Administrative Compulsion Law of the People's Republic of China

Administrative Compulsion Law of the People's Republic of China compulsionOrder of the President of the People's Republic of China (No. 49) The Administrative Compulsion Law of the People's Republic of China, as adopted at the 21st meeting of the Standing Committee of the 11th National People's Congress of the People's Republic of China on June 30, 2011, is hereby promulgated and shall come into force on January 1, 2012. Hu Jintao, President of the People's Republic of China June 30, 2011 Administrative Compulsion Law of the People's Republic of China (Adopted at the 21st meeting of the Standing Committee of the 11th National People's Congress on June 30, 2011) Contents Chapter I General Principles Chapter II Types and Setting of Administrative Compulsion Chapter III Procedures for the Implementation of Administrative Compulsory Measures Section 1 General Provisions Section 2 Seizure and Impoundment Section 3 Freezing Chapter IV Procedures for Enforcement by Administrative Organs Section 1 General Provisions Section 2 Enforcement of Pecuniary Payment Obligations Section 3 Performance on Behalf of the Party Concerned Chapter V Application to the People's Court for Enforcement Chapter VI Legal Liability Chapter VII Supplementary Provisions Chapter I General Principles Article 1 This Law is formulated in accordance with the Constitution for the purposes of regulating the setting and implementation of administrative compulsion, guaranteeing and supervising administrative organs' performance of duties according to law, maintaining public interests and social order and protecting the legitimate rights and interests of citizens, legal persons and other organizations. Article 2 The term “administrative compulsion” as mentioned in this Law shall include administrativecompulsory measures and administrative enforcement. Administrativecompulsory measures refer to the temporary restriction of the personal freedom of citizens or temporary control of the property of citizens, legal persons or other organizations according to law by administrative organs in the process of administration for such purposes as stopping illegal acts, preventing destruction of evidence, avoiding damage and containing expansion of danger. Administrative enforcement refers to the performance of obligations as legally enforced by administrative organs or by the people's courts upon applications of administrative organs against citizens, legal persons or other organizations which do not perform administrative decisions. Article 3 This Law shall apply to the setting and implementation of administrative compulsion. In case of occurrence or impending occurrence of any natural disaster, accidental disaster, public health incident, social security incident or other emergency, the emergency response measures or temporary measures taken by administrative organs shall be governed by the relevant laws and administrative regulations. The prudential supervision measures for the financial sector and the mandatory technical monitoring measures for imported and exported goods taken by administrative organs shall be governed by the relevant laws and administrative regulations. Article 4 Administrativecompulsion shall be set and implemented according to the statutory authority, extent, conditions and procedures. Article 5 The setting and implementation of administrativecompulsion shall be appropriate. If the purposes of administration may be achieved by non-compulsory means, no administrativecompulsion shall be set or implemented. Article 6 The implementation of administrativecompulsion shall adhere to the combination of education and compulsion. Article 7 Administrative organs and their staff members shall not seek benefits for entities or individuals by taking advantage of administrativecompulsory powers. Article 8 A citizen, a legal person or any other organization shall be entitled to make statements or arguments against administrativecompulsion implemented by an administrative organ, be entitled to apply for administrative reconsideration or lodge an administrative lawsuit according to law, and be entitled to compensation for damage suffered from an administrative organ's illegal administrative compulsion. A citizen, a legal person or any other organization which has suffered damage from any illegal act of or expansion of extent of enforcement by the people's court in the process of enforcement shall be entitled to compensation according to law. Chapter II Types and Setting of Administrative Compulsion Article 9 Types of administrativecompulsory measures: (1) Restricting the personal freedom of a citizen; (2) Seizing premises, facilities or properties; (3) Impounding properties; (4) Freezing deposits or remittances; and (5) Other administrativecompulsory measures. Article 10 Administrativecompulsory measures shall be set by law. For matters which are not included in any law and are subject to the administrative authority of the State Council, administrativecompulsory measures other than those as prescribed in Article 9 (1) and (4) of this Law and those as must be set by law may be set by administrative regulation. For matters which are not included in any law or administrative regulation and are local affairs, administrativecompulsory measures as prescribed in Article 9 (2) and (3) of this Law may be set by local regulation. No regulatory documents other than laws and regulations may set administrativecompulsory measures. Article 11 Where a law has provided for the objects, conditions for adoption and types of administrativecompulsory measures, no administrative or local regulation shall provide beyond the extent thereof. Where no administrativecompulsory measures are set in a law, no administrativecompulsory measures shall be set by administrative or local regulation. However, if a law provides that the specific administrative measures for certain matters shall be provided for by administrative regulation, the administrative regulation may set administrativecompulsory measures other than those as prescribed in Article 9 (1) and (4) of this Law and those that must be set by law. Article 12 Manners of administrative enforcement: (1) Fines or late fees; (2) Transfer of deposits or remittances; (3) Auction or legal disposition of premises, facilities or properties that are seized or impounded; (4) Removal of obstructions or restitution; (5) Performance on behalf of the party concerned; and (6) Other manners of enforcement. Article 13 Administrative enforcement shall be set by law. Where enforcement by administrative organs is not provided for by law, the administrative organ making the relevant administrative decision shall apply to the people's court for enforcement. Article 14 In drafting a law or regulation, if administrativecompulsion is to be set, the drafting entity shall hear opinions in such forms as a hearing and a demonstration meeting, and explain the necessity of such administrative compulsion, the possible impacts and the solicitation and adoption of opinions to the organ making the law or regulation. Article 15 The organ setting administrativecompulsion shall regularly review the administrativecompulsion set by it, and timely amend or abolish any inappropriate administrative compulsion. The organ implementing administrativecompulsion may review the implementation of the set administrativecompulsion and the necessity of existence thereof in good time, and report its opinion to the organ setting such administrative compulsion. Citizens, legal persons and other organizations may submit opinions and suggestions on the setting and implementation of administrativecompulsion to the organs setting or implementing administrative compulsion. The relevant organs shall conduct research and demonstration in earnest, and give feedback in proper manners. Chapter III Procedures for the Implementation of AdministrativeCompulsory Measures Section 1 General Provisions Article 16 Administrative organs shall, in performing their administrative functions, implement administrativecompulsory measures in accordance with laws and regulations. For illegal acts with obviously minor circumstances or without obvious harm to the society, administrative organs may decide not to take administrativecompulsory measures. Article 17 Administrativecompulsory measures shall be implemented by administrative organs prescribed by laws and regulations within their statutory authority. The power to implement administrativecompulsory measures shall not be delegated. Administrative organs which exercise relatively centralized powers of administrative punishment in accordance with the Law of the People's Republic of China on Administrative Punishment may implement administrativecompulsory measures related to their powers of administrative punishment as prescribed by laws and regulations. Administrativecompulsory measures shall be implemented by the qualified law enforcement personnel of administrative organs only. Article 18 In implementing administrativecompulsory measures, an administrative organ shall comply with the following provisions: (1) Before implementation, a report on implementation shall be submitted to the person in charge of the administrative organ and an approval of implementation shall be obtained. (2) An administrativecompulsory measure shall be implemented by two or more law enforcement personnel of the administrative organ. (3) Law enforcement identity certificates shall be produced. (4) The party concerned shall be notified to be present. (5) The party concerned shall be notified on the spot of the reasons and basis for taking the administrativecompulsory measure and the rights of and remedies available to the party concerned according to law. (6) The statements and arguments of the party concerned shall be heard. (7) On-site transcripts shall be made. (8) The on-site transcripts shall be singed or sealed by the party concerned and the law enforcement personnel of the administrative organ, and if the party concerned refuses to do so, it shall be noted in the transcripts. (9) If the party concerned is not present, witnesses shall be invited to be present, and the witnesses and the law enforcement personnel of the administrative organ shall sign or seal the on-site transcripts. (10) Other procedures as prescribed by laws and regulations. Article 19 If any administrativecompulsory measure is implemented on the spot as needed in case of emergency, the law enforcement personnel of an administrative organ shall report it to the person in charge of the administrative organ and go through the approval formalities within 24 hours. If the person in charge of the administrative organ deems it improper to take the administrativecompulsory measure, the measure shall be lifted immediately. Article 20 In implementing administrativecompulsory measures which restrict the personal freedom of citizens according to law, in addition to the procedures in Article 18 of this Law, an administrative organ shall comply with the following provisions: (1) The law enforcement personnel of the administrative organ shall notify the family of the party concerned of the administrative organ implementing the administrativecompulsory measure and the location and term thereof, on the spot or immediately after implementing the administrativecompulsory measure. (2) If the administrativecompulsory measure is implemented on the spot in case of emergency, the law enforcement personnel of the administrative organ shall report it to the person in charge of the administrative organ and go through the approval formalities immediately after returning to the administrative organ. (3) Other procedures as prescribed by law. Administrativecompulsory measures which restrict personal freedom shall not be implemented beyond the statutory term. If the purposes of implementing such an administrativecompulsory measure have been achieved or the conditions for implementing it have disappeared, the administrativecompulsory measure shall be lifted immediately. Article 21 If an illegal act may constitute a crime and shall be transferred to the judicial organ, the administrative organ shall transfer the seized, impounded or frozen properties along with it, and inform the party concerned in writing. Section 2 Seizure and Impoundment Article 22 Seizure and impoundment shall be implemented by administrative organs as prescribed by laws and regulations, and no other administrative organs or organizations may implement them. Artic......