Interim Measures of Tianjin Municipality for Accountability for Irregularities in Administrative Law Enforcement

Decree of Tianjin Municipal People’s Government

No. 105

The Interim Measures of Tianjin Municipality for Accountability for Irregularities in Administrative Law Enforcement was adopted at the 75th Executive Meeting of the Municipal People’s Government on 24 July 2006 and is hereby promulgated. These Measures shall go into effect as from 1 September 2006

Dai Xianglong, Mayor

5 August 2006

Interim Measures of Tianjin Municipality for Accountability for Irregularities in Administrative Law Enforcement

Article 1 These Measures are enacted in accordance with relevant laws and regulations and with the actual situation of this Municipality with the purpose of standardizing and supervising the administrative law enforcement institution and its functionaries in performing their law enforcement duties accordint to the law, and protecting the legitimate rights and interests of citizens, legal persons and other organizations.

Article 2 These Measures apply to administrative law enforcement institutions, the organizations legally empowered or entrusted (hereinafter referred to as “the enforcement institution”) and their functionaries at all levels of this Municipality that perform, in violation of laws, regulations and stipulations, irregularities in administrative acts or administrative inactivity (hereinafter referred to as “administrative irregularities”) that endanger the legitimate rights and interests of citizens, legal persons and other organizations and public interests and are accountable for irregularities in administrative law enforcement.

Where it is otherwise stated in laws, regulations and stipulations these laws, regulations and stipulations shall prevail.

Article 3 The principles of “every irregularity to be accounted for, integration of education with punishment, and punishment matching responsibility” shall be stuck to in assigning accountability for administrative irregularities.

Article 4 The administrative law enforcement institution and its functionaries that commit any of the following acts shall be held accountable for administrative irregularities:

(1) The main facts are not clearly verified and evidence inadequate;

(2) Obvious mistakes being made in applying laws, regulations and stipulations;

(3) Violating statutory procedures;

(4) Overreaching or abusing statutory powers and duties;

(5) Failing to perform statutory duties and responsibilities; and

(6) Other irregularities.

Article 5 Where it is verified by the following State institutions that the administrative organ and its functionaries have performed irregularities in administrative law enforcement, they shall be held accountable for the irregularities:

(1) Irregularities in administrative law enforcement discovered and confirmed by people’s congresses at all levels and their standing committees during the process of supervision;

(2) Irregularities in administrative law enforcement that the people’s court passes a final verdict and rules out to make revocation, alteration, and confirmation, or irregularities in administrative law enforcement for which the party concerned is ordered to perform statutory duties and responsibilities;

(3) Irregularities in administrative law enforcement that the administrative review institution decides to make revocation, alteration, and confirmation, or irregularities in administrative law enforcement for which the party concerned is ordered to perform statutory duties and responsibilities; and

(4) Irregularities in administrative law enforcement discovered and confirmed by people’s governments and law enforcement institutions at all levels in handling accusations or complaints by citizens, legal persons and other organizations concerning administrative law enforcement or in the inspection, assessment or examination of administrative law enforcement.

The administrative organ that has been confirmed as committing irregularities in administrative law enforcement shall, within five workdays as from the date of the receipt of the verdict, ruling or decision, file the photocopies of the verdict, ruling and decision at the legislative affairs institutions of the same level and the legislative affairs institution of the administrative organ of the next higher level on the record. Where the direct leadership is in place, it shall file the verdict, ruling and decision at the legislative affairs institution of the administrative organ of the next higher level on the record.

Article 6 The administrative law enforcement institution that commits an administrative act that violates the law independently shall bear responsibility for such an act.

Where two or more law enforcement institutions commit an administrative act that violates the law jointly, the institution that plays a major role shall bear major responsibility and the other institutions shall bear corresponding responsibilities proportionate to their respective roles.

Where an administrative law enforcement institution, acting on the decision, approval or instruction, commits an administrative act that violates the law, the administrative department that has made the decision, approval or instruction shall bear responsibility for such an act.

Article 7 The undertaker that finds himself in any of the following situations shall bear responsibility for irregularities in administrative acts:

(1) Committing irregularities in administrative law enforcement independently;

(2) Committing irregularities in administrative law enforcement without going through legal procedures of examination, approval and authorization;

(3)_Concealing facts, hiding evidences or providing untruthful accounts of the situation, which result in the examiner and approver making a wrong decision;

(4) Committing irregularities in administrative law enforcement by altering without authorization the contents that have been examined and approved;

(5) Committing serious mistakes that result in grave consequences in the process of administrative law enforcement; and

(6) Refusing to perform the legal duties and responsibilities without due reasons.

Article 8 The examiner that without the undertaker’s application or the approver’s approval directly commits an administrative act that violates the law shall bear the responsibility for irregularity of administrative law enforcement.

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

(1) Changing the correct idea of the undertaker or the examiner; and

(2) Making a decision without the application of the undertaker and the examination by the examiner that results in the occurrence of an irregularity in administrative law enforcement;

Article 10 Where the undertaker makes a wrong suggestion for handling an application that the examiner and the approver should find that it is wrong but fail to do so or do not correct it when they find out and that leads to the occurrence of irregularity in administrative law enforcement, the undertaker, examiner and the approver shall bear responsibility proportionately for such irregularities.

The examiner refuses to accept or changes the correct idea of the undertaker and obtains the approval of the approver and that leads to the occurrence of irregularities in administrative law enforcement, the examiner, approver shall bear corresponding responsibility for such irregularities.

Article 11 Where two or more persons commit an administrative act that violates the law, the person that plays a major role shall bear the major responsibility and the others shall bear minor responsibility for the irregularities in the administrative law enforcement. Where it is impossible to distinguish between major and minor responsibilities they shall jointly bear the responsibility for irregularities in administrative law enforcement.

Article 12 Where an irregularity in administrative law enforcement occurs following a collective discussion, the leading person shall bear the major responsibility for such irregularity.

Article 13 Where an irregularity occurs due to failure to perform statutory duties and responsibilities, the person directly in charge, the person in concrete charge and the chief leading official shall be held accountable in accordance with their office and responsibility in the said irregularity in administrative law enforcement.

Article 14 The methods for assigning accountability for irregularities in administrative law enforcement are as follows:

(1) Ordering the person concerned to make a written self-criticism;

(2) Asking the person concerned to make corrections within a definite period of time;

(3) Talking with the person concerned as a way of warning and encouragement;

(4) Criticizing the person concerned by name in a circular;

(5) Detaining temporarily or revoking the certificate for administrative law enforcement;

(6) Assigning the person concerned to receive off-the-duty training;

(7) Depriving the person concerned of the right to be cited as an model worker for the current year;

(8) Removing the person concerned from the law enforcement office;

(9) Terminating the employment contract;

(10) Asking the person concerned to pay part or entirety of the administrative compensation; and

(11) Serving the person concerned an administrative sanction.

The responsibilities for irregularities mentioned in the forgoing items may apply singly or multiply.

Article 15 The administrative law enforcement institution shall be held accountable for irregularities in administrative law enforcement as decided by the people’s government or the monitoring institution of the same level in accordance with the statutory duties and responsibilities of each institution. Where the institution concerned is placed under direct leadership, the institution or the monitoring institution of the next higher level shall hold it responsible according to the law. Where an institution is placed under dual leadership, the accountability shall be decided according to the regulations concerning the administrative duties.

The accountability of an administrative law enforcement institution shall serve as a basis for the annual assessment of this institution.

Article 16 The administrative law enforcement functionary shall be held accountable by the institution he belongs to depending on his violation of the statutory duties in administrative law enforcement according to the law. Where measure shall be taken against him according to law and organizational discipline, he shall be dealt with in accordance with the authority of official administration and legal procedures. Where he is held accountable for administrative and disciplinary duties, the appointment and removal institution or the monitoring institution shall serve him an administrative sanction according to the law. Where the case is so serious as to constitute a crime, he shall be transferred to the judicial institution.

Where compensation shall be made in accordance with the Compensation Law of the People’s Republic of China, the administrative organ for law enforcement shall ask the law enforcement functionary that has committed irregularity to pay the compensation.

The functionary’s accountability for irregularities in administrative law enforcement shall serve as the basis for his evaluation, award, punishment, appointment and removal, and the administrative sanction, among others, shall be entered into his file on the record.

Article 17 The legislative affairs organ of the Municipal People’s Government is in charge of the guidance, coordination and monitoring of the accountability for irregularities in administrative law enforcement of the whole city. The organ is entitled to investigate irregularity cases that cause grave consequences or difficulties and may also appoint the relevant department to conduct an investigation, make a suggestion on the issue and report it to the government of the same level for a decision.

The legislative affairs organs of the district and county people’s governments and the Municipal law enforcement institution are in charge of the guidance, coordination and monitoring of the accountability for irregularities in administrative law enforcement of their respective administrative areas or departments. They shall investigate irregularity cases in administrative law enforcement accepted by the people’s government of the same level and by the same department, make suggestions and report it to the people’s government of the same level and same department for a decision. They shall take charge of the investigation of the cases concerning law enforcement designated by the institutions of the next higher level.

Where accountability for irregularities in administrative law enforcement involve the appointment and removal institution and monitoring institution, the appointment and removal institution and monitoring institution shall, in accordance with State and Municipal regulations, statutory powers and procedures, handle the case within the definite period of time.

The auditing, finance and other related departments shall assist and cooperate in the investigation of accountability for irregularities in administrative law enforcement.

Article 18 The number of functionaries that investigate the responsibility for irregularity in administrative law enforcement shall be not less than two and they shall show identification documents in investigation. The investigators may read and copy related documents at the relevant administrative law enforcement institutions and question the persons concerned. The institution and persons under investigation shall give a truthful account of the situation and may not interfere with and obstruct the investigation. The investigators shall make a written record of their investigation.

The investigator that has a direct interest in the case under investigation shall ask for withdrawal.

Article 19 Where disputes arise as to the jurisdiction of the accountability of irregularity of administrative law enforcement between the district and county people’s governments on the one hand and the attached department of the Municipal People’s Government on the other, the case shall be reported to the Municipal People’s Government for decision.

Where accountability for irregularities in administrative law enforcement has two or more legal bases, the institution investing accountability for irregularities in administrative law enforcement shall choose the appropriate one. However, the same irregularity in administrative law enforcement shall not be accounted repeatedly.

Article 20 Where the functionary of administrative law enforcement refuses to accept the responsibility for irregularity in administrative law enforcement, the said functionary may apply for a review or lodge an appeal at the relevant department according to the law.

During the period of time when the review or appeal is in process, the execution of the decision on the accountability for irregularity in administrative law enforcement shall not stop except for cases where the review and appeal institutions deem it necessary to stop execution.

Article 21 Where the administrative organ for law enforcement and its functionaries are found in any of the following situations, they shall be criticized by the name in a circular. Where the case is serious, he shall be served an administrative sanction. Where the case is so serious as to constitute a crime the offender shall be investigated for criminal responsibilities according to the law.

(1) The institution of administrative law enforcement does not hold the person accountable for irregularity in administrative law enforcement where it should do so;

(2) Failure to submit the verdict, ruling and decision where it or he should do so or does so belatedly, which results in adversely affecting the investigation of accountability for irregularities in administrative law enforcement;

(3) Interfering with, obstructing or being uncooperative in investigation of responsibility for irregularities in administrative law enforcement;

(4) Attacking or retaliating the accuser, complainer or investigator of administrative law enforcement;

(5) Refusing to correct irregularities; and

(6) Refusing to carry out the decision on accountability for irregularity in administrative law enforcement.

Article 22 Where the appointment and removal institution, monitoring institution and legislative affairs institution are found in anyone of the following situations, the party concerned shall be criticized by the name in a circular. Where the case is serious, the party concerned shall be served an administrative sanction. Where the case is so serious as to constitute a crime, the offender shall be investigated for criminal responsibilities according to the law:

(1) Deliberately concealing an irregularity or failing to investigate, or to hold the responsible person accountable for an irregularity when finding one;

(2) Deliberately increasing or lessening the responsibility of a person that should be held responsible; and

(3) Not transferring a person to the judicial institution for investigating his criminal responsibilities when it should do so.

Article 23 The term “undertaker” as mentioned in these Measures refers to the functionary undertaking a concrete job in administrative law enforcement. The term “examiner” refers to the responsible person of an inner organ within an administrative law enforcement institution. The term “approver” refers to the leading person in an administrative law enforcement institution. Where a person other than those mentioned above exercises the powers of examination and approval in accordance with division of labour within an institution or is so empowered he shall be regarded as the examiner or approver.

Article 24 These Measures shall go into effects as from 1 September 2006.