Time limit requirements and precautions in market regulation and law enforcement
According to article 3 of the "Provisions on Administrative Punishment Procedures for Market Regulation", the market regulation departments shall follow the principles of fairness and openness in carrying out administrative punishments, persist in combining punishment and education, and ensure that the facts are clear, the evidence is conclusive, the basis for application is correct, the procedures are lawful, and the punishment is appropriate. In practice, procedural violations are a common reason for the revocation of administrative punishments, and procedural legitimacy is mostly reflected in the various time limit requirements in administrative punishment procedures, and it is easier for law enforcement personnel to ignore these principled requirements when handling cases, so we summarize them here for your reference.
1. Time limit requirements in administrative punishment procedures
1.Time limit requirements for filing a case.
Article 18 of the Provisions on Administrative Punishment Procedures for Market Regulation ...It shall be verified within 15 working days from the date on which leads are discovered or materials are received, and the responsible person for the market regulation department is to decide whether to file a case....
It is not necessary to complete the entire investigation before the case is filed, and the inquiry investigation should be carried out after the case is filed).
2.Time limit requirements for the examination and approval of administrative compulsory measures (such as sealing and seizure).
Article 36 of the Provisions on Administrative Punishment Procedures for Market Supervision and AdministrationWhere the situation is urgent and it is necessary to employ administrative compulsory measures on the spot, the case-handling personnel shall report to the responsible person for the market regulation department within 24 hours, and complete the approval formalities....
It should be noted that the date of approval of the compulsory measure must be the day of implementation).
3.Time limit for sealing or seizure.
Article 38 of the Provisions on Administrative Punishment Procedures for Market Regulation and Administration shall not exceed 30 days for sealing or seizure;Where the situation is complicated, it may be extended upon approval of the responsible person for the market regulation department, but the extension period must not exceed 30 days. Except as otherwise provided by laws and administrative regulations.
It should be noted that:1Sealing and seizure need to be approved, and the extension of sealing and seizure also needs to be approved, and the implementation decision needs to be served on the parties, and the extension procedures need to be completed before the expiration of the compulsory measures2.The decision to lift the seal or seizure also needs to be approved and served on the parties, and must be completed before the expiration of the time limit).
4.The time limit for administrative punishment notification to accept statements and defenses.
Article 57 of the Provisions on Administrative Punishment Procedures for Market Regulation and AdministrationWhere a party fails to exercise its right to make a statement or defense, or to request a hearing, within 5 working days from the date of service of the notice, it shall be deemed to have waived this right.
It should be noted that five business days does not include the day of delivery).
5.Time limit requirements for making administrative punishment decisions.
Article 64 of the Provisions on Administrative Punishment Procedures for Market Regulation: A disposition decision shall be made within 90 days of the date on which the case is filed, where the ordinary procedures are applied. Where due to the complexity of the case or other reasons, it is not possible to make a disposition decision within the prescribed time period, it may be extended for 30 days upon approval of the responsible person for the market regulation department. Where the circumstances of the case are particularly complicated or there are other special circumstances, and a disposition decision cannot be made after an extension, the responsible person for the market regulation department shall collectively discuss whether to continue the extension, and where a decision is made to continue the extension, a reasonable period of extension shall be determined at the same time.
It should be noted that:1If the case involves compulsory measures such as sealing and seizure, it is necessary to take into account the time limit requirements for compulsory measures;2.According to the above provisions, ordinary procedure cases may be extended twice, the first time by 30 days, and the second time limit shall be decided upon through collective discussion;）
6.Time limit for service of administrative punishment decision.
Article 81 of the "Provisions on Administrative Punishment Procedures for Market Regulation" The departments for market regulation shall deliver the administrative punishment decision to the parties on the spot after the announcement is made. Where the parties are not present, the administrative punishment decision shall be sent to the parties within 7 working days in accordance with the provisions of articles 82 and 83 of these Provisions.
It should be noted that it is recommended that each administrative law enforcement case sign a confirmation of service address, and when direct service is difficult, electronic service can be adopted to ensure that the service procedures are in place).
7.Penalty payment time limit requirements.
Article 72 of the Provisions on Administrative Punishment Procedures for Market Regulation: Where the market regulation department imposes an administrative penalty of a fine or confiscation of unlawful gains on a party, the party shall pay the fine and confiscation through a designated bank or electronic payment system within 15 days of receiving the administrative punishment decision
It should be noted that if the party does have financial difficulties to apply for an extension or installment, it must be approved and a written notice shall be served, and the time limit for extending the installment shall not exceed 2 years).
8.Administrative Reconsideration Time Limit for Litigation Remedies.
Where they are not satisfied with the administrative punishment decision, the parties may demand and apply for a time limit for compulsory enforcement from the date of receipt of the punishment decision.
Article 76 of the Provisions on Administrative Punishment Procedures for Market Regulation: Where parties do not apply for administrative reconsideration or initiate an administrative lawsuit within the statutory time limit, and do not perform on the administrative punishment decision, and still do not perform on the administrative punishment decision within 10 working days of receiving the reminder, the market regulation departments may apply to the people's court for compulsory enforcement within three months of the expiration of the time limit.
It should be noted that:1The demand may be issued at the earliest 15 days after the decision is served;2.The reminder shall state the amount of the additional fine;3.After 10 working days, you can apply for administrative compulsory enforcement, and the enforcement needs to be approved, and the time limit for processing is only three months4.The time limit for applying for administrative reconsideration is 60 days, and the time limit for filing a lawsuit with the court is six months. ）
9.Time limit for case closure.
Article 77 of the "Provisions on Administrative Punishment Procedures for Market Regulation" In any of the following circumstances, the case-handling body shall complete a case closure approval form within 15 working days, and close the case after approval by the responsible person for the market regulation department: (1) The enforcement of the administrative punishment decision is completed;(2) The people's court rules to terminate enforcement;
3) The investigation of the case is terminated;(4) Making a decision in items 2 through 5 of the first paragraph of Article 60 of these Provisions;(5) Other circumstances where the case should be closed.
It should be noted that, according to the view of the book "Frequently Asked Questions on Administrative Law Enforcement of Market Supervision and Administration", whether the confiscated items have been disposed of is not a prerequisite for closing the case. The author agrees with this view, and the confiscation of the items made in the penalty decision has legal effect, and whether or not it is disposed of has no direct relationship with whether the case can be concluded).
2. Time limit requirements for other legal documents
1.The time limit for rectification of the notice of correction is required.
If there is no definite time limit requirement, order immediate correction or rectification within a time limit, and the time limit for rectification is recommended to be 15 days, which is reasonable.
2.Time limit requirements for the notification of the deadline for the provision of materials.
Where there is no clear time limit requirement, it is recommended that "3 days, 5 days, or 7 days" be appropriate in light of the time limit for case handling.
According to article 45 of the "Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China", the people's court generally does not accept evidence provided by the defendant if the defendant has evidence to prove that it requested the plaintiff or a third party to provide evidence in accordance with the statutory procedures in the administrative procedure, and the plaintiff or the third party should have provided it in accordance with the law but failed to provide it, and the evidence provided in the litigation sequence is generally not accepted by the people's court.
This document plays an important role in practice (such as the determination of non-purchase and false publicity), and it is recommended to carry it as a standing document in law enforcement.
3.Inquiry notice time limit requirements.
In the preparation of this instrument, the parties may be required to provide the required evidentiary materials together with the document, and there is no need to make a separate notice of the deadline for providing materials;In order to prevent the loss of evidence, it is advisable to conduct an inquiry within three days.
4.Time limit for assistance in investigation letters.
Article 45 of the "Provisions on Administrative Punishment Procedures for Market Regulation" When handling administrative punishment cases, the departments for market regulation truly need the assistance of relevant organs or other departments for market regulation in the investigation and collection of evidence, they shall issue a letter of assistance in the investigation.
The market regulation department that receives a letter of assistance in the investigation shall provide assistance in matters within the scope of its authority, and complete the relevant work within 15 working days of receiving the letter of assistance in the investigation. Where it is necessary to extend the completion of the investigation, the market regulation department that submitted the request for assistance shall be notified before the time limit is completed.
It should be noted that if you do not receive a reply within 15 working days after the letter of assistance in the investigation is issued, it is recommended to call the receiving department to inquire) Liu Min.