The Administrative Enforcement Law of the PRC was released by the Standing Committee of the People’s Congress on June 30, 2011 and will take effect from January 1, 2012.
The Administrative Enforcement Law of the PRC (the “Law”) introduces compulsory enforcement, its types and measures, as well as administrative enforcement procedures, which bodies may act as the executors of administrative measures and their legal liabilities.
The compulsory measures shall be executed either by the administration authorities or by the people’s court—per application of administration institution that does not have compulsory enforcement authority.
There are a few points on the Law to which we would like to comment:
Firstly, the Law stipulates the powers that may enact administrative enforcement measures. With the exception of the following authorities, all the administrative enforcement measures should be enacted by way of law.
(1) The State Council is authorized to enact administrative enforcement measures, but may not enact measures that limit personal freedom or freeze deposits and remittance if such measures have not been enacted by law or do not fall under the obligations of the State Council;
(2) For local matters that have not been enacted by laws or administrative regulations, the administrative enforcement measures other than the sealing up or distraining the properties, premises or facilities can be enacted by local laws and regulations.
Secondly, the Law introduced a principle of appropriateness by saying that compulsory enactment and execution shall be appropriate and no enforcement measures shall be enacted and executed where non-compulsory enforcement can achieve administrative directives.
Regarding this point, however, as indicated by some legal professors, the principle of appropriateness does not represent the entire “Proportion Principle” within the administration law in that the wording “no severer measures shall be taken where a lighter measure can be resorted to” which aims to minimize the damages was not finally adopted in the Law.
Nevertheless, the Law provides regulations for the administration authorities to enforce administrative compulsory measures, which will curb the abuse of administrative powers. While empowering the administrative enforcement of administration authorities, the Law also provides protection of the rights of citizens and entities.
It clearly states that civilians and entities are entitled to make statements and defense, to apply for administrative reconsideration, and to take legal proceedings against the administrative authorities, as well as to ask for compensation where damages are incurred during administrative enforcement.
Regarding advance relief, it is stipulated that before enforcement measures may be taken, an advanced warning in writing shall be served to the client advising that the client is entitled to make statements and defense while urging the client to perform the liabilities.
Furthermore, some provisions in the Law also reflect some humanistic care. For example, it provides that the administrative enforcement cannot be carried out in the nights and legal vocations except in emergencies. The administrative authorities cannot coerce citizens to perform administrative decisions by ways of stopping supply of water, electricity, heating or gas of civil use.