Article 2 of the Administrative Penalty Law divides the parties to penalties into three categories: citizens (corresponding to "natural persons" in the Civil Code), legal persons and other organizations (unincorporated organizations). The term "unit" is used hereafter to refer to legal persons and other organizations.
The illegal acts discussed in this article and the determination of the parties are limited to the scope of administrative violations, and the determination of liability for criminal violations and civil disputes is otherwise stipulated.
Articles 30 and 31 of the Administrative Punishment Law specifically stipulate that these two groups of people may be exempted from administrative punishments, or be given lighter or mitigated punishments, and at the same time require guardians to strengthen supervision. In practice, it is true that minors help make money during holidays (mostly seen in itinerant vendors), and there are also "licensed" persons with disabilities who are involved in the case.
In particular, minors between the ages of 14 and 18 often have the "courage" to take responsibility for violations of the law for their parents or other elders, cooperate with investigations and accept punishments. In view of the fact that the results of administrative punishments in most areas must be uploaded to the government affairs big data system, for their political future, law enforcement officials should handle such cases with caution.
The determination of who is a qualified party between the employer and the employee in an employment relationship where an employee violates the law shall be determined based on the employee's working status at the time of the violation.
If an employee violates the law at the request of the employer or within the scope of his duties, the employer is a qualified party, and the employee is not. If an employee's conduct outside the scope of his or her duties results in a violation of the law, the employee is a qualified party and the employer is not.
Case: Zhang San is an employee of Li Si Fresh Supermarket and has been responsible for it for a long time, and one day Zhang San destroyed the green belt on the grounds that the municipal green belt outside the door was inconvenient for customers to enter and exit. Although Zhang San is the perpetrator of the sabotage, it is an act of duty, and the qualified party to bear the legal consequences is Li Si Fresh Supermarket.
If, for his own convenience, Zhang San parks his personal vehicle in the municipal green belt during working hours, resulting in the destruction of the green belt, the qualified party should be Zhang San himself.
The contractor can be a natural person or an entity. Such parties are considered to be similar to an employment relationship.
If the contractor commits illegal acts in the name of the employer during the contract period, the employer shall be a qualified party. Where the contractor commits illegal acts outside the scope of the contract, the contractor shall be the qualified party.
In exceptional circumstances, the employer and the contractor will agree in the contract that the employer shall bear the responsibility for some illegal acts that should be borne by the employer. At this time, the evidence should be comprehensively studied and judged, and the qualified parties should be determined in accordance with the statutory requirements.
For example, many local regulations stipulate that the person responsible for the prevention and control of dust on the construction site should be the construction unit. Some construction units outsource the work of taking dust prevention and control measures to other construction units for various considerations, and the contract stipulates that the construction unit only undertakes the work of dust prevention and control measures, and does not undertake the actual construction work, and this kind of contracting is a responsibility transfer type contract. In this case, the qualified party shall be identified as the actual construction unit, not the implementation unit of the dust prevention and control measures.
In accordance with Article 45 of the Construction Law, the construction enterprise shall be responsible for the safety of the construction site. The general contractor shall be responsible for the implementation of general construction contracting. The subcontractor shall be responsible to the general contractor and obey the general contractor's safety production management on the construction site.
Most of the qualified parties in such cases are the general contractor, and whether the subcontractor is liable should investigate whether the subcontractor obeys the general contractor's safety production management, and determine the qualified party after fixing the evidence.
In particular, the comprehensive administrative law enforcement agencies in some areas are relatively independent, and their professional ability to determine the liability for violations in the construction field is not as good as that of the housing and urban-rural development departments.
In addition, some formalities are illegal acts, such as "not applying for xx permits or xx behaviors beyond the scope of the permit", the statutory formalities (owners) orally or contractually stipulate that the formalities are entrusted to the construction unit to be handled in the name of the owner, but they are not actually handled or exceed the scope of the permit after handling, and the illegal consequences brought about by this shall be borne by the statutory formalities.
The person carries out a legal act in the name of the person being the person within the scope of his authority, and the legal consequences of the act shall be borne by the person being the person being the recipient. However, if the person exceeds the scope of authority entrusted by the person to carry out the illegal act, in the absence of the person being recognized, the person who violated the law shall be found to be the person who is **, but not the person who is being recognized; If both the person and the person being entrusted know that the act of entrustment violates legal norms, as long as the person carries out the act of entrustment, it shall be a joint violation of the law by the person being entrusted by the person and the person being entrusted.
In the field of administrative law enforcement, the identification of such parties is relatively rare, and generally appears in a relationship that is superficially ** but is actually a partnership. For example, Zhang San and Li Si opened a store in partnership, but have not yet obtained a business license, and in the process of preparing for the business, Zhang San rarely showed up or did not show up, nor did he declare the partnership, and only entrusted Li Si in writing to contact the law enforcement agencies to deal with it. At this time, attention should be paid to the issue of ** rights and joint violations, and specific cases should be analyzed on a case-by-case basis. The question of how to determine the parties in a partnership can be found in item (6) below.
The second paragraph of Article 15 of the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China (Fa Shi 2018 No. 1) stipulates that: "Where an individually-owned business files a lawsuit with the people's court, the operator registered on the business license shall be the plaintiff. where there is a trade name, the trade name registered on the business license is the plaintiff, and the basic information of the business operator shall be indicated. ”
According to the above provisions, for individual industrial and commercial households with a trade name, such as "Zhangsan Fruit Supermarket", the format of transcribing the parties in the law enforcement documents is:
Zhang San Fruit Supermarket (operator: Zhang San).
If there is no trade name, the business operator registered on the business license shall be the party.
The special situation is that the business license is inconsistent with the actual operator.
Article 24 of the Regulations on the Administration of Registration of Market Entities stipulates that an individually-owned business shall apply to the registration authority for modification of registration within 30 days from the date of making a resolution or decision on the change or the occurrence of the statutory change. Article 38 of the Detailed Rules for the Implementation of the Regulations on the Administration of Registration of Market Entities stipulates that if an individually-owned business changes its business operator, it shall, after completing the cancellation of registration, the new business operator apply for a new registration. In production activities, the unauthorized transfer of the management right of individual industrial and commercial households is invalid.
In practice, there have been cases in which the relationship between the certified operator and the actual operator has not been ascertained, the law enforcement agency has directly judged that the actual operator is the party, and the actual operator has objected at the enforcement stage, resulting in the loss of the lawsuit.
Therefore, for individual industrial and commercial households, if the operator on the certificate is inconsistent with the actual operator, the operator on the certificate should generally be the party. If the operator of the certificate refuses to show up or is inconvenient to show up (living in a foreign country for a long time, is old or has a physical disability), or there is evidence to prove that the operator of the certificate has disappeared or died, the law enforcement agency shall collect evidence from multiple sources, such as circumstantial evidence of surrounding neighbors, witnesses of village (neighborhood) committee staff, self-admission of the actual operator, and other evidence, to comprehensively determine the actual operator, so as to determine the qualified party.
Individual partnership refers to two or more natural persons who provide funds, goods, technology, etc., in accordance with the agreement, to operate in partnership and work together. An individual partnership is a special form of natural person. Individual partnerships may be registered in accordance with the law, and may engage in business within the scope of business for registration.
According to the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China, when an individual partnership is the target of punishment, it should be divided into the following two situations: first, if the business license has not been registered and obtained in accordance with the law, all partners shall be the joint penalized persons; Second, where a business license has been obtained through registration and the business name is used, the business name approved for registration shall be used as the person to be punished in the law enforcement documents.
When determining the partnership relationship, if there is a written partnership agreement, the parties shall be determined by agreement; If there is no written partnership agreement and it is not registered, the parties need to be determined after ascertaining the partnership. If it is not possible to ascertain the circumstances of the partners after exhausting all means, it is advisable to take the actual actor as the qualified party after fulfilling the obligation to inform (including the suspected partner).
A sole proprietorship is different from a one-person company. A one-person company is a legal person organization that bears the consequences of violating the law in the name of a legal person, and if there are no special circumstances (the personality of the legal person and the investor are mixed), it bears the consequences of the violation to the extent of the amount of investment.
A sole proprietorship enterprise is an unincorporated organization, and an unincorporated organization does not have legal personality, but can engage in civil activities in its own name in accordance with the law, and its liability is similar to that of an individual industrial and commercial household, but there are differences.
When a sole proprietorship enterprise that has registered and obtained a business license in accordance with the law commits illegal acts, it shall designate the enterprise as the entity responsible for the violation, and cannot directly designate its investors as the target of administrative punishment.
However, according to Article 104 of the Civil Code, if the assets of an unincorporated organization are insufficient to pay off its debts, its investor or founder shall bear unlimited liability. In the enforcement stage of administrative punishment, when the sole proprietorship cannot bear responsibility, the investor should be the person subject to enforcement.
If a branch of a legal person engages in illegal activities, if the branch is established in accordance with the law and has obtained a business license, it is a legally established organization that has a certain organizational structure and property, but does not have the status of a legal person. When a branch office commits illegal acts, the branch shall be designated as a party. When a branch refuses to perform or is unable to perform on an administrative penalty decision during the enforcement phase, a legal person is to be added as the person subject to enforcement.
If the branch office has not obtained a business license, the establishment of a legal person shall be the party.
Article 67 of the Civil Code.
Where a legal person is merged, its rights and obligations are enjoyed and borne by the merged legal person.
Where a legal person is divided, its rights and obligations shall be jointly and severally obligated by the legal person after the division, and joint and several debts shall be borne by the legal person, unless otherwise agreed upon by the creditor and the debtor.
Therefore, regardless of whether the legal person has already been divided at the time of discovery of the illegal act, or whether the legal person has not been separated at the time of discovery but a decision is made, the legal person after the division shall bear joint and several liability, and if there is an agreement, the agreement shall prevail. Law enforcement officers need to sort out the evidence materials of the separation process and file them.
In the event of a merger of legal persons, the combined legal person shall be liable.
According to the Reply of the Supreme People's Court on How to Determine the Civil Litigation Status of an Enterprise Legal Person after Its Business License is Revoked (Fa Jing 2000 No. 24 Letter), "the revocation of the business license of an enterprise legal person is an administrative penalty imposed by the administrative authority for industry and commerce on an enterprise legal person who violates the law in accordance with the national industrial and commercial administrative regulations. After the business license of an enterprise legal person is revoked, it shall be liquidated in accordance with law, and after the liquidation procedures are completed and the industrial and commercial deregistration is completed, the enterprise legal person shall be extinguished. Therefore, after the revocation of the business license of the enterprise legal person and before the cancellation of registration, the enterprise legal person should still be deemed to exist and may conduct litigation activities in its own name. "Therefore, if the business license is revoked, the party to the administrative punishment shall still be determined in accordance with the name of the institution registered in the business license.
Where the process of deregistration, bankruptcy liquidation, reorganization, or revocation has not yet been completed at the time of discovery of illegal acts, the unit is still a qualified party. If the process has not been completed when the decision is made, the creditors shall be added in a timely manner. If the cancellation or revocation process has been completed when the decision is made, the investor's property shall be enforced and recovered in accordance with the provisions of the Partnership Enterprise Law, the Sole Proprietorship Enterprise Law, the Bankruptcy Law, the Company Law (2024) and relevant judicial interpretations.
It can be discussed in two situations.
One is the administrative penalty for demolition without fines, such as illegal construction, illegally established advertising facilities, etc. Although the buyer (owner) is not the perpetrator of the illegal act, the current user and actual manager, and the illegal act of owning and managing the illegal building and advertising facilities is in a continuing state. It can be considered that it has "violated the order of administrative management", and the law enforcement agency may use it as the counterpart of the administrative punishment and order it to dismantle within a time limit, and the penalty decision is limited to ordering the demolition and not imposing a fine, so as to comply with the principle of proportionality of administrative punishment.
The other is the administrative penalty of demolition attached to the fine, such as violating the property management regulations, occupying the common part of the property, or using the illegally established advertising facilities and benefiting from the buyer (owner), should be ordered to make corrections, and if the correction is not made within the time limit, a fine may be imposed at the same time or directly in accordance with the law.
The double penalty system refers to the legal liability system that gives administrative penalties to the unit and relevant responsible members at the same time for the administrative violations of the unit. At present, many laws and regulations in China have provisions on the double penalty system. The designation of "directly responsible manager" generally refers to the person in charge who plays a role in deciding, approving, organizing, planning, directing, instructing, or conniving at the unit's illegal conduct, including the actual controller, principal responsible person, or authorized responsible person in charge, senior management personnel, and so forth. The determination of "other directly responsible personnel" generally refers to persons who, under the command and instruction of the directly responsible manager, actively participate in the implementation of the unit's illegal conduct, or play a relatively large role in the specific implementing unit's illegal conduct, or play a larger role in the specific implementing unit's illegal conduct.