120th meeting of the Standing Committee of the 4th Session of the People’s Government of Shenzhen Municipality on November 12th, 2008)
Article 1 For the purposes of further standardizing the exercise of the discretionary power in imposing administrative penalties, implementing administrative penalties in a legal and reasonable manner, and protecting the legitimate rights and interests of citizens, legal persons and other organizations, in accordance with the Law of the People’s Republic of China on Administrative Penalty and relevant provisions, and in light of the actual situations of Shenzhen, these Provisions are hereby formulated.
Article 2 The administrative penalty enforcement organs at all levels within the administrative areas of Shenzhen exercising the discretionary power in imposing administrative penalties shall comply with these Provisions unless the fixed fine is imposed according to laws, regulations and rules.
Article 3 The discretionary power in imposing administrative penalties mentioned in these Provisions refers to the authority of administrative law enforcement organs to decide whether to impose administrative penalties and what kind of penalties to be imposed according to the law, taking into account the nature, circumstances, degree of social harm, illegal facts, evidence and other factors of illegal acts, within the category and range of laws, regulations and rules when imposing administrative penalties.
The administrative penalty enforcement organs mentioned in the Provisions refer to the administrative organs, the organizations authorized by laws or regulations, and the organizations entrusted in accordance with law with the power to impose administrative penalties in Shenzhen.
Article 4 The legislative affairs institutions of the municipality and district people’s governments shall be responsible for the regulation and supervision of the discretionary acts in administrative penalties.
The administrative penalty enforcement organs shall, according to the law, accept the supervision and inspection of procuratorial organs, supervisory bodies and administrative law enforcement supervision organs on the discretionary acts of administrative penalties; before imposing the penalty on the major or difficult cases, the opinions of the Legal Advisory Office of the municipal people’s government shall be consulted in accordance with relevant provisions.
The administrative penalty enforcement organs shall designate a special institution to be responsible for the regulation and supervision of the discretionary acts of administrative penalty of its own department.
Article 5 The exercise of the discretionary power in imposing administrative penalties shall comply with the legislative purpose of laws, regulations and rules, and the law shall be applied correctly.
Article 6 In the exercise of the discretionary power in imposing administrative penalties, the principle of due process shall be followed; the legal procedure of administrative penalties shall be abided by; the law enforcement process shall be clarified.
When exercising the discretionary power in imposing administrative penalties, the administrative penalty enforcement organs shall fully listen to the opinions of the parties, and guarantee the parties’ rights to know, to participate in and of relief according to the law.
Article 7 In the exercise of the discretionary power in imposing administrative penalties, citizens, legal persons and other organizations shall be treated equally, and different treatment shall not be given due to the different identities and status of the parties. For illegal acts with the same nature, of which the circumstances, degree of social harm and other factors are basically the same or similar, the administrative penalty enforcement organs shall impose the same or similar administrative penalties.
In the exercise of the discretionary power in imposing administrative penalties, the nature, circumstances, degree of social harm and other factors of the illegal act shall be taken into consideration comprehensively on the basis of the verified facts of the illegal act, so as to make the legal liabilities of the parties equal to the degree of social harm of the illegal act.
The administrative penalty enforcement organs shall disclose the basis to exercise the discretionary power in imposing administrative penalties, and disclose the results of the administrative penalties in an appropriate form.
Article 8 The municipal administrative penalty enforcement organs shall, within the acts, types and ranges of the administrative penalty prescribed by laws, regulations and rules, in accordance with these Provisions, formulate the implementation standards of the discretion power in imposing administrative penalties of its own system.
The implementation standards of the discretion power in imposing administrative penalties within the scope of the comprehensive enforcement for urban administration shall be formulated by the relevant municipal functional departments after soliciting the opinions of the comprehensive enforcement agencies for urban administration.
Article 9 Where the newly promulgated laws, regulations and rules involve the discretionary power in imposing administrative penalties, the administrative penalty enforcement organs shall determine the implementation standards of the discretion power in imposing administrative penalties corresponding to the specific illegal acts.
Article 10 When imposing an administrative penalty, the administrative organ shall order the party to correct his illegal acts or to do so within a time limit.
If the specific time limit for correction is expressly stipulated in the laws, regulations or rules, such provisions shall prevail; and if it is not clearly stipulated in laws, regulations, or rules, the administrative organ can, according to the specific circumstances of enforcement, clarify.
Article 11 Under any of the following circumstances, no administrative penalty shall be imposed:
(1) The illegal act is minor and corrected in time without causing harmful consequences;
(2) The violator is under the age of 14;
(3) Unless otherwise provided by law, the illegal act has not been discovered within two years; and/or
(4) Other circumstances prescribed by laws, regulations and rules under which no penalty shall be imposed.
Article 12 Under any of the following circumstances, the administrative penalty enforcement organs shall impose a lesser punishment according to law:
(1) The violator voluntarily eliminated or mitigated the harmful consequence of the illegal act;
(2) The violator was coerced by others to commit the illegal act;
(3) The violator played a secondary role in a joint illegal act;
(4) The violator performed meritorious deeds when working in coordination with administrative organs to investigate violations of law;
(5) The violator is over 14 but under 18 years old; and/or
(6) Other circumstances prescribed by laws, regulations and rules under which a lesser punishment shall be imposed.
Article 13 Under any of the following circumstances, the administrative penalty enforcement organs shall impose a heavier punishment according to law:
(1) The violator played a major role in a joint illegal act;
(2) The illegal act disturbed public order, impeded public security, infringed personal rights or property rights, impeded social administration, and the aforesaid illegal act was of great social harm which did not meet the threshold for criminal punishment;
(3) The violator committed the same illegal act for three or more times within one year; and
(4) Other circumstances prescribed by laws, regulations and rules under which a heavier punishment shall be imposed.
Article 14 Where multiple penalties are prescribed to be imposed on an illegal act, the administrative penalty enforcement organs, when formulating the implementation standards of the discretionary power in imposing administrative penalties, shall abide by the following principles:
(1) Heavier punishments shall apply to administrative detention, temporary suspension or rescission of permits or licenses, order for suspension of production or business, and a relatively large amount of fine; and
(2) Lesser punishments shall apply to small amounts of fine and warning.
Article 15 If laws, regulations and rules provide that a punishment may be imposed singly or concurrently, punishment shall be singly imposed on a minor illegal act; punishment shall be singly or concurrently imposed on a general illegal act; and punishments shall be concurrently imposed on a serious illegal act.
Article 16 If there is a certain range of amount of fine set by laws, regulations and rules, within the range, according to the circumstances, it shall be divided into heavier punishment, general punishment and lesser punishment. In principle, the fine shall be fixed and quantitative.
Article 17 Unless otherwise provided by laws, regulations and rules, the amount of fine shall be determined according to the following standards:
(1) If the fine is a multiple of a certain amount, the heavier punishment shall not be lower than the intermediate multiple; the lesser punishment shall be lower than the intermediate multiple; the general punishment shall be based on the intermediate multiple;
(2) If the fine is an amount with a certain range, the heavier punishment shall not be lower than the average of the maximum and minimum amount; the lesser punishment shall be lower than the average, and the general punishment shall be based on the average; and
(3) If only the maximum amount of fine is specified and the minimum amount of fine is not specified, the lesser punishment shall generally be determined on the basis of 20% of the maximum amount of fine, and the general punishment shall be determined on the basis of 50% of the maximum amount of fine; if only the minimum amount of fine is specified and the maximum amount of fine is not specified, the heavier punishment shall generally be determined on the basis of 5 times of the minimum amount of fine, and the general punishment shall be determined on the basis of 2 times of the minimum amount of fine.
Article 18 Under any of the following circumstances, the decision shall be made after being discussed by the persons in charge of the administrative organ that imposes the penalty collectively:
(1) The circumstances are complicated;
(2) In accordance with the relevant provisions, a relatively large amount of fine or confiscation of illegal gains or properties is imposed on an individual, legal person or other organization, while the party has the right to apply for hearing and fails to do it;
(3) Suspension of production or business, or rescission of permits or licenses is imposed;
(4) According to law, no punishment or a lesser punishment may be imposed;
(5) The legislative, procuratorial, supervisory, auditing and other supervisory organs, according to law, exercise supervision; and/or
(6) Other cases which the administrative penalty enforcement organ considers necessary to be discussed and decided collectively according to the actual conditions.
The administrative penalty enforcement organs shall record the above-mentioned collective discussions and the record shall be filed and kept as archives.
Article 19 When exercising the discretion power in imposing administrative penalties, the administrative penalty enforcement organs shall specify the basis for imposing specific administrative penalties in the decision for administrative penalties.
Article 20 Administrative penalty cases shall be filed and kept as archives. If the administrative penalty applies general procedure, the administrative penalty case file shall mainly include the catalog of materials in the volume, approval forms for case docketing, the investigation record and the relevant evidence materials, the handling opinions, the administrative penalty notification, and the service acknowledgment, the decision of administrative punishments, the collective discussion record and other materials; if the administrative penalty applies a hearing procedure, the hearing materials shall also be included.
Article 21 The administrative penalty enforcement organs shall establish a complaint handling system for administrative law enforcement, and shall immediately assign law enforcement agents to investigate when finding clues of illegal acts or receiving complaints or reports of illegal acts.
Article 22 If the administrative penalty enforcement organs find that the discretion power in imposing administrative penalties is improperly exercised, it shall make correction in time.
Article 23 The legislative affairs institutions of the municipal and district people’s governments shall supervise and inspect the exercise of the discretion power in imposing administrative penalties of the administrative penalty enforcement organs in the form of complaint handling, inspection, and file review of the administrative penalty enforcement.
The government legislative affairs institutions shall make the implementation of these Provisions of the administrative penalty enforcement organs as an important part of the evaluation for the building of a government under the rule of law.
The administrative penalty enforcement organs shall designate a special agency to strengthen self-inspection in the forms prescribed in Paragraph 1 of this Article.
Article 24 Where the administrative penalty enforcement organs violate the procedures of these Provisions and the implementation standards of the discretion power in imposing administrative penalties, the legislative affairs institutions of the municipal and district people’s governments shall order to correct, if the correction order is refused, the relevant liable person shall be subject to administrative liabilities by the organ with the right to appoint and dismiss him or the supervisory body according to law, and the municipal or district people’s government shall deduct the points in the annual evaluation of administrative law enforcement and circulate a notice of criticism.
Article 25 The administrative penalty enforcement organs shall, within 6 months from the date of implementation of these Provisions, formulate the implementation standards for exercising the discretion power in imposing administrative penalties, and report them to the legislative affairs institution of the municipal government for the record; those that have been formulated can be adjusted in accordance with these Provisions and reported to the legislative affairs institution of the municipal government for the record.
Article 26 These Provisions shall enter into force on February 1, 2009.
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