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Viewpoint | Some Thoughts on the Implementation of "Procedural Law from New" and "Law Not Retroactive" in the Revision of the New Administrative Punishment Law

Published:

2021-10-28

Question raised Should an administrative organ impose an administrative penalty on July 20, 2021 on an illegal act that occurred in 2019, shall it apply the Administrative Punishment Law (revised in 2021 and implemented on July 15, 2021) or the Administrative Punishment Law (revised in 2017)? Specifically, if the administrative organ intends to make a "prior notice of administrative punishment" to the administrative counterpart, should it be based on Article 44 of the "Administrative Punishment Law" (revised in 2021 and implemented on July 15, 2021), or should it be based on Article 31 of the "Administrative Punishment Law" (revised in 2017)? The theory of "law is not retroactive" is proved. One view is that when the problem is raised, the "Advance Notice of Administrative Punishment" should be made in accordance with Article 31 of the "Administrative Punishment Law" (2017 Amendment). It is certified as follows: Article 93 of the Legislation Law (amended in 2015) stipulates that laws, administrative regulations, local regulations, autonomous regulations, separate regulations, and rules shall not be retroactive, but in order to better protect citizens, legal persons, and other organizations Except for special provisions made for rights and interests. Article 37 of the Administrative Punishment Law (2021 Revision) stipulates that the implementation of administrative punishment shall be subject to the provisions of the laws, regulations and rules at the time of the illegal act. However, when the decision on administrative penalty is made, if the laws, regulations and rules have been amended or abolished, and the new provisions impose a lighter penalty or are not considered illegal, the new provisions shall apply. Therefore, because the illegal act occurred before the implementation of the new law, and Article 37 of the new law clearly stipulates the implementation of administrative penalties, the provisions of the laws, regulations and rules at the time of the illegal act shall apply. In the absence of a distinction between substantive law and procedural law, the provisions of the law have made legal reservations, and both substantive law and procedural law are uniformly applicable to the law at the time of the occurrence of the illegal act, and the new procedural law has no retroactive effect. To sum up, when the question is raised, the "Advance Notice of Administrative Punishment" shall be made in accordance with Article 31 of the "Administrative Punishment Law" (2017 Amendment). The theory of "procedural law from the new" is proved. Another point of view is that when the problem is raised, the "Advance Notice of Administrative Punishment" should be made in accordance with Article 44 of the "Administrative Punishment Law" (2021 Revision). It is certified as follows: Article 93 of the Legislation Law (amended in 2015) stipulates that laws, administrative regulations, local regulations, autonomous regulations, separate regulations, and rules shall not be retroactive, but in order to better protect citizens, legal persons, and other organizations Except for special provisions made for rights and interests. The Supreme People's Court issued.<关于审理行政案件适用法律规范问题的座谈会纪要>The Notice [Law (2004) No. 96] stipulates that when the people's court examines the legality of a specific administrative act, the provisions of the old law shall apply to substantive issues and the provisions of the new law shall apply to procedural issues, except in the following cases: (1) laws, regulations or rules provide otherwise; (II) the application of the new law is more beneficial to the protection of the legitimate rights and interests of the administrative counterpart; (III) the substantive provisions of the new law should be applied in accordance with the nature of the specific administrative act. The reply of the Supreme people's Court on the application of Judicial interpretation No. 28 of Fa [1996] [repealed by the decision of the Supreme people's Court on abolishing some Judicial interpretations (13th batch) (issued on July 8, 2019; implemented on July 20, 2019)] stipulates that Fa [1996] No. 28 of the Supreme people's Court "provisions on how to determine the place of performance of purchase and sale contracts in the jurisdiction of economic dispute cases". It is a procedural provision on the jurisdiction of the people's court. Regardless of whether the purchase and sale contract was signed before or after the entry into force of the provision, all cases of purchase and sale contract disputes brought to the people's court after the entry into force of the provision shall apply the provision, and the provisions of Article 19 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law shall no longer apply. The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law to Outstanding Cases at the Time of Implementation of the Amended Civil Procedure Law (Fa Shi [2012] No. 23) stipulates that the amended Civil Procedure Law shall be applicable to outstanding cases on January 1, 2013, unless otherwise provided in these Provisions. In the cases specified in the preceding paragraph, the procedural matters that have been completed before January 1, 2013 in accordance with the provisions of the Civil Procedure Law and relevant judicial interpretations before the amendment shall still be valid. Therefore, although the "procedural from the new law" is not clearly stated in the relevant laws, the "from the old and beneficial" established in Article 93 of the Legislative Law and the principle of procedural law from the new, because the revised procedural law is bound to be more conducive to protecting the rights and interests of citizens, legal persons and other organizations. As the most generally applicable procedural law-"Civil Procedure Law" before and after the amendment of the application of the problem, the Supreme People's Court has also given a clear answer to the new procedural law through judicial interpretation. Moreover, as early as 1998 and 2003, the answers given by the Supreme People's Court in the procedural provisions of case jurisdiction and the minutes of applicable laws in administrative cases are consistent with the aforementioned content. From the analysis of the text description stipulated by the law, Article 43 of the Administrative Punishment Law (revised in 2021) stipulates that "before making an administrative punishment decision, the administrative organ shall inform the party concerned of the contents, facts, reasons and basis of the administrative punishment to be made, and inform the party concerned of the rights of statement, defense and hearing according to law", which is more than Article 37 of the Administrative Punishment Law (revised in 2017) stipulates that "administrative punishment shall be imposed, the provisions of the laws, regulations and rules at the time of the violation shall apply. However, when the administrative penalty decision is made, the laws, regulations, and rules have been amended or abolished, and the new regulations are relatively light or not considered illegal. The application of the new regulations" adds and deletes the content, highlighting the "rights enjoyed by the parties in accordance with the law." The rights of statement, defense, and request for a hearing "further demonstrate the profitability of the procedure. To sum up, when the problem is raised, the "Advance Notice of Administrative Punishment" shall be made in accordance with Article 44 of the "Administrative Punishment Law" (revised in 2021 and implemented on July 15, 2021). The author is inclined to the second proof point of view, the reason is that the author basically believes that procedural law in principle only provides legal relief and the realization of rights (or power) methods and ways, in the case of the question, retroactive does not affect the trust interests of the subject of illegal acts. Coincidentally, the author inquired about the "Administrative Penalty Decision (State Municipal Supervision Penalty [2021] No. 74)" made by the State Administration for Market Regulation on October 8, 2021. The facts involved in the case occurred on or before April 2021, but The General Administration applied the new "Administrative Penalty Law" (revised in 2021). </关于审理行政案件适用法律规范问题的座谈会纪要>

Question raised

Should an administrative organ impose an administrative penalty on July 20, 2021 on an illegal act that occurred in 2019, shall it apply the Administrative Punishment Law (revised in 2021 and implemented on July 15, 2021) or the Administrative Punishment Law (revised in 2017)?

Specifically, if the administrative organ intends to make a "prior notice of administrative punishment" to the administrative counterpart, should it be based on Article 44 of the "Administrative Punishment Law" (revised in 2021 and implemented on July 15, 2021), or should it be based on Article 31 of the "Administrative Punishment Law" (revised in 2017)?

The theory of "law is not retroactive" is proved.

One view is that when the problem is raised, the "Advance Notice of Administrative Punishment" should be made in accordance with Article 31 of the "Administrative Punishment Law" (2017 Amendment). It is certified as follows:

Legislation Act (amended in 2015)Article 93 stipulates that laws, administrative regulations, local regulations, autonomous regulations and special regulations and rules shall not be retroactive, except for special provisions made to better protect the rights and interests of citizens, legal persons and other organizations.

Administrative Punishment Law (2021 Revision)Article 37 provides that the implementation of administrative penalties shall be subject to the provisions of the laws, regulations and rules at the time of the occurrence of the illegal act. However, when the decision on administrative penalty is made, if the laws, regulations and rules have been amended or abolished, and the new provisions impose a lighter penalty or are not considered illegal, the new provisions shall apply.

Therefore, because the illegal act occurred before the implementation of the new law, and Article 37 of the new law clearly stipulates the implementation of administrative penalties, the provisions of the laws, regulations and rules at the time of the illegal act shall apply. In the absence of a distinction between substantive law and procedural law, the provisions of the law have made legal reservations, and both substantive law and procedural law are uniformly applicable to the law at the time of the occurrence of the illegal act, and the new procedural law has no retroactive effect.

To sum up, when the question is raised, the "Advance Notice of Administrative Punishment" shall be made in accordance with Article 31 of the "Administrative Punishment Law" (2017 Amendment).

The theory of "procedural law from the new" is proved.

Another point of view is that when the problem is raised, the "Advance Notice of Administrative Punishment" should be made in accordance with Article 44 of the "Administrative Punishment Law" (2021 Revision). It is certified as follows:

The Supreme People's Court issued.<关于审理行政案件适用法律规范问题的座谈会纪要>Notice [Act (2004) No. 96] 〕It is stipulated that when the people's court examines the legality of a specific administrative act,The old law applies to substantive issues and the new law applies to procedural issues.Except in the following circumstances: (1) laws, regulations or rules provide otherwise; (II) the application of the new law is more beneficial to the protection of the legitimate rights and interests of the administrative counterpart; (III) the substantive provisions of the new law should be applied according to the nature of the specific administrative act.

Reply of the Supreme People's Court on the Application of Judicial Interpretation No. 28 [1996] [Repealed by the Decision of the Supreme People's Court on Repealing Some Judicial Interpretations (Thirteenth Batch) (issued on July 8, 2019; implemented on July 20, 2019)]According to the provisions of the Supreme People's Court Fa [1996] No. 28 "Provisions on how to determine the place of performance of purchase and sale contracts in the jurisdiction of economic dispute cases" is a procedural provision on the jurisdiction of the people's court cases. Regardless of whether the purchase and sale contract was signed before or after the entry into force of the provision, all cases of purchase and sale contract disputes brought to the people's court after the entry into force of the provision shall apply the provision, and the provisions of Article 19 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law shall no longer apply.

Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law to Outstanding Cases at the Time of the Implementation of the Amended Civil Procedure Law (Fa Shi [2012] No. 23)It is stipulated that the revised Civil Procedure Law shall apply to the outstanding cases on January 1, 2013, unless otherwise provided in these Provisions. In the cases specified in the preceding paragraph, the procedural matters that have been completed before January 1, 2013 in accordance with the provisions of the Civil Procedure Law and relevant judicial interpretations before the amendment shall still be valid.

Therefore, although the "procedural from the new law" is not clearly stated in the relevant laws, the "from the old and beneficial" established in Article 93 of the Legislative Law and the principle of procedural law from the new, because the revised procedural law is bound to be more conducive to protecting the rights and interests of citizens, legal persons and other organizations. As the most generally applicable procedural law-"Civil Procedure Law" before and after the amendment of the application of the problem, the Supreme People's Court has also given a clear answer to the new procedural law through judicial interpretation. Moreover, as early as 1998 and 2003, the answers given by the Supreme People's Court in the procedural provisions of case jurisdiction and the minutes of applicable laws in administrative cases are consistent with the aforementioned content.

From the analysis of the text description stipulated by the law, Article 43 of the Administrative Punishment Law (revised in 2021) stipulates that "before making an administrative punishment decision, the administrative organ shall inform the party concerned of the contents, facts, reasons and basis of the administrative punishment to be made, and inform the party concerned of the rights of statement, defense and hearing according to law", which is more than Article 37 of the Administrative Punishment Law (revised in 2017) stipulates that "administrative punishment shall be imposed, the provisions of the laws, regulations and rules at the time of the violation shall apply. However, when the administrative penalty decision is made, the laws, regulations, and rules have been amended or abolished, and the new regulations are relatively light or not considered illegal. The application of the new regulations" adds and deletes the content, highlighting the "rights enjoyed by the parties in accordance with the law." The rights of statement, defense, and request for a hearing "further demonstrate the profitability of the procedure.

To sum up, when the problem is raised, the "Advance Notice of Administrative Punishment" shall be made in accordance with Article 44 of the "Administrative Punishment Law" (revised in 2021 and implemented on July 15, 2021).

The author is inclined to the second proof point of view, the reason is that the author basically believes that procedural law in principle only provides legal relief and the realization of rights (or power) methods and ways, in the case of the question, retroactive does not affect the trust interests of the subject of illegal acts.

Coincidentally, the author inquired about the "Administrative Penalty Decision (State Municipal Supervision Penalty [2021] No. 74)" made by the State Administration for Market Regulation on October 8, 2021. The facts involved in the case occurred on or before April 2021, but The General Administration applied the new "Administrative Penalty Law" (revised in 2021).

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