Administrative compulsory law enforcement, administrative compulsory and administrative penalties

Definition of administrative compulsory enforcement: Administrative compulsory enforcement refers to a law enforcement act in which a specific administrative organ adopts compulsory measures to ensure the implementation of laws, regulations and administrative decisions. Its characteristics are as follows:

The first is administrative, which occurs in the process of administrative management and is implemented by specific administrative organs; the second is coercion, based on the power and role of the state administrative organs, forcibly restraining the will of the counterpart and forcing the counterpart to obey; The third is execution, which aims to ensure the realization of the purpose and state of administrative management required by laws, regulations or administrative decisions. This is the most essential feature of administrative enforcement.

Conception. Administrative compulsory enforcement refers to specific administrative acts in which citizens, legal persons or other organizations refuse to perform their obligations under the administrative law, and administrative organs or people's courts take compulsory measures in accordance with law to compel them to perform their obligations.

Features. 1. Administrative enforcement is premised on the administrative counterparty's failure to perform its obligations under administrative law. Only when the administrative counterpart bears a statutory obligation but refuses to perform it, can the administrative organ adopt certain coercive means to compel the other party to perform its obligations in order to ensure the normal conduct of administrative management activities.

The obligations in administrative law include those stipulated in laws, regulations, and rules, as well as those stipulated in administrative decisions made by administrative organs, as well as the obligations to be performed by the administrative counterpart as determined in the administrative judgments and rulings of the people's courts.

2. Administrative compulsory enforcement shall be carried out by the administrative organs or people's courts prescribed by law. According to the provisions of laws and regulations, there are two types of subjects of administrative compulsory enforcement: one is that the administrative organ directly takes compulsory enforcement measures against the administrative counterpart in accordance with the authorization of laws and regulations; The other type is for the administrative organ to submit an application for compulsory enforcement to the people's court, and the people's court will enforce it.

3. The scope of administrative compulsory enforcement is wide. It can be a thing, a behavior, or a person.

4. In the implementation of administrative compulsory enforcement, the administrative organ may reach an enforcement agreement with the parties without harming the public interest and the lawful rights and interests of others.

Quality. 1 Administrative. Administrative compulsory enforcement is a unilateral specific administrative act carried out by an administrative organ in accordance with the law in order to realize administrative power, and it has an obvious administrative nature.

2 Mandatory. This is a fundamental feature of administrative enforcement. It is the coercive nature of such measures that distinguishes it from other administrative measures imposed by administrative organs that can be achieved without resorting to coercion.

3 Execution. The purpose of administrative compulsory enforcement is to urge the administrative counterparty to perform its obligations and ensure the actual and effective implementation of the administrative handling decision.

The administrative, coercive and enforceable nature of administrative compulsory enforcement are interrelated and indispensable.

If you read the definition in the Administrative Coercion Law repeatedly, you will understand it after repeated reading.

Simply understood:

Administrative coercive measures are only means, they are temporary administrative acts, and they are acts taken as a last resort to achieve a certain goal. For example, in order to protect evidence from loss, the suspected relevant places and objects are sealed and seized, but after the case is handled, these seals and seizures must be lifted and restored to their original state. Coercive measures are preventive in nature.

Administrative enforcement is the use of administrative means to compel the purpose of administrative management, such as ordering you to make corrections and you refuse to do so, then forcibly correcting your illegal acts in accordance with legal procedures, such as: forced demolition of illegal buildings, including refusal to pay fines through the court to force the transfer of money from your account. Enforcement is an after-the-fact coercion.

Reading the definition carefully, it is understandable.

Analysis of the Law of Law and Law: 1. Administrative coercive measures refer to the conduct of administrative organs in the course of administrative management to temporarily restrict citizens' personal freedom in accordance with the law, or to temporarily control the property of citizens, legal persons or other organizations in order to stop illegal acts, prevent the destruction of evidence, avoid the occurrence of harms, and control the expansion of dangers. 2. Administrative punishment refers to the administrative act of an administrative entity with the power of administrative punishment to give legal sanctions to the administrative counterpart for violating administrative laws and regulations but not constituting a crime in order to safeguard the public interest and social order, protect the rights and interests of citizens, legal persons or other organizations.

Differences: 1. Administrative punishment is the final disposition of the rights of the administrative counterpart, for example, the reason why confiscation of property is an administrative punishment is because it is the final deprivation of the ownership of the property of the counterpart, that is, the disposition; For example, the reason why the seizure of property is an administrative compulsory measure is because it is not the final disposition of the ownership of the property, but only a temporary restriction on the right to use and dispose of the property in the short term. 2. Administrative punishment is an act of administrative sanction, so it must be premised on the illegal behavior of the administrative counterpart; Administrative coercive measures are not an act of administrative sanctions, so they are not necessarily related to whether the conduct of the administrative counterpart is illegal.

It can be aimed at the illegal acts of the counterparty, or it can be directed at the lawful acts of the counterpart.

Legal basis: Article 1 of the "Administrative Coercion Law of the People's Republic of China" This Law is formulated in accordance with the Constitution in order to regulate the establishment and implementation of administrative compulsion, to safeguard and supervise the performance of administrative organs in accordance with the law, to preserve the interests of the public and social order, and to protect the legitimate rights and interests of citizens, legal persons and other organizations.

Article 1 of the Administrative Punishment Law of the People's Republic of China: This Law is formulated on the basis of the Constitution so as to regulate the establishment and implementation of administrative punishments, to safeguard and supervise the effective implementation of administrative management by administrative organs, to preserve the public interest and social order, and to protect the lawful rights and interests of citizens, legal persons, or other organizations.

Administrative coercive measures include the following: (1) restricting citizens' personal freedom; (2) Sealing up places, facilities, or property; (3) Seizure of property; (4) Freezing deposits and remittances; (5) Other administrative compulsory measures. "Administrative compulsory measures" refers to the conduct of administrative organs, in the course of administrative management, to temporarily restrict citizens' personal freedom, or to temporarily control the property of citizens, legal persons, or other organizations, in order to stop illegal acts of arbitrage, prevent the destruction of evidence, avoid the occurrence of such hazards, and control the expansion of dangers.

[Legal basis].Administrative Coercion Law of the People's Republic of China

Article 2: "Administrative compulsion" as used in this Law includes administrative compulsory measures and administrative compulsory enforcement.

"Administrative compulsory measures" refers to the conduct of administrative organs, in the course of administrative management, to temporarily restrict citizens' personal freedom, or to temporarily control the property of citizens, legal persons, or other organizations, in order to stop illegal acts, prevent the destruction of evidence, avoid the occurrence of dangers, and control the expansion of dangers.

"Administrative compulsory enforcement" refers to the conduct of administrative organs or administrative organs applying to the people's courts to compel the performance of obligations in accordance with law against citizens, legal persons, or other organizations that do not perform on administrative decisions.

The enforcement of administrative punishments, as a necessary means to achieve administrative punishments, plays a very important role. An important condition for how to give play to the role of enforcement is that there must be an enforcement entity with statutory authority, that is, an administrative enforcement organ. The organ that takes compulsory measures against a person who violates the provisions of the administration of public security and refuses to comply with the detention decision is the public security organ, which means that the public security organ has the power to enforce administrative detention.

Another example is the Regulations on the Administration of Registration of Enterprise Legal Persons, which stipulate that if an enterprise legal person makes a decision to impose a fine on the competent registration authority, and fails to file an appeal and fails to pay the fine within the time limit, the competent registration authority may notify its depositary bank to make the transfer in accordance with the prescribed procedures.

Therefore, this provision also gives the registration authority the power to enforce when the enterprise legal person fails to pay the fine. In addition, the administrative enforcement power of administrative organs is limited, and in addition to the enforcement power to impose additional fines, there must be legal provisions for other enforcement powers such as handling the seizure of seized goods and freezing the transfer of funds. According to the provisions of the current law, only the three administrative departments of public security, customs and taxation have the above-mentioned administrative enforcement powers.

The people's courts are also the enforcement organs for administrative punishment decisions. The Administrative Punishment Law stipulates that if a party fails to comply with the administrative punishment decision within the time limit, the administrative organ may apply to the people's court for compulsory enforcement.

1. What are the procedures for administrative compulsory enforcement?

Generally speaking, enforcement by administrative authorities is subject to the following procedures:

1. Admonishment; 2. Statements and defenses;

3. Make an executive decision;

4. Delivery; 5. Adopt various enforcement methods.

Where upon review, the people's court finds that the administrative decision does not have the effect of statutory enforcement, that the administrative decision has no statutory basis, that the obvious facts are unclear or that the legally-prescribed procedures are violated, or that enforcement might cause irreparable losses, it shall rule not to enforce it. If, upon review, it is found that the requirements for applying for enforcement are met, the people's court shall make an enforcement ruling, issue a public announcement and serve it on the parties within three days, and limit the time limit for the parties to perform.

Administrative compulsory enforcement includes the following methods: imposing fines or late fees on the parties; transfer its deposits, repayments, and remittances; auction or lawful disposal of sealed or seized premises, facilities, or property; and requiring the parties to remove obstacles and restore the original state.

[Legal basis].Article 12 of the Administrative Coercion Law of the People's Republic of China.

Methods of administrative enforcement:

1) Impose additional fines or late fees;

2) Transferring deposits and remittances;

3) Auctioning or lawfully disposing of sealed or seized venues, facilities, or property;

4) Removing obstructions and restoring the original state;

5) Substitute performance;

6) Other methods of compulsory enforcement.

Article 9 of the Administrative Punishment Law of the People's Republic of China, which came into effect on July 15, 2021.

Types of administrative penalties:

1) Warnings and circulars of criticism;

2) Fines, confiscation of unlawful gains, and confiscation of illegal property;

3) Temporarily withholding licenses, lowering qualification levels, or revoking licenses; Tong cracked.

4) Restricting the development of production and business bureau activities, ordering the suspension of production and business, ordering closure, or restricting employment;

5) Administrative detention;

6) Other administrative punishments provided for by laws and administrative regulations.