Typical Cases of Administrative Reconsideration (1)|A hotel is dissatisfied with the administrative penalty of the Market Supervision and Administration Bureau and applies for administrative reconsideration

A hotel is dissatisfied with the Market Supervision and Administration Bureau

Administrative reconsideration of administrative punishment application

　　【Keywords】

　　Administrative reconsideration and modification of market supervision for minor violations will not be subject to administrative penalties

　　[Basic facts of the case]

　　In accordance with the requirements of the Detailed Rules for the Implementation of the Regulations of the People's Republic of China on the Administration of Registration of Market Entities, the applicant hotel shall submit the 2022 annual enterprise report and publicize it to the public from January 1 to June 30, 2023. Because the applicant failed to submit and publicize the 2022 annual report within the specified time, the respondent, a market supervision and administration bureau in the Inner Mongolia Autonomous Region, included it in the list of abnormal business operations, and successively issued a "Notice of Inquiry" and a "Notice of Administrative Punishment", and then made a decision to fine 8,000 yuan and order corrections to be made. The applicant was dissatisfied with the decision and applied to the Municipal People's Government for administrative reconsideration.

　　[Reconsideration Handling]

　　The administrative reconsideration agency held that the main focus of dispute between the two parties was whether the conduct involved in the case was a situation in which administrative punishment was not imposed and whether the punishment range was appropriate. The Inner Mongolia Autonomous Region List of Non-Administrative Penalties for Minor Violations of Market Supervision and Administration (2022 Edition) stipulates that if the illegal act is minor and corrected in a timely manner and does not cause harmful consequences, or if the violation is the first time and the harmful consequences are minor and corrected in a timely manner, or if the party has sufficient evidence to prove that there is no subjective fault, no administrative punishment will be imposed. The "timely correction" in this provision refers to taking the initiative to make corrections before the market regulation department discovers clues about illegal acts, or after discovering clues about illegal acts and before ordering corrections, or making corrections as required and within a time limit after ordering corrections. Both the National Enterprise Credit Information Publicity System and the applicant's Business License both remind the applicant that the applicant should submit and publicize the annual report within the statutory time limit, and the submission time is as long as 6 months, and the applicant has not conducted an annual report before the administrative punishment decision involved in the case is made, which is subjectively at fault and clearly does not meet the constitutive elements of "timely correction" above, and is not a circumstance where administrative punishment is not granted.

　　The "Detailed Rules for the Implementation of the Regulations of the People's Republic of China on the Registration and Administration of Market Entities" stipulates that if a market entity fails to publicize or submit an annual report within the prescribed time limit, it may be fined up to 10,000 yuan. The Inner Mongolia Autonomous Region Market Supervision and Administration Administrative Punishment Discretion Benchmark stipulates that the punishment for the above acts is "a fine of less than 3,000 yuan in mitigating circumstances, a fine of between 7,000 yuan and 10,000 yuan in aggravated circumstances, and a fine of between 3,000 yuan and 7,000 yuan in general circumstances." In this case, the applicant violated the law for the first time, the illegal act was single, and the harmful consequences were minor, and the applicant's illegal act was comprehensively judged to be minor and the punishment could be mitigated. The respondent made the decision to impose a fine of 8,000 yuan, which violated the principle of proportionality of the penalty and lacked appropriateness. The administrative reconsideration organ then made a decision to modify the original administrative act and changed the amount of the fine to 3,000 yuan.

　　【Typical Significance】

　　Administrative reconsideration should examine both the legality and appropriateness of administrative acts. With regard to inappropriate administrative acts, the administrative reconsideration organs can directly make a decision to change them, which is an important embodiment of the advantages of the administrative reconsideration system. The newly revised Administrative Reconsideration Law puts the change decision in the first place in the type of decision in the law, and stipulates that the administrative reconsideration organ decides to change the administrative act under three circumstances, which reflects the importance of the change decision in the reconsideration decision system, and means that the administrative reconsideration organ should give priority to the change decision on the premise of ascertaining the facts and evidence, so as to achieve the purpose of preventing the idling of the procedure and substantively resolving the administrative dispute. In this case, the administrative reconsideration organ comprehensively considered factors such as the applicant's first violation of the law and the slight harm result, determined that the illegal act met the mitigating circumstances stipulated in the discretionary standards for administrative punishment in the region, and made a decision to change the amount of the fine involved in the penalty decision in accordance with the law, so as to avoid starting the administrative penalty procedure again, improve the quality and efficiency of resolving administrative disputes, and effectively safeguard the legitimate rights and interests of enterprises and the fair order of the market.

Expert commentary

Strengthen the review of the appropriateness of administrative reconsideration and promote

The realization of justice in individual cases - a hotel is not satisfied

Administrative reconsideration of the administrative penalty application of the Administration for Market Regulation

Cao Ling

China University of Political Science and Law

Vice President and Professor, Government Research Institute for the Rule of Law,

Director of the National Research Center for Supervision and Anti-Corruption

　　As a hierarchical supervision system within the administrative system, the review of administrative acts by administrative reconsideration involves two dimensions: legality and appropriateness, which is based on the operating mechanism of self-supervision, and administrative reconsideration has the specific advantages of substantively resolving administrative disputes. In order to activate this advantage, the newly revised Administrative Reconsideration Law strengthens the function of reviewing the reasonableness of administrative reconsideration in terms of broadening the scope of review, deepening the intensity of review, increasing the burden of proof, and strengthening the application of change decisions, highlighting its differentiated development path from the administrative litigation system based on the principle of legality review. This case is of exemplary significance for the reconsideration trial of administrative punishment administrative dispute cases, which is mainly reflected in the following two aspects.

　　It is necessary to be good at applying basic principles in handling cases and comprehensively considering the facts of the case to determine whether the content of an administrative act is appropriate. The focus of the dispute in this case is whether the penalty decision involved in the case is in line with the circumstances of not giving administrative punishment and whether the punishment range is appropriate, which essentially involves the first paragraph of Article 63 of the newly revised Administrative Reconsideration Law, that is, the understanding and application of the decision to modify the administrative act due to the inappropriate content. Theoretically, the appropriateness of the content of an administrative act is mainly related to the understanding and application of the principle of proportionality in the reconsideration trial, which is reflected in the application of the concepts of formal rule of law and substantive rule of law in individual cases. The so-called principle of proportionality emphasizes that the means and measures taken by administrative organs should be proportional to their achievement of management objectives, and in specific cases, whether the principle of proportionality is violated should be examined whether the administrative acts involved conform to the legislative objectives on which they are applied, whether the administrative acts exceed the necessary limits or cannot achieve the administrative management objectives, and whether the administrative acts cause the least damage to the legitimate rights and interests of citizens, legal persons, and other organizations. In this case, on the basis of ascertaining the facts of the case, the reconsideration organ determined that the key to the case was the application of law. On the basis of a comprehensive review of the legal norms on which the punishment decision was based, the administrative reconsideration organ further determined that this case did not fall under the circumstances of not being punished, and the crux of the case was whether the punishment result was appropriate. Combined with this case, the Inner Mongolia Autonomous Region Market Supervision and Administration Discretionary Judgment Criteria for Market Regulation clearly stipulate the circumstances of lighter punishment, ordinary punishment and heavier punishment for the administrative punishment of a market entity that fails to publicize or submit an annual report within the prescribed time limit, but for the determination of the range discretion, the law enforcement agency needs to make an accurate judgment on a case-by-case basis, which then involves the issue of whether the discretionary power of punishment is exercised in accordance with the law. In view of the fact that administrative punishment is a common law enforcement method in administrative management, self-regulation through discretionary benchmarks has become a beneficial way to standardize the discretionary space of administrative punishment in the administrative system. In practice, the discretionary standards for administrative punishment in various regions, fields, and levels are often issued in the form of administrative normative documents. In this case, the reconsideration organ is to review the punishment decision based on the discretionary basis, that is, the reconsideration organ must review both the legality and appropriateness of the penalty decision involved in the case, in which the legality review involves the determination of facts and the application of law, and if the application of law involves the application of the penalty discretionary benchmark as the basis, it is necessary to further review whether the discretionary benchmark is correctly applied. In this case, the reconsideration organ first reviewed and applied the discretionary criteria for administrative punishment, and at the same time applied the principle of proportionality in the general provisions of the Administrative Punishment Law, and on the basis of comprehensively considering factors such as the applicant's first violation of the law and the slight harmful results, it determined that the illegal act was a lighter punishment in the provisions of the discretionary standards for administrative punishment in the region, and then determined that the respondent had imposed an excessively heavy penalty in the discretionary choice of range, which constituted an inappropriate punishment.

　　Be good at using the change decision as the first choice for the suitability review results. The newly revised Administrative Reconsideration Law places the change decision at the top of the reconsideration decision system, aiming to strengthen the priority application of the change decision in the entire reconsideration decision system, which means that as long as the conditions for the application of the change decision are met, the reconsideration organ should directly make the change decision, and cannot revoke and order a remake to replace the change decision. In this case, the administrative reconsideration organ believed that the penalty was too heavy, and in order to avoid the idling of the procedure and improve the quality and efficiency of the case, the reconsideration organ directly made a change decision, which fully reflected the reconsideration organ's responsibility in accordance with the law, actively practiced the concept of active reconsideration, and proceeded from the goal of substantively resolving disputes in one step, and made use of the advantages of administrative reconsideration penetrating supervision to effectively protect the legitimate rights and interests of enterprises, promote the realization of justice in individual cases, and then settle disputes. It should be noted that this case only involves the first circumstance in which Article 63 of the newly revised Administrative Reconsideration Law applies to the modification decision. The reconsideration organ shall also make a decision to modify the facts that are clear, the evidence is conclusive, and the procedures are lawful but there is no basis for correct application (Article 63, Paragraph 1, Item 2 of the newly revised Administrative Reconsideration Law), or where the facts are unclear and the evidence is insufficient, but the facts and evidence have been ascertained by the administrative reconsideration organ (Article 63, Paragraph 1, Item 3 of the newly revised Administrative Reconsideration Law). In addition, in order to highlight the administrative remedy function of administrative reconsideration, administrative reconsideration organs must also abide by the principle of prohibiting adverse modifications when making modification decisions, that is, administrative reconsideration organs may not make a modification decision that is more unfavorable to the applicant, except where a third party makes a contrary request (paragraph 2 of Article 63 of the newly revised Administrative Reconsideration Law).

Source: WeChat public account of the Ministry of Justice