Viewpoint | Talking about the Enforcement of the People's Court on the Penalty
Published:
2023-12-28
In judicial practice, different administrative organs, according to the same law, have made different provisions on whether it is necessary to make a separate decision to impose a fine and according to what procedure to make a decision to impose a fine. Therefore, the author thinks that it is necessary to sort out and analyze the legal application of the additional fine, so as to have a little reference to the non-litigation administrative execution.
Content Summary
In the administrative penalty decision made by the administrative organ in accordance with the law with the obligation to pay money, there will be the following notice: "If the fine is not paid at the due date, a fine of 3% of the daily fine will be imposed". In judicial practice, different administrative organs, according to the same law, have made different provisions on whether it is necessary to make a separate decision to impose a fine and according to what procedure to make a decision to impose a fine. Therefore, the author thinks that it is necessary to sort out and analyze the legal application of the additional fine, so as to have a little reference to the non-litigation administrative execution.
Keywords: administrative penalty administrative compulsion plus a fine
Almost every driver has received the "Public Security Traffic Management Summary Procedure Punishment Decision", which, in addition to stating the driver's illegal behavior, punishment basis and punishment measures, will also inform "if the fine is not paid within the time limit, a fine of 3% of the fine will be imposed daily". If the driver fails to pay the fine within the time limit, the administrative organ needs to apply to the court for compulsory enforcement according to law, so different courts will have different ways to deal with how to enforce the additional fine. The following is to sort out and analyze the nature of the additional fines and the implementation procedures.
Nature of 1. additional fines
(I) the origin of "additional fines"
Article 51 of the "Administrative Punishment Law" implemented in 1996 stipulates that "If a party fails to perform the administrative penalty decision within the time limit, the administrative agency that made the administrative penalty decision may take the following measures: (1) If the fine is not paid when the fine is due, the daily The 3% of the amount of the fine shall be imposed an additional fine;..." This is the first time that our country has proposed "additional fine" in the law ". Article 12 of the "Administrative Enforcement Law" implemented in 2012 stipulates that "the methods of administrative enforcement: (1) additional fines or late fees;..." Article 45 stipulates that "if the administrative organ makes an administrative decision on the obligation to pay money according to law, if the party concerned fails to perform within the time limit, the administrative organ may impose an additional fine or late fee according to law. The standards for imposing additional fines or late fees shall be notified to the parties concerned. The amount of the additional fine or late fee shall not exceed the amount of the obligation to pay money".
It can be seen from this that the additional fine is a form of enforcement adopted by the administrative organ in accordance with the law when the administrative counterpart fails to perform the administrative decision with the obligation to pay money in accordance with the law, the purpose of which is to ensure that the administrative decision of the administrative organ can be fulfilled in a timely manner.
(II) additional fines are different from administrative penalties
Although the "additional fine" first appeared in the "Administrative Punishment Law", according to the aforementioned provisions, the additional fine is a way of administrative enforcement, which is stipulated in Chapter 6 of the "Administrative Punishment Law", that is, "Administrative Punishment" In the implementation, it is not stipulated as a type of administrative penalty in the second chapter, the "Types and Setting of Administrative Penalties. Therefore, the additional fine is a kind of administrative execution penalty, which can only be taken after the administrative counterpart fails to perform the administrative penalty decision. It cannot be understood as a new administrative penalty decision based on the original administrative penalty act because of the word "fine.
2. Several Methods of Handling the Application for Administrative Enforcement by the Basic Courts of Jinan City
The (I) clearly states that the enforcement of additional fines is allowed.
For example, Jinan Lixia District People's Court (2021) Lu 0102 Line 20
The political ruling clearly states in the main text that "it is allowed to enforce the administrative penalty decision No. [2020]0101 issued by Jinan health and health Committee to impose a fine of RMB 10,000 and an additional fine of RMB 10,000". this ruling sets out the fine and the additional penalty respectively and allows the enforcement.
The (II) does not separately specify whether the enforcement of the additional fine is granted.
For example, Jinan Changqing District People's Court (2016) Lu 0113 Xingshen No. 130 Administrative Ruling Letter in the main text causes it to state in general terms that "the administrative penalty decision No. 094 (2014) made by the applicant Jinan Changqing District Urban Administration and Law Enforcement Bureau is allowed to be implemented. However, whether the" daily fine of 3% of the fine amount "recorded in the penalty decision is allowed to be implemented, it is not clearly stated.
(III) the additional fine is not allowed to be enforced, such a ruling is divided into two cases.
1. It does not belong to the case.
For example, the Jiyang District People's Court of Jinan City (2020) Lu 0125 Xingshen No. 13 Administrative Ruling held that "the Jiyang City Supervision Office Zi (2019) No. 039 Administrative Penalty Decision" made by the applicant for enforcement has clear facts. The procedure is legal and the applicable law is correct. If the person subject to execution neither reconsiders nor sues within the statutory time limit, and fails to perform his obligations after being urged, the person applying for execution applies to this court for compulsory execution, which is in line with the provisions of the law. What is examined in this case is the legality of the administrative penalty decision No. 039 (2019) of Jiyang municipal supervision department made by the applicant for execution. the additional fine belongs to the execution penalty and does not fall within the scope of the execution of the ruling in this case. In accordance with the provisions of Articles 53 and 58 of the the People's Republic of China Administrative Enforcement Law, the ruling is as follows: The application for execution of the Jiyang City Supervision Office Zi (2019) No. 039 "Administrative Penalty Decision" made by the Jiyang District Market Supervision Administration of Jinan City, the application for enforcement by the Jiyang District Market Supervision Administration of Jinan City, shall be applied by the application for enforcement by the court ". This ruling found that the additional fine was an enforcement penalty and therefore should not be applied for enforcement together with the fine.
2. A separate penalty decision shall be made.
For example, Jinan City Central District People's Court (2020) Lu 0103 Xingshen No. 45 held that "the Administrative Punishment Decision No. 26 [2019] of the (Ji City Central) City Supervision and Inspection Food Punishment Zi applied to this court for execution has now come into effect, and the decision has clear facts, legal procedures and correct basis, and should be allowed to be executed. In accordance with the provisions of Articles 53 and 57 of the the People's Republic of China Administrative Enforcement Law, the ruling is as follows: it is allowed to execute the illegal income of eight yuan and four jiao (8.4 yuan) and a fine of five thousand yuan only (5000 yuan) as determined in the Administrative Punishment Decision No. [2019]26 made by the market supervision and Administration Bureau of Jinan City, the application executor, the total amount of fines and confiscations is five thousand eight hundred and forty cents (5008.4 yuan). Regarding the penalty content of the additional fine, the applicant shall make a separate penalty decision and then apply to the court for enforcement". Although this ruling holds that the additional fine should not be applied for enforcement at the same time as the fine, it requires the administrative organ to make a separate "penalty decision" before applying for enforcement, which seems to confuse administrative punishment with administrative coercion.
3. the need for a separate decision to impose additional fines
(I) have clear legal provisions
The first paragraph of Article 45 of the "Administrative Compulsory Law" stipulates that "if an administrative agency makes an administrative decision on the obligation to pay money in accordance with the law, and the party fails to perform it within the time limit, the administrative agency may impose a fine or late fee in accordance with the law".
The decision to impose an additional fine (II) recorded in the Administrative Penalty Decision has not taken effect.
Article 155 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Procedure Law stipulates that "an administrative organ applying for the execution of its administrative act in accordance with the provisions of Article 97 of the Administrative Procedure Law shall meet the following conditions: ...... (II) administrative act has entered into force and has enforceable content......". The decision to impose an additional fine recorded in the Administrative Penalty Decision is only an administrative act to be made. The relevant procedures have not been completed. The proposed decision to impose an additional fine has not taken effect, and it is not certain when it will take effect. Therefore, it cannot become The basis for applying for enforcement.
(III) protection of the parties' right of statement and defense
Article 30 of the Administrative Coercion Law stipulates that "before an administrative organ makes a decision on enforcement, it shall urge the parties to perform their obligations in advance. The reminder shall be made in writing and shall state the following: (1) the time limit for the performance of the obligations; the (II) manner in which the obligations are to be performed; (III) monetary payments are involved, there shall be a clear amount and manner of payment; and the parties shall (IV) the right to be legally entitled to be heard". Although the administrative agency will urge the parties to perform their obligations before applying for administrative enforcement, this is only a reminder for fines, not a reminder for additional fines. Therefore, it cannot protect the parties' right to state and defend.
(IV) protection of the right to relief of the parties
The second paragraph of Article 37 of the Administrative Enforcement Law stipulates that "the decision on enforcement shall be made in writing and shall state the following matters: ...... (IV) the means and time limit for applying for administrative reconsideration or filing an administrative lawsuit......". If the administrative organ does not make a separate decision to impose a fine, the parties will not know how to apply for administrative reconsideration or file an administrative lawsuit.
4. procedure for applying to the court for enforcement of a fine
(I) written reminder
According to the provisions of Article 35 of the Administrative Enforcement Law, before making an administrative enforcement decision, the administrative agency shall urge the parties to perform their obligations in writing, and inform the parties of the time limit and method of performing their obligations, as well as the parties' right to state and defend in accordance with the law.
(II) Hearing
According to the provisions of Article 36 of the administrative compulsory law, the administrative organ shall fully listen to the opinions of the parties concerned. If the facts, reasons or evidence put forward by the parties are established, the administrative organ shall adopt them.
(III) make compulsory administrative decisions
According to the provisions of Article 36 of the Administrative Enforcement Law, if the party concerned still fails to perform the administrative decision within the time limit after the reminder, and there is no justifiable reason, the administrative agency may make a written enforcement decision, and specify the reasons, basis, and method of applying for enforcement., Time and other matters.
(IV) another reminder for fulfilling the decision to impose a fine
The decision to impose a fine is a new and actionable specific administrative act. Therefore, the administrative organ shall, in accordance with the provisions of the 54th Administrative Enforcement Law, urge the parties to perform their obligations before applying to the people's court for enforcement.
(V) apply to the court for enforcement
According to the provisions of Articles 46 and 53 of the Administrative Enforcement Law, an administrative organ without the power of administrative enforcement shall apply to the people's court for compulsory enforcement within six months from the date of service of the decision to impose an additional fine, and shall apply within no more than nine months.
Key words:
Administrative penalty, administrative compulsion, additional fine
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