Administrative Penalty Decision Application for Compulsory Enforcement Not Accepted Object of Recons

Articles 44 and 45 of the Administrative Punishment Law stipulate: "After an administrative punishment decision is made in accordance with law, the parties shall perform it within the time limit of the administrative punishment decision", "Where a party is dissatisfied with an administrative punishment decision and applies for administrative reconsideration or initiates an administrative lawsuit, the enforcement of the administrative punishment shall not be stopped, except as otherwise provided by law." Article 21 of the Administrative Reconsideration Law and Article 44 of the Administrative Litigation Law also respectively stipulate that the enforcement of specific administrative acts shall not be stopped during the period of administrative reconsideration or litigation.

Article 51 of the Administrative Punishment Law also stipulates that if a party fails to perform an administrative penalty decision within the time limit, the administrative organ that made the administrative punishment decision may apply to the people's court for compulsory enforcement. According to the above provisions, many administrative law enforcement personnel believe that:

As long as the party fails to perform the administrative penalty decision within the time limit of the administrative penalty decision, the administrative organ that made the penalty decision may apply to the people's court for compulsory enforcement at any time, and the people's court shall enforce it, regardless of whether the party has applied for reconsideration or filed a lawsuit. However, in practice, the people's courts do not accept such applications for enforcement, based on Article 88 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Enforcement of the Administrative Litigation Law of the People's Republic of China (hereinafter referred to as the "Interpretation"), which states that "when an administrative organ applies to the people's court to enforce its specific administrative acts, it shall file an application within 180 days from the date of the expiration of the statutory time limit for filing a lawsuit by the person subject to enforcement" (i.e., the person subject to enforcement cannot file an application for compulsory enforcement if the statutory time limit for filing a lawsuit has not expired) and Article 94" In the course of litigation, if the defendant or the rights holder determined by the specific administrative act applies to the people's court to enforce the specific administrative act being sued, the people's court shall not enforce it". Some administrative organs and law enforcement personnel have complained about this "Interpretation", holding that this interpretation of the Supreme Court is a restriction and constraint on administrative law enforcement, seriously affects administrative efficiency, and undermines the authority of administrative law enforcement, and that it contradicts the relevant provisions of the Administrative Punishment Law, the Administrative Reconsideration Law, and the Administrative Litigation Law, and should be an illegal and invalid interpretation.

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Legal analysis: According to the provisions of relevant laws of our country, those who are dissatisfied with the administrative punishment decision may have the right to apply for administrative reconsideration in accordance with the law, and may also directly file an administrative lawsuit with the people's court. Administrative reconsideration refers to a legal system in which citizens, legal persons, or other organizations believe that a specific administrative act of an administrative entity is illegal or improperly infringes upon their legitimate rights and interests, and submits an application to the competent administrative organ for a review of the specific administrative act in accordance with the law, and the administrative reconsideration organ conducts a review of the legality and appropriateness of the specific administrative act applied for in accordance with legal procedures, and makes an administrative reconsideration decision.

Legal basis: "Administrative Punishment Law of the People's Republic of China" Article 6: Citizens, legal persons or other organizations enjoy the right to make statements and defenses against administrative punishments given by administrative organs; Those who are dissatisfied with the administrative punishment have the right to apply for administrative reconsideration or file an administrative lawsuit in accordance with law.

If the parties have objections to the determination of the road traffic accident, they may submit a written application for review to the traffic management department of the public security organ at the next higher level within three days from the date of delivery of the road traffic accident determination. Articles 24 and 31 of the "Provisions on Procedures for Handling Traffic Violations" stipulate that if a party is dissatisfied with the administrative penalty decision and administrative compulsory measures made by the public security traffic management department and its traffic police, it may apply for administrative reconsideration or file an administrative lawsuit in accordance with the law.

1. Apply for administrative reconsideration. The parties may submit an application for administrative reconsideration to the competent public security organ of the public security traffic management department that made the decision within 60 days from the date of receipt of the "Public Security Administrative Punishment Decision", "Public Security Traffic Management On-the-spot Punishment Decision" and "Public Security Traffic Management Administrative Compulsory Measures Certificate". The administrative leniency reconsideration organ shall make an administrative reconsideration decision within 60 days from the date of acceptance.

2. File an administrative lawsuit. It can be divided into the following three situations: (1) If the party is dissatisfied with the reconsideration decision made by the administrative reconsideration organ, the party concerned may file an administrative lawsuit with the people's court in accordance with the law within 15 days from the date of receipt of the reconsideration decision.

2) Where an administrative reconsideration organ decides not to accept the case or fails to reply beyond the time limit for administrative reconsideration after acceptance, the party concerned may, within 15 days from the date of receipt of the decision not to accept the case or the date of expiration of the administrative reconsideration period, file an administrative lawsuit with the people's court in accordance with the Liquid Wang Law. (3) Where parties are dissatisfied with the administrative punishment decision or administrative compulsory measures, they may directly initiate an administrative lawsuit with the people's court within three months from the date of receipt of the punishment decision. Additional Information:

Administrative reconsideration is an activity and system in which a person who has a legal interest in an administrative act believes that an administrative act taken by an administrative organ infringes upon his legitimate rights and interests, and applies for reconsideration to an administrative organ with statutory authority in accordance with the law, and the reconsideration organ examines the legality and rationality of the applied administrative act and makes a decision in accordance with the law. Administrative reconsideration is a passive administrative act carried out by an administrative organ, which has the characteristics and attributes of administrative supervision, administrative remedy and administrative judicial act. It is of great significance and plays an important role in supervising and safeguarding the exercise of administrative functions and powers by administrative entities in accordance with the law and protecting the legitimate rights and interests of counterparts.

Administrative reconsideration refers to a legal system in which citizens, legal persons or other organizations believe that a specific administrative act of an administrative entity is illegal or improperly infringes upon their legitimate rights and interests, and submits an application to the competent administrative organ for a review of the specific administrative act in accordance with the law, and the administrative reconsideration organ conducts a review of the legality and appropriateness of the specific administrative act applied for in accordance with legal procedures, and makes an administrative reconsideration decision. Its main characteristics are: 1. Administrative reconsideration takes administrative disputes and some civil disputes as the object of handling; 2. Administrative reconsideration directly takes specific administrative acts as the object of review; 3. Administrative reconsideration shall be based on legality and reasonableness; 4. Administrative reconsideration shall be mainly conducted in writing; 5. The administrative counterpart shall be the applicant and the administrative subject shall be the respondent; 6. Administrative reconsideration shall be handled by the administrative organ.

Legal analysis: Where a party is dissatisfied with an administrative punishment decision and applies for administrative reconsideration or initiates an administrative lawsuit, the enforcement of the administrative punishment is not suspended, except as otherwise provided by law.

Legal basis: "Administrative Punishment Law of the People's Republic of China" Article 73: Where a party is dissatisfied with an administrative punishment decision and applies for administrative reconsideration or initiates an administrative lawsuit, the enforcement of the administrative punishment is not stopped, except as otherwise provided by law.

Where parties are dissatisfied with an administrative punishment decision restricting their personal liberty and apply for administrative reconsideration or initiate an administrative lawsuit, they may submit an application for suspension of enforcement to the organ that made the decision. Where the circumstances provided for by law are met, enforcement shall be suspended.

Where a party applies for administrative reconsideration or initiates an administrative lawsuit, the amount of the additional fine is not calculated during the period of administrative reconsideration or administrative litigation.

Those who are dissatisfied with the administrative punishment have the right to apply for administrative reconsideration or administrative litigation in accordance with the law. According to the relevant laws and regulations, if an administrative lawsuit is directly initiated, it shall be filed within six months from the date on which the administrative act was made or should have been known.

Administrative reconsideration and administrative litigation do not affect the enforcement of administrative punishments: Article 45 of China's "Administrative Punishment Law" stipulates that if a party is dissatisfied with an administrative punishment decision and applies for administrative reconsideration or initiates an administrative lawsuit, the enforcement of the administrative punishment shall not be stopped, except as otherwise provided by law.

This shows that administrative reconsideration and administrative litigation do not affect the enforcement of administrative penalties. The circumstances under which the law otherwise provides that enforcement of administrative punishments may be stopped are mainly the following: (1) the defendant finds it necessary to stop enforcement; (2) The plaintiff applies to stop enforcement, and the people's court finds that the enforcement of the specific administrative act will cause irreparable losses, and that the suspension of enforcement will not harm the public interest, and rules to stop enforcement; (3) Where laws or regulations provide for the suspension of enforcement.

Legal analysis: If the violation of the law is not discovered within two years, no administrative punishment will be given. Provisions:

The time period provided for in the preceding paragraph is calculated from the date on which the illegal conduct occurred; Where the illegal conduct is continuous or continuous, it is calculated from the date on which the conduct ends. During the period of litigation, the enforcement of specific administrative acts is not stopped.

Legal basis: "Administrative Litigation Law of the People's Republic of China" Article 44: For administrative cases that fall within the scope of the people's courts, citizens, legal persons, or other organizations may first apply to the administrative organs for reconsideration, and where they are not satisfied with the reconsideration decision, they may file a lawsuit with the people's courts; You can also file a lawsuit directly with the people's court. Where laws and regulations provide that an application shall first be made to an administrative organ for a judgment reconsideration, and where a lawsuit is filed in the people's court after being dissatisfied with the reconsideration decision, the provisions of the law and the regulations on selling the law shall be followed.