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Decision on the Amendment of the Interim Measures of Tianjin Municipality for Fixing Responsibility for Irregularities in Administrative Law Enforcement

新闻日期: 2015-06-25    文章来源:

The People’s Government of Tianjin Municipality


Decree No.8


 


    The Decision on the Amendment of the Interim Measures of Tianjin Municipality for Fixing Responsibility for Irregularities in Administrative Law Enforcement was approved at the 35th Meeting of the Municipal People’s Government on August 1, 2014 and is hereby promulgated. These Measures shall go into effect as of the date of promulgation.


 


Mayor Huang Xingguo


Tianjin Municipal Government


August 12, 2014


 


Decision on the Amendment of the Interim Measures of Tianjin Municipality for Fixing Responsibility for Irregularities in Administrative Law Enforcement


 


The Municipal Government decided to make the following amendments to the Interim Measures of Tianjin Municipality for Fixing Responsibility for Irregularities in Administrative Law Enforcement (Decree No. 105, 2006 of Tianjin Municipal People’s Government)


1.       The title is changed as: “Measures of Tianjin Municipality for Fixing Responsibility for Irregularities in Administrative Law Enforcement”


2.       In Article 2, the wording “endangering the legitimate rights and interests of citizenry, legal persons and other organizations” is changed to “ violating the legitimate rights and interests of citizenry, legal persons and other organizations and endangering social public interest.”


3.       A new Item is added to Paragraph 1 of Article 5, as Item 3, which reads” people’s procuratorate decides not to prosecute but shall transfer irregularities in administrative law enforcement to the competent department for proper handling administratively.” The series number of the other items in this Article shall be adjusted accordingly.


4.       Paragraph 1 of Article 6 is changed to read “ The administrative law enforcement department that commits irregularities in administrative law enforcement independently shall bear the responsibility of irregularity in law enforcement by itself.”


5.       Item 9 of Paragraph 1 of Article 14 is changed to read: “Blame-taking resignation, be fired or employment contract be terminated.”


6.       A new Paragraph is added to Article 16, as Paragraph 2, which reads: “ The administrative law enforcement officials that has committed acts against law or discipline shall be given sanctions if they deserve it, depending on the seriousness of their violations of law and discipline after they are fired, relieved of position or resign from the leading position. The administrative law enforcement officials that has subjected to criminal penalty shall be expelled.”


Paragraph 3 of Article 16 is changed to read as follows: “Where compensation is due to be paid in accordance with the State Compensation Law of the People’s Republic of China, the administrative department shall ask for recovery from the law enforcement functionary responsible for the irregularities in accordance with law.”


7 The wording in Paragraph 1 of Article 17 “ It is entitled to investigate illegal cases that exert major impact on society or are complicated or difficult, or it may designate a related department to investigate and make a suggestion concerning the handling of the case and report to the people’s government of the same level for decision” is changed to read as follows: “It may arrange or coordinate related departments to verify the facts and make a suggestion concerning the handling of the illegal cases that cause huge social impact or are complicated and report to the people’s government of the same level for decision ”


The wording in Paragraph 2 of Article 17 “ It shall investigate the irregularity case handled by the people’s government of the same level or by the same department, make a suggestion of handling and report it to the people’s government of the same level or the same department for decision, and is in charge of investigating irregularity cases in law enforcement designated by higher authorities.” is changed to read as follows: “It shall verify the facts in the irregularity case handled by the people’s government of the same level or by the same department, make a suggestion of handling and report it to the people’s government of the same level or the same department for decision, and is in charge of verifying the progress in handling the irregularities of law enforcement cases assigned by higher organs.”


The word “monetary affairs” in Paragraph 4 of Article 17 is changed to read “finance”.


8. The wording in Article 21 “Where the case is serious, one shall subject to disciplinary sanction” is changed to read as follows: Where one violates administrative discipline, one shall be given sanction in accordance with relevant provisions.”


9. The wording in Article 22 “Where the case is serious, one shall subject to disciplinary sanction” is changed to read as follows: Where one violates administrative discipline, one shall be given sanction in accordance with relevant provisions.”


10. The wording “administrative sanction” in Article 14 and Article 16 is changed to read as follows: “sanction.”


This Decision shall go into effect as of the date of promulgation.


Appropriate amendments shall be made to the Interim Measures of Tianjin Municipality for Fixing Responsibilities in Administrative Law Enforcement Irregularities in accordance with this Decision and be re-promulgated.


Measures of Tianjin Municipality for Fixing Responsibilities for Irregularities in Administrative Law Enforcement


(Promulgated by the Tianjin Municipal Government on August 5, 2006 and is amended in accordance with The Decision on the Amendment of Interim Measures of Tianjin Municipality for Fixing Responsibilities for Irregularities in Administrative Law Enforcement on August 12, 2014.)


 


Article 1  These Measures are enacted in accordance with the provisions of relevant laws and regulations and in light of the actual conditions of this Municipality with the purpose of regulating and supervising the administrative law enforcement department and its law enforcement functionaries in fulfilling the duties and responsibilities of administrative law enforcement in accordance with law, protecting the legitimate rights and interests of citizenry, legal person or other organizations.


Article 2  These Measures shall apply to the irregularities in concrete administrative acts or in administrative non-action (hereinafter referred to collectively as irregularities) by the administrative law enforcement department or empowered or entrusted agencies in accordance with law and their law enforcement functionaries (hereinafter referred to collectively as administrative organization for law enforcement), to the infringements by the administrative law enforcement department on the legitimate rights and interests of the citizenry, legal person or other organizations and endangering social public interests by the administrative law enforcement department and responsibilities shall be fixed on them for administrative law enforcement irregularities.


Where it is otherwise prescribed in laws, regulations and rules concerning the fixing of responsibilities for irregularities in administrative law enforcement, these laws, regulations and rules shall prevail.


Article 3  In fixing responsibility for irregularities in administrative law enforcement, the principle of punishment without exception combined with education and punishment, as well as punishment and responsibility shall be adhered to.


Article 4  Where the administrative law enforcement department or any of its law enforcement functionaries commits any of the following acts, responsibility shall be fixed for the irregularity in administrative law enforcement.


1.       Major facts are not clearly verified or evidence is insufficient;


2.       Obvious mistakes are found in applying laws, regulation and rules;


3.       Legal procedure is violated;


4.       Go beyond or abuse statutory responsibility or duty; and


5.       Failure to perform statutory duties and responsibilities; and


6.       Other irregularities


Article 5  Where any administrative department or any of its law enforcement functionaries commits irregularities confirmed by the following state agencys in administrative law enforcement, Investigation shall be made for fixing responsibilities.


1.       Irregularities in administrative law enforcement are found and confirmed under the supervision of people’s congress of all levels and its standing committee;


2.       Irregularities in administrative law enforcement revoked, altered or confirmed by the people’s court in its final verdict or irregularities in administrative law enforcement by anyone that is ordered to perform legal responsibilities;


3.       Irregularities in administrative law enforcement that the people’s procuratorate decides not to prosecute but shall be transferred to the relevant competent department to be handled administratively;


4.       Irregularities in administrative law enforcement that the administrative review department decides to revoke, alter or confirm; or irregularities in administrative law enforcement by anyone that is ordered to perform legal responsibilities; and


5.       Irregularities in administrative law enforcement found and confirmed by the people’s governments at all levels and administrative law enforcement department in handling complaints, accusations by citizenry, legal person or other organizations or in the process of administrative law enforcement inspection, evaluation or check-up.


The administrative department confirmed of committing irregularities shall, five workdays from the receipt of the verdict, ruling, or decision, submit a copy of the verdict, ruling, or decision to the legal agency of the people’s government of the same level and the legal agency of the competent administrative department for filing; where direct leadership is in place, the administrative department shall submit the verdict, ruling or decision to the legal agency of the leading department of the next higher level.


Article 6  Where an irregularity is committed by the administrative department independently, it shall bear the responsibility for that irregularity in administrative law enforcement.


Where two or more administrative law enforcement departments commit an irregularity jointly, the competent department shall bear primary responsibility and the other departments shall bear proper share of responsibility.


Where an administrative department commits an irregularity in administrative law enforcement while implementing the decision, official reply, and directives of its higher administrative department, the responsibility for the irregularity in administrative law enforcement shall be fixed on the higher administrative department that has made such decision, official reply or directive.


Article 7  The undertaker shall bear the responsibility of irregularity in administrative law enforcement when one of the following situations occurs:


1.       Committing irregularity in administrative law enforcement while independently exercising the law enforcement rights;


2.       Committing irregularity in administrative law enforcement without authorization, not to go through the legal procedure of examination, verification and approval;


3.       Concealing facts, hiding evidence or providing untruthfulness that leads examiner, verifier or certifier to make wrong decisions;


4.       Committing irregularity by changing contents of the examination, verification and approval without authorization;


5.       Committing major mistakes in the process of administrative law enforcement that leads to serious consequences; and


6.       Refusing to carry out statutory duties and responsibilities without justified reasons.


Article 8  The certifier that independently commits irregularities without the plan of the undertaker or without the approval of certifier shall bear the responsibility for the irregularities in administrative law enforcement.


Article 9  The certifier that finds himself in one of the following situations shall bear the responsibility for irregularities in administrative law enforcement:


1.       The certifier changes the correct comments of the undertaker or verifier;


2.       The certifier directly makes a decision without the plan of the undertaker and the verification of the verifier that leads to the occurrence of irregularities in administrative law enforcement.


Article 10  Where the verifier and certifier should but fail to detect the wrong plan of the undertaker, or fail to rectify it when they detects the wrong plan, which leads to irregularities in administrative law enforcement, the undertaker, verifier and  certifier shall bear their due responsibility for irregularities in administrative law enforcement respectively.


The verifier refuses to accept or change the correct comments of the undertaker and wins the approval of the certifier, which leads to the occurrence of irregularities in administrative law enforcement, the verifier and certifier shall bear due responsibility for irregularities in administrative law enforcement respectively.


Article 11  Where an irregularity in administrative law enforcement is committed by two or more persons jointly, the chief undertaker shall bear the primary responsibility and the other minor undertakers bear minor responsibility. Where it is impossible to distinguish between chief and minor responsibilities, the responsibilities shall be equally shared by all.


Article 12  Where an irregularity in administrative law enforcement is committed by executing a decision made through collective discussion, the chief responsible person shall bear the responsibility for the irregularity in administrative law enforcement.


Article 13  Where an irregularity in administrative law enforcement occurs due to the non-fulfillment of statutory duties and responsibilities, the responsibility for the irregularity in administrative law enforcement shall be fixed on the chief responsible person, the responsible persons directly in charge and other major responsible persons, depending on their position and duties.


Article 14  The ways to fix responsibility for irregularities in administrative law enforcement include:


1.       The responsible person is ordered to make a written self-criticism;


2.       To make corrections before a deadline;


3.       Talking to the responsible person as a form of warning and encouragement;


4.       Circulating a notice of criticism;


5.       Detaining temporarily or revoking the law enforcement certificate;


6.       Leaving the position to taking a training course;


7.       Depriving the right to be elected as model worker for the year;


8.       Removing the person from the post of law enforcement;


9.       Resigning by citing mistakes, be fired or terminating the hiring contract;


10.   Recovering in accordance with law part or all of the administrative compensation cost; and


11.   Imposing a sanction;


The responsibilities prescribed in the preceding paragraph for irregularities in administrative law enforcement may be applied in an independent or combined way.


Article 15  The fixing of responsibility for administrative law enforcement irregularities shall be carried out in accordance with law, by the people’s government of the same level or the supervisory department depending on the seriousness of the offense. Where a system where direct leadership is in place, the fixing of responsibility for administrative law enforcement irregularities shall be carried out by the department of the next higher level or the supervisory department. Where a department is under the administration of double leadership by the government and the trade organization, the fixing of responsibility for irregularities shall be carried out in accordance with the regulations concerning the duties and responsibilities of administration.


For an administrative law enforcement department, its responsibilities for law enforcement irregularities shall be taken as a key reference in the annual evaluation of the department’s performance.


Article 16  Where any functionary of administrative law enforcement department commits irregularity in one’s performance of duty in law enforcement, the unit one belongs to shall fix responsibility on him/her depending on the seriousness of the offense. Where an organizational measure shall be taken against one that violates discipline or law, one shall be dealt with in accordance within the authority of officials administration and the prescribed procedure; where one shall bear administrative responsibilities, one shall be dealt with in accordance with administrative discipline, and the appointment and firing department or supervisory department shall give one sanctions in accordance with law; where the offence constitutes a crime one shall be transferred to the judicial department for handling.


Where any functionary of the administrative department that commits irregularities have already been dealt with by means of criminal punishment, removal from office or duty, resignation of office before a sanction is meted out and one deserves a sanction, the administrative department shall give him/her a sanction depending on the facts of irregularities in accordance with law. The administrative law enforcement functionary that is given criminal punishment shall be fired.


Where compensation is due according to the Compensation Law of the People’s Republic of China, the administrative law enforcement department shall recover the compensation money from the functionary that commits administrative irregularities.


The investigation into the responsibility of malfeasance shall be taken as a reference for the functionary when comes to their examination, punishment and award, promotion and demotion and the decision concerning sanctions shall be filed into their personal archive.


    Article 17  The legal agency under the Municipal People’s Government shall be in charge of guidance, coordination, supervision of the work of fixing responsibility on citywide administrative law enforcement irregularities; it may, in the case of the irregularities that have major impact on society or that are very complicated, arrange for or coordinate relevant departments in verifying the facts, make comments on settlement and report the case to the people’s government of the same level for decision.


The legal department under district and county people’s government and the legal agency under the Municipal level administrative law enforcement department shall be in charge of the guidance, coordination and supervision of the work of fixing responsibility over administrative law enforcement irregularities of the same region or department; It is also in charge of verifying the facts in the administrative law enforcement irregularities accepted and handled by the people’s government of the same level and by the same department and make a suggestion for handling the case and report it to the people’s government of the same level and the same department for decision; it is in charge of verifying the facts in cases designated by the next higher level.


Where the case involving the appointment and dismiss department and supervisory department regarding fixation of responsibilities for administrative law enforcement irregularities, the appointment and dismiss department or supervisory department shall, in accordance with state and Municipal regulations, handle the case within its statutory authorities and procedure in prescribed time.


The auditing, finance and other related departments shall assist and cooperate with the department in its work of fixing responsibilities for irregularities for administrative law enforcement.


Article 18  At least two inspectors shall be appointed to investigate administrative law enforcement irregularities and they shall show their ID during the investigation. The inspector may access and copy relevant files from administrative law enforcement department, make inquiries to related persons. The department and its employees shall provide truthful information and may not interfere with or disrupt the investigation. The inspectors shall make a written record of the investigation.


The inspector that has direct interest with the case under investigation shall withdraw from the inspection team.


Article 19  The affiliated departments under the Municipal, District and County people’s government that have dispute over the right of jurisdiction for fixing responsibility over administrative law enforcement irregularities shall report the case to the Municipal People’s Government for a decision.


Where two or more legal criteria exist for fixing responsibility for administrative law enforcement irregularities, the department responsible for fixing responsibility of administrative law enforcement irregularities shall have the right to choose from among them. However, the responsibility for the same irregularity shall be fixed only once.


Article 20  The administrative law enforcement functionary that refuses to bear the responsibility for administrative law enforcement irregularity, may apply to the relevant department for review and make appeals in accordance with law.


During the period of review and appeal, the implementation of the decision made by the law enforcement department regarding the responsibility for administrative law enforcement irregularity may not cease except in a case where the review and appeal department deems it is necessary to stop the implementation.


Article 21  The administrative law enforcement department or any of its functionaries finds oneself in any one of following situations, one shall be criticized by a circular; where administrative discipline is violated, one shall be given sanction according to the relevant regulations; where the case is serious enough to constitute a crime, one shall be investigated for criminal responsibilities:


1.       The administrative law enforcement department fails to fix responsibility on its functionary where it should do so;


2.       The administrative law enforcement department fails to file the verdict, ruling or decision for record that should be filed on time or do so at a delayed time, which affect the fixing of responsibility for administrative law enforcement irregularities;


3.       Interfering with, disrupting or not cooperating the related department in investigating the responsibility for irregularities;


4.       Retaliating against, or revenging inspectors or the person that accuses, complains against administrative law enforcement irregularities;


5.       Refusing to correct administrative law enforcement irregularities; and


6.       Refusing to implement the decision on fixing the responsibility for administrative law enforcement irregularities.


Article 22  The department for appointing or firing officials, supervisory department and legal department that finds itself in one of the following situations, it shall be criticized by a circular; where it violates administrative discipline it shall be given sanctions in accordance with relevant regulations; where the case is serious enough to constitute a crime it shall be investigated for criminal responsibilities.


1.       Deliberately concealing irregularities or failing to investigate when an irregularity is discovered;


2.       Deliberately increasing or lightening the responsibility of the person held responsible; and


3.       Failing to transfer a case that deserves criminal investigation when it is required to do so in accordance with law.


Article 23  The term undertaker mentioned in these Measures refers to the functionaries that undertakes the day-to-day work of administrative law enforcement; the term examiner  mentioned in these Measures refers to the chief responsible person of an inner agency in the administrative department; the term certifier mentioned in these Measures refers to the chief responsible person. The person that exercises the right of actual examination and approval in accordance with the inner-office division of labor or so empowered shall be regarded as the examiner and certifier even though others also exercises the right of examination and approval.


Article 24  These Measures shall go into effect as of September 1, 2006.


 


 


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