The Administrative Enforcement Law, a major piece of legislation to regulate administrative acts, was finally adopted and officially promulgated at the 21st meeting of the 11th National People’s Congress on 30 June after long discussions stretching back over the past 12 years. Effective as of 1 January 2012, the law primarily governs the following areas.
Definition
The law clarifies and defines what administrative enforcement is. Administrative enforcement comprises compulsory administrative measures and their implementation. The law also sets out various types of compulsory administrative measures and types of administrative enforcement. Specifically, compulsory administrative measures include measures such as restrictions on civil liberty; the sealing of premises, facilities or property; the seizure of property; and the freezing of deposits and remittances. Administrative enforcement includes the imposition of fines; the transfer of deposits or remittances; the auction or disposal of sealed or seized premises, facilities or property according to law; the removal of obstacles; restitution; and execution on behalf of others.
Major principles
In the section of the law which outlines general legal principles, emphasis is placed on some principles which must be observed when administrative enforcement is implemented. These principles are: (1) administrative enforcement is governed by law, and should be implemented in accordance with statutory authority, scope, conditions and procedures; (2) the use and implementation of administrative enforcement should be appropriate. If administrative purposes can be achieved through non-compulsory measures, administrative enforcement should not be used; (3) administrative enforcement should be accompanied by education; and (4) administrative authorities and their staff should not use their administrative enforcement powers for the benefit of themselves or their authorities.
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Safeguards included
Despite the stringent regulation of the acts of administrative enforcement, the law contains various compassionate provisions. For example, it is provided that no daily necessities of individual citizens or their dependent family members may be sealed or seized. If it is necessary to conduct testing, inspection, quarantine or technical appraisal of sealed or seized items, the cost of this should be borne by the administrative authorities. The administrative authorities should safeguard and should not use or damage any sealed or seized premises, facilities or property. They should be held liable for compensation for any losses. The administrative authorities can appoint a third party to safeguard seized premises, facilities or property. The third party should not damage or remove or dispose of them without authorization. If losses are caused by the third party, the administrative authorities should offer compensation first and then recover the compensation from the third party. Safekeeping expenses arising from seal-up or seizure should be borne by the administrative authorities.
Flexibility provided
While regulating administrative enforcement and avoiding and preventing the abuse of power, the law also enhances administrative flexibility by specifying various exceptions. For example, the administrative authorities can take emergency or provisional measures in the event of natural disasters, accidents, public health incidents, social security incidents or other emergencies. However, when administrative authorities take prudential measures for the financial industry, and mandatory technical control measures for import and export goods, special rules should apply because these are sectors with peculiar requirements.
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Business Law Digest is compiled with the assistance of Haiwen & Partners. The authors can be emailed at baochen@haiwen-law.com. Readers should not act on this information without seeking professional legal advice.
