Perspective | A Brief Discussion on the Enforcement of Increased Fines by the People's Court
Published:
2025-01-07
In administrative penalties imposed by administrative agencies that involve monetary payment obligations, there is usually a notification stating: "If payment is not made by the due date, an additional penalty of 3% of the fine amount will be imposed daily." In judicial practice, different administrative agencies, based on the same laws, have made varying regulations regarding whether a separate decision for additional fines is necessary and what procedures should be followed to impose such additional fines. Furthermore, people's courts in various regions have also issued different judicial rulings on the enforcement applications for additional fines from administrative agencies. Therefore, the author believes it is necessary to sort out and analyze the legal application of additional fines to provide some reference for non-litigious administrative enforcement.
Abstract:In administrative penalty decisions made by administrative agencies that have monetary payment obligations, there will always be the following notice: "If the payment is not made by the due date, an additional penalty of 3% of the fine amount will be imposed daily." In judicial practice, different administrative agencies, based on the same law, have made different regulations regarding whether a separate decision on additional penalties is required and what procedures should be followed to make such decisions. People's courts in various regions have also made different judicial rulings on the enforcement applications for additional penalties from administrative agencies. Therefore, the author believes it is necessary to sort out and analyze the legal application of additional penalties to provide some reference for non-litigation administrative enforcement.
Keywords:Administrative Penalty Administrative Compulsion Additional Penalty
Almost every driver has received a "Public Security Traffic Management Simple Procedure Penalty Decision", which not only states the driver's illegal behavior, the basis for the penalty, and the penalty measures, but also informs that "if the fine is not paid on time, an additional penalty of 3% of the fine amount will be imposed daily." If the driver fails to pay the fine on time, the administrative agency must apply to the court for enforcement according to the law. Different courts will have different methods for executing additional penalties. The following will sort out and analyze the nature of additional penalties, execution procedures, and other aspects.
I. The Nature of Additional Penalties
(1) The Origin of "Additional Penalties"
Article 51 of the "Administrative Penalty Law" implemented in 1996 states, "If the party fails to perform the administrative penalty decision within the time limit, the administrative agency that made the administrative penalty decision may take the following measures: (1) If the fine is not paid by the due date, an additional penalty of 3% of the fine amount will be imposed daily; ..." This was the first time that "additional penalties" were proposed in Chinese law. Article 12 of the "Administrative Compulsion Law" implemented in 2012 states, "Methods of administrative enforcement: (1) Additional penalties or late fees; ..." Article 45 states, "If the administrative agency makes an administrative decision with monetary payment obligations according to the law, and the party fails to perform it within the time limit, the administrative agency may impose additional penalties or late fees according to the law. The standards for additional penalties or late fees should be notified to the parties. The amount of additional penalties or late fees must not exceed the amount of the monetary payment obligation."
It can be seen that additional penalties are a form of compulsory enforcement taken by administrative agencies when the administrative counterpart fails to perform the administrative decision made by the administrative agency that has monetary payment obligations. The purpose is to ensure that the administrative decision of the administrative agency can be performed in a timely manner.
(2) Additional Penalties are Different from Administrative Penalties
Although "additional penalties" first appeared in the "Administrative Penalty Law", according to the aforementioned provisions, additional penalties are a form of administrative enforcement, which is specified in Chapter 6 of the "Administrative Penalty Law" as "Execution of Administrative Penalties", and is not classified as a type of administrative penalty in Chapter 2, which is "Types and Establishment of Administrative Penalties". Therefore, additional penalties are a form of administrative execution penalty that can only be imposed after the administrative counterpart fails to perform the administrative penalty decision. It cannot be understood as a new administrative penalty decision based on the original administrative penalty just because it contains the word "penalty".
II. Several Handling Methods of Grassroots Courts in Jinan for Administrative Enforcement Applications
(1) Clearly State Approval for Execution of Additional Penalties
For example, the Administrative Ruling No. 20 (2021) of the Lixia District People's Court of Jinan clearly states in the main text, "Approval for the enforcement of the administrative penalty decision No. 0101 (2020) made by the Jinan Municipal Health Commission, which includes a fine of 10,000 RMB and an additional penalty of 10,000 RMB." This ruling lists the fine and the additional penalty separately and approves the execution.
(2) Does Not Clearly State Whether Additional Penalties are Approved for Execution
For example, the Administrative Ruling No. 130 (2016) of the Changqing District People's Court of Jinan only generally states in the main text, "Approval for the execution of the administrative penalty decision No. 094 (2014) made by the Jinan Changqing District Urban Management Administrative Law Enforcement Bureau," but does not clearly specify whether the "additional penalty of 3% of the fine amount per day" recorded in that penalty decision is approved for execution.
(3) Does Not Approve Additional Penalties for Execution
This type of ruling can be divided into two situations:
1. Not related to this case.
For example, the Administrative Ruling No. 13 (2020) of the Jiyang District People's Court of Jinan believes that "the administrative penalty decision No. 039 (2019) made by the applicant for enforcement is clear in fact, legal in procedure, and correct in law application. The respondent neither applied for reconsideration nor filed a lawsuit within the statutory period, and still failed to perform the obligation after being urged. The applicant's application for enforcement to this court complies with legal provisions. This case examines the legality of the administrative penalty decision No. 039 (2019) made by the applicant for enforcement. Additional penalties belong to execution penalties and are not within the scope of this case's ruling execution. According to Articles 53 and 58 of the "Administrative Compulsion Law of the People's Republic of China", the ruling is as follows: Approval for the enforcement of the administrative penalty decision No. 039 (2019) made by the Jinan Jiyang District Market Supervision Administration, and the applicant for enforcement shall apply to this court for compulsory execution." This ruling determines that additional penalties belong to execution penalties and therefore should not be applied for execution together with fines.
2. A separate penalty decision must be made.
For example, the Administrative Ruling No. 45 (2020) of the Shizhong District People's Court of Jinan believes that "the administrative penalty decision No. 26 (2019) made by the applicant for enforcement is now effective, and the decision is clear in fact, legal in procedure, and correct in basis, and should be approved for execution. According to Articles 53 and 57 of the "Administrative Compulsion Law of the People's Republic of China", the ruling is as follows: Approval for the enforcement of the administrative penalty decision No. 26 (2019) made by the Jinan Shizhong District Market Supervision Administration, which determines the confiscation of illegal income of 8.4 RMB and a fine of 5,000 RMB, with a total penalty amount of 5,008.4 RMB. Regarding the content of the additional penalty, the applicant for enforcement should make a separate penalty decision and then apply to this court for compulsory execution." Although this ruling believes that additional penalties should not be applied for execution together with fines, it still requires the administrative agency to make a "penalty decision" separately before applying for execution, which seems to confuse administrative penalties with administrative compulsion.
III. The Necessity of Making Separate Decisions on Additional Penalties
(1) There are Clear Legal Provisions
Article 45, Paragraph 1 of the "Administrative Compulsion Law" states, "If the administrative agency makes an administrative decision with monetary payment obligations according to the law, and the party fails to perform it within the time limit, the administrative agency may impose additional penalties or late fees according to the law."
(2) The decision to impose additional fines recorded in the "Administrative Penalty Decision" has not taken effect.
Article 155 of the Supreme People's Court's interpretation of the "Administrative Litigation Law of the People's Republic of China" states: "When an administrative agency applies for the enforcement of its administrative actions according to Article 97 of the Administrative Litigation Law, it must meet the following conditions: ... (2) The administrative action has taken effect and has enforceable content ..." The decision to impose additional fines recorded in the "Administrative Penalty Decision" is merely a proposed administrative action, and the relevant procedures have not been completed. The proposed decision to impose additional fines has not taken effect, nor is it certain when it will take effect; therefore, it cannot serve as the basis for applying for compulsory enforcement.
(3) Safeguarding the parties' right to make statements and defend themselves.
Article 30 of the "Administrative Coercion Law" states: "Before making a decision on compulsory enforcement, the administrative agency shall notify the parties in advance to fulfill their obligations. The notification shall be made in writing and shall specify the following matters: (1) The deadline for fulfilling the obligation; (2) The method of fulfilling the obligation; (3) If it involves monetary payment, there should be a clear amount and payment method; (4) The parties' rights to make statements and defend themselves as provided by law." Although the administrative agency will notify the parties to fulfill their obligations before applying for administrative compulsory enforcement, this is only a notification regarding the fine and not regarding the additional fine; therefore, it cannot safeguard the parties' rights to make statements and defend themselves.
(4) Safeguarding the parties' right to seek relief.
Article 37, paragraph 2 of the "Administrative Coercion Law" states: "The decision on compulsory enforcement shall be made in writing and shall specify the following matters: ... (4) The channels and deadlines for applying for administrative reconsideration or initiating administrative litigation ..." If the administrative agency does not separately make a decision to impose additional fines, the parties will not know how to apply for administrative reconsideration or initiate administrative litigation.
IV. The procedure for applying to the court for compulsory enforcement of additional fines.
(1) Written notification.
According to Article 35 of the "Administrative Coercion Law", before making an administrative coercive decision, the administrative agency shall notify the parties in writing to fulfill their obligations, informing them of the deadline and method for fulfilling their obligations, as well as the rights to make statements and defend themselves as provided by law.
(2) Listening to statements and defenses.
According to Article 36 of the "Administrative Coercion Law", the administrative agency shall fully listen to the opinions of the parties. If the facts, reasons, or evidence presented by the parties are valid, the administrative agency shall adopt them.
(3) Making an administrative coercive decision.
According to Article 36 of the "Administrative Coercion Law", if the parties fail to fulfill the administrative decision after being notified and have no justifiable reason, the administrative agency may make a written decision on compulsory enforcement, specifying the reasons, basis, methods, time, and the channels and deadlines for applying for administrative reconsideration or initiating administrative litigation.
(4) A second notification for fulfilling the decision on additional fines.
The decision to impose additional fines is a new, actionable specific administrative action; therefore, the administrative agency should notify the parties to fulfill their obligations before applying to the People's Court for compulsory enforcement, in accordance with Article 54 of the "Administrative Coercion Law".
(5) Applying to the court for compulsory enforcement.
According to Articles 46 and 53 of the "Administrative Coercion Law", an administrative agency without compulsory enforcement authority must apply to the People's Court for compulsory enforcement within six months, but not exceeding nine months from the date the decision to impose additional fines is served.
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Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
