Hanshan County XX Photography Business Department v. Hanshan County Market Supervision and Administration Bureau, Administrative Punishment Case
-- Conditions for the application of administrative punishments
keyword
Administrative Administrative Punishment The principle of proportionality of punishment and the principle of combining punishment with education
Basic facts of the case
XX Photography Business Department was registered and established on April 2, 2020, and its business form is individual business, which is a self-employed industrial and commercial household, and its business scope is wedding photography services and wedding etiquette services. Provide free make-up services to customers in daily operations. On May 12, 2021, during the daily inspection of the jurisdiction, the staff of the Hanshan County Market Supervision and Administration Bureau found that the shelves in the photography business department were placed on the shelves of the photography business department. On May 21, 2021, the staff of the Hanshan County Market Supervision and Administration Bureau questioned the store manager again, and he clearly replied that some cosmetics were purchased from the Internet and some from the factory, but they did not review the qualifications of the suppliers, nor did they maintain the inspection certificate of the products, nor did they establish a cosmetics purchase account. On the same day, the Hanshan County Market Supervision and Administration Bureau delivered the "Notice of Provision of Materials within a Time Limit" (including Shi Jian Ti [2021] No. 10) to a certain photography business department. The following materials are required to be provided within three days: 1. The supplier's market entity registration certificate (April 2, 2020 to May 12, 2021), 2. Cosmetics registration or filing status (April 2, 2020 to May 12, 2021), 3. Product factory inspection certificate (April 2, 2020 to May 12, 2021), 4. In-store cosmetics ledger (April 2, 2020 to May 12, 2021). The plaintiff failed to provide the relevant materials within the specified time. On June 15, 2021, the Hanshan County Market Supervision and Administration Bureau served the "Notice of Administrative Penalty Hearing" (including the City Surveillance Notice [2021] No. 133) to the XX Photography Business Department, informing it that it had the right to make statements, defenses and request a hearing, and that the XX Photography Business Department did not exercise the above rights within the statutory time limit. On June 28, 2021, the Hanshan County Market Supervision and Administration Bureau delivered the "Administrative Penalty Decision" (including Shi Jian Zhi Zi [2021] No. 133) to the photography business department, and imposed administrative penalties on him: 1. Warning; 2. A fine of 10,000 yuan.
On September 27, 2021, the People's Court of Hanshan County, Anhui Province, rendered the (2021) Anhui 0521 Xingchu No. 15 Administrative Judgment, ruling to revoke the administrative penalty decision of Hanshan County Market Supervision and Administration Bureau Han Shi Jian Zhi Zi [2021] No. 133. After the verdict was pronounced, the Hanshan County Market Supervision and Administration Bureau appealed. On December 24, 2021, the Intermediate People's Court of Ma'anshan City, Anhui Province, rendered the (2021) Anhui 05 Xingzhong No. 168 Administrative Judgment: rejecting the appeal and upholding the original judgment.
Grounds for the Trial
The effective judgment of the court held that the focus of the dispute in this case was whether the administrative penalty decision involved in the case was legal and appropriate.
Articles 38 and 42 of the Regulations on the Supervision and Administration of Cosmetics clearly stipulate the circumstances and corresponding responsibilities of business operators that are not for the purpose of sales, and the Market Supervision Bureau believes that XX Photography Department provides customers with free makeup services and uses cosmetics, which is a market entity that shall perform the obligations of business operators as stipulated in Article 42, and this court also recognizes this.
The Regulations on the Supervision and Administration of Cosmetics were amended on the basis of the Regulations on the Hygiene Supervision of Cosmetics and came into force on January 1, 2021. It is the original intention and proper meaning of the Regulations on the Supervision and Administration of Cosmetics to manage the production, operation and use of cosmetics in accordance with the law, to ensure that cosmetics have rules to follow and traces to follow in the process of production and circulation, and to clarify responsibilities and punish illegal acts according to law. But at the same time, the meaning of the law is not in punishment, but in correct guidance. The illegal act in this case occurred shortly after the implementation of the Regulations on the Supervision and Administration of Cosmetics, and although the regulations clearly stipulate the punishment circumstances, there are punishment circumstances that should be noted and considered in this case. First, the scope of application has been increased after the revision of the regulations, and the photography department belongs to the market entity provided for in Article 42 and is the management object included after the revision of the regulations. Second, "establishing and implementing a system of purchase inspection records" is a newly established obligation in the regulations. The vitality of the law lies in its implementation, and the implementation of the law is reflected in the observance, enforcement and application of the law. For the implementation of the new regulations, the subject of management should be allowed to have a process of knowing the law and actively complying with it, and during this period, the administrative law enforcement agency can prudently tolerate supervision. The clauses involved in the case are not provisions that can be understood based on common sense, and according to the evidence in the case, XX Photography Department was also not aware of the new regulations, and the court of first instance had criticized and educated them during the trial. The third is that the photography department of XX is an individual industrial and commercial household registered in April 2020, and the market supervision bureau found that there are two varieties of cosmetics placed in its store, the quantity has not been recorded, and the use has not been confirmed. In summary, there were certain special factors in the illegal acts in this case, and the court of first instance held that the provisions of the Administrative Punishment Law that punishment may not be imposed should be applied, and ruled to revoke the administrative punishment decision of the administrative law enforcement agency, which is in line with the principle of combining punishment and education in administrative punishment. In summary, the appeal was rejected and the original judgment was upheld.
Summary of the trial
1. When hearing administrative punishment cases, people's courts shall pay attention to distinguishing between the perpetrator's subjective intent, the number of acts, unlawful gains, and whether there is a statement of remorse, and may not give administrative punishment or give a warning, reprimand, or other minor punishment consistent with the circumstances of the violation for the first minor violation of the law where the subjective malice is small, the unlawful gains are small, and can be promptly corrected.
2. Administrative organs making administrative punishment decisions should implement the concept of "people-oriented", and should be prudently screened and handled in accordance with the provisions of the relevant departmental laws, as well as the relevant provisions of the Administrative Punishment Law on the combination of punishment and education, the principle of proportionality of punishment, and the mitigation, commutation, and exemption of punishment.
Associate indexes
Articles 31, 38 and 42 of the Regulations on the Supervision and Administration of Cosmetics
Articles 4, 5 and 27 of the Administrative Punishment Law of the People's Republic of China (2017).
Articles 70 and 89 of the Administrative Litigation Law of the People's Republic of China
First instance: Administrative Judgment of Hanshan County People's Court of Anhui Province (2021) Anhui 0521 Xingchu No. 15 (September 27, 2021)
Second instance: Administrative Judgment of the Intermediate People's Court of Ma'anshan City, Anhui Province (2021) Anhui 05 Xingzhong No. 168 (December 24, 2021)