□ Our reporter Zhang Wei
In order to further promote the reform of "delegating power, delegating power, regulating services" and optimizing the business environment, the State Council recently issued the "Decision on Cancelling and Adjusting a Batch of Fines" (hereinafter referred to as the "Decision").
The relevant person in charge of the Ministry of Justice answered questions from reporters on issues related to the "Decision".
Q: Please introduce the background of the "Decision"?
A: Since the 18th National Congress of the Communist Party of China, administrative law enforcement agencies at all levels have conscientiously implemented the important instructions and requirements of General Secretary Xi Jinping on administrative law enforcement, and continuously promoted strict, standardized, impartial and civilized law enforcement. The level of law enforcement has been significantly improved. Problems still exist to a certain extent. In order to further improve the efficiency and quality of administrative law enforcement and create a rule-of-law business environment, the State Council has deployed and carried out the work of cleaning up the provisions on unreasonable fines in administrative regulations and departmental rules.
In order to implement the decision-making and deployment of the State Council, since May 2021, the Ministry of Justice has organized the departments of the State Council to clean up the fines in administrative regulations and departmental rules. Regulations on fines in areas such as transportation and market supervision.
On the basis of in-depth research and extensive solicitation of opinions, the Ministry of Justice, together with relevant departments, drafted the "Decision", which was deliberated and approved by the State Council executive meeting on July 21, 2022.
Q: What are the contents of the "Decision", and how many fines are cancelled and adjusted?
A: The Decision has three main contents.
The first is to cancel and adjust 53 fines, of which 29 fines are cancelled, including 1 by the Ministry of Public Security, 12 by the Ministry of Transport, and 16 by the State Administration of Market Supervision; 24 fines have been adjusted, including 19 by the Ministry of Transport, 5 General Administrations of Supervision.
The "Decision" also clarifies the names, setting basis, handling decisions and alternative regulatory measures of these fines.
The second is to put forward clear time requirements for relevant legislative work. Relevant departments should submit the draft revision of administrative regulations to the State Council within 60 days from the date of issuance of the "Decision", and complete the revision and abolition of departmental regulations. If it is necessary to adjust according to the revised administrative regulations, the revision and abolition work shall be completed within 60 days after the relevant administrative regulations are promulgated.
The third is to put forward principle requirements for alternative regulatory measures. If it is really necessary to formulate alternative regulatory measures after fines are cancelled, the relevant departments should study carefully according to the law, strictly implement regulatory responsibilities, innovate and improve regulatory methods, standardize regulatory procedures, and improve the scientific nature of regulation. It will further improve the efficiency of supervision and provide strong support for the promotion of high-quality development.
Q: After the fine is lifted, how will it be regulated to avoid risks?
A: The "Decision" cancels 29 fine items, but the cancellation does not mean that they are ignored. For these matters, the "Decision" requires the relevant departments to strictly implement their supervisory responsibilities.
First, for those that can be supervised during and after the event by means of "double randomness, one disclosure", etc., it is included in the daily supervision. If the administrative organ finds illegal acts, urge the offenders to make corrections in a timely manner, improve the management system, and operate legally and compliantly.
Second, where other laws and regulations provide, supervision shall be carried out in accordance with relevant regulations, and other types of administrative punishments such as warnings, circulars of criticism, etc. shall be applied in accordance with the law according to the facts, nature, circumstances and social harm of illegal acts, so as to avoid repeated fines at the source.
Thirdly, with the advancement of science and technology, for those that can achieve management purposes through data sharing and other means, the relevant administrative organs will conduct inspection and supervision through information-based means to effectively reduce the burden on enterprises and the public.
Q: The "Decision" adjusted 24 fine items. How are these items adjusted and what are the considerations?
A: The main way to adjust these 24 fine items is to reduce the amount of fines.
To implement these adjustment measures, we must grasp three key points.
First, adhere to the principle of equal punishment.
The fines stipulate that factors such as the level of economic and social development, the characteristics of the industry, the subjective faults and profits of the parties, the circumstances of the illegal act and the damage caused, the norms of discretion, and the play of the preventive role should be considered in a comprehensive manner. Strict must be strict, and light must be light.
The second is to strictly abide by the legislative authority.
Where laws and administrative regulations only set fines without specifying the specific range or amount of fines, departmental rules may make specific provisions within the limits set by the State Council.
Where laws and administrative regulations only set other administrative penalties for illegal acts, but no fines are set, departmental rules shall not impose additional fines, and shall be strictly enforced in accordance with the provisions of higher-level laws.
Where laws and administrative regulations have not been formulated, departmental rules may set fines within the limits prescribed by the State Council in accordance with the law.
The third is to scientifically determine the amount of fines.
Where a certain multiple and a certain amount of fines are set at the same time for the same illegal act, coordination should be strengthened to avoid conflicts.
Q: What is the significance of the implementation of the "Decision"?
How to regulate the implementation of fines in the future?
How to ensure that the "Decision" is truly implemented?
A: The implementation of the "Decision" is conducive to solving some outstanding problems in practice, benefiting enterprises and the people, enhancing the sense of gain of enterprises and the public, and further promoting the reform of "delegating power, regulating services" and optimizing the business environment.
Here are four more points on the implementation of fines and the implementation of the "Decision".
First, the administrative organs must insist on law enforcement for the people, and fines are not an end, but a means.
It is necessary to prevent, correct and punish behaviors that violate the administrative order through fines and other penalties, maintain public interests and social order, and protect the legitimate rights and interests of enterprises and the masses. Issue a confiscation indicator.
The "Notice on Further Implementing the Administrative Punishment Law of the People's Republic of China" issued by the State Council in 2021 clearly requires that the financial department should strengthen the supervision of the implementation of systems such as the separation of fines and payments and the separation of income and expenditure, and work with judicial administration and other departments. Carry out special supervision and inspections as required, and the Ministry of Justice will cooperate with the Ministry of Finance to do a good job in relevant work.
Second, the administrative organ can reduce the fine beyond the statutory range in accordance with the Administrative Penalty Law.
In response to the fact that administrative organs are unwilling or afraid to apply the provisions on mitigation and lighter punishment in practice, the Administrative Punishment Law revised in 2021 will change "should be lighter or mitigated in accordance with the law" to "should be lighter or mitigated", and delete "in accordance with the law". ”, which is also to guide the administrative organs to directly apply the provisions of the Administrative Penalty Law, and implement administrative penalties reasonably according to the specific circumstances of the case.
Third, the administrative organ can make a decision not to punish.
Law enforcement must be both vigorous and warm, and Article 33 of the Administrative Punishment Law clearly stipulates the circumstances of no punishment and exemption from punishment.
There are some illegal acts whose illegality is relatively weak, the illegal circumstances are relatively minor, no harmful consequences are caused, and the parties make corrections in a timely manner, although they also destroy the administrative order, they do not need to be given administrative penalties.
The "Notice of the State Council on Further Implementing the Administrative Punishment Law of the People's Republic of China" requires that all regions and departments should formulate and publish a list of tolerance and exemption from punishment in various fields according to the actual situation.
In recent years, Shanghai, Zhejiang, Guangdong and other places have issued the "Exemption List" and "Light Penalty List", which have achieved good law enforcement and social effects.
It should be emphasized here that minor violations that are not in the list of "exemption" and "minor penalty" can also be directly applied to the provisions of leniency, mitigation and exemption if they comply with the Administrative Penalty Law.
The fourth is to strengthen supervision to ensure the implementation of the "Decision".
This clean-up adopts the method of "decision first, then amend the law". In order to ensure that the "Decision" is truly implemented, the "Decision" sets a time requirement for the revision of administrative regulations and departmental rules.
The Ministry of Justice will promote the legislative work of relevant administrative regulations in accordance with legal procedures, and urge and coordinate relevant departments to revise and abolish departmental regulations in a timely manner, to ensure that fines are revised in place in accordance with the "Decision" requirements, and to regulate fines from the source.
After the relevant regulations are revised, the administrative organs must strictly follow the revised administrative regulations and departmental rules, so that the results of the clearing of fines can actually benefit enterprises and the masses.