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(Promulgated on June 27, 2005 by Decree No 41 of Shanghai
Municipal People' s Government)
The Municipal People' s Government has decided to make the following
amendments to the "Interim Procedures of Shanghai Municipality
on the
Relatively-Centralized Power of Administrative Punishment of the City
Administration" :
I. Article 3 is amended as: (Departments of Comprehensive
Coordination, Implementation and Cooperation)
Shanghai Municipal Construction
and Communications Commission is responsible for the comprehensive coordination
of the work of the
relatively-centralized power of administrative punishment of
the city administration, as well as for the drafting and formulation
of relevant
comprehensive policies.
Shanghai Municipal Administrative Law Enforcement
Bureau of City Administration (hereinafter referred to as the Municipal Law
Enforcement
Bureau of City Administration) is the administrative organ,
responsible for the work of relatively-centralized power of administrative
punishment of the city administration in the whole Municipality. Shanghai
Municipal Law Enforcement Head Brigade of City Administration,
an affiliation to
the Municipal Law Enforcement Bureau of City Administration, entrusted by the
latter, undertakes specific matters
related to the relatively-centralized power
of administrative punishment of the city administration.
The District /
County Comprehensive Law Enforcement Department of City Administration
(hereinafter referred to as the District /
County Law Enforcement Department of
City Administration) exercises the relatively-centralized power of
administrative punishment
in its administrative area according to the limits of
power provided in these Procedures, and accepts the professional guidance
and
supervision from the Municipal Law Enforcement Bureau of City
Administration.
The administrative departments of construction, city
appearance and sanitation, municipal engineering, greening, water affairs,
environmental protection and administration, public security, industry and
commerce, housing, land and resource, and planning at
all levels, shall
coordinate with the Municipal Law Enforcement Bureau of City Administration and
the District / County Law Enforcement
Department of City Administration in doing
well the work of relatively-centralized power of administrative punishment of
the city
administration.
II. Add one article as Article 5: (Limits of Power
and Division of Work for the Municipal and the District / County Law Enforcement
Departments of City Administration)
The Municipal Law Enforcement Bureau is
responsible for investigating and handling wrongful acts in the following
circumstances:
1 Having great influence in the whole Municipality;
2
Involving municipal-administered river courses;
3 Cases needing to be
rectified centralizedly;
4 Cases subject to the investigation and handling by
the municipal administrative organs as provided by laws, rules and
regulations.
The District / County Law Enforcement Department of City
Administration is responsible for investigating and handling wrongful acts
committed within its administrative area. Any dispute over function and power
between two or more district / country law enforcement
departments of city
administration in investigating and handling wrongful acts shall be settled by
the Municipal Law Enforcement
Bureau of City Administration. In case that any
District / County Law Enforcement Department of City Administration fails to
investigate
and handle the wrongful acts under its jurisdiction, the Municipal
Law Enforcement Bureau of City Administration may order it to
investigate and
handle the cases, and also may directly investigate and handle the wrongful acts
itself.
III. Article 6 is commuted to Article 7 and amended as:
The
Municipal and District / County Law Enforcement Departments of City
Administration shall exercise the power of administrative
punishment on the
wrongful acts that violate the administration of city appearance and
environmental sanitation according to the
provisions of laws, rules and
regulations governing the administration of city appearance and environmental
sanitation.
IV. Article 9 is commuted to Article 10 and amended as:
The
Municipal and District / County Law Enforcement Departments of City
Administration shall exercise the power of administrative
punishment on the
following wrongful acts that violate the administration of river courses in
accordance with the provisions of
laws, rules and regulations governing the
administration of water affairs:
1. Dumping of industrial, agricultural and
construction wastes, domestic garbage and excrement and urine;
2. Washing the
vehicles and containers that have stored oils or poisonous and harmful
pollutants;
3. Constructing buildings or structures like houses and sheds
without permission.
V. Article 10 is commuted to Article 11 and its Clause 2
and Clause 5 are respectively amended as:
2. The road transportation and
operation of stacking etc. that raise dusts and pollute the environment;
5.
The conduct of construction works at night without approval or not in compliance
with the requirements of approval that produces
noise pollution.
VI. Article
12 is commuted to Article 13 and amended as:
The Municipal and District /
County Law Enforcement Departments of City Administration shall exercise the
power of administrative
punishment on the wrongful acts of operating business
without license by occupying roads or illegally distributing and posting printed
advertisements according to the provisions of laws, rules and regulations
governing the administration of industry and commerce.
VII. Article 14 is
commuted to Article 15 and amended as:
The Municipal and District / County
Law Enforcement Departments of City Administration shall exercise the power of
administrative
punishment on the following wrongful acts in the area of the
property management according to the provisions of laws, rules and
regulations
governing the administration of real estate:
1. Constructing buildings and
structures like houses and sheds without permission in public green areas, on
roads or in other places;
2. Damaging the looks of buildings.
VIII.
Article 16 is commuted to Article 17 (Demolishing Illegal Buildings) and its
Clause 1 and Clause 4 are respectively amended
as:
In investigating and
handling the wrongful acts of constructing buildings and structures like houses
and sheds without permission
in accordance with provisions of these procedures,
the Municipal and District/county Law Enforcement Departments of City
Administration
shall take evidence of, and affirm the cases according to law,
and then make the decision of demolishing within a specified time
period.
In
case of the construction of buildings or structures like houses and sheds
without permission being under way, the Municipal and
District / County Law
Enforcement Departments of City Administration shall order the party concerned
to stop the construction immediately
and to demolish the construction within a
specified time limit. In case that the party concerned refuses to stop the
construction,
or refuses to demolish the construction within the specified time
limit, the Municipal and District / County Law Enforcement Departments
of City
Administration may demolish the construction for the party concerned or enforce
the demolition immediately. The party concerned
shall bear all the expenses
incurred in the demolition of the construction carried out on its behalf.
IX. Article 19 is commuted to Article 18 and is amended as:
In case that
in the activities of supervision and inspection, relevant administrative
departments find the suspected wrongful acts
that are subject to the
investigation and handling by the Municipal and District / County Law
Enforcement Departments of City Administration,
they shall transfer the cases to
the departments concerned for handling. In case that in the activities of
supervision and inspection,
the Municipal and District / County Law Enforcement
Departments of City Administration find the suspected wrongful acts that fall
outside the scope of their duty, they shall transfer the cases to the relevant
departments for handling.
The relevant departments and Municipal and the
District / County Law Enforcement Departments of City Administration shall not,
without
proper reasons, refuse to accept the cases transferred by the
transferring departments and shall inform the transferring departments
in time
after making the decision of the handling.
X. Article 21 is commuted to
Article 22 and amended as:
Anyone who refuses or interferes with the lawful
performance of official duty by the law enforcement personnel of city
administration,
but does not resort to the form of violence or threat, shall be
subject to punishment by the public security organ according to
the "Regulations
of the People' s Republic of China on Public Security Administration and
Imposition of Punishment" . If the use
of the form of violence or threat
constitutes a crime, the wrongdoer shall be prosecuted for criminal liabilities
as provided by
Law.
XI. Article 23 is commuted to Article 24 and amended
as:
The party concerned who does not accept the specific administrative acts
made by the Municipal Law Enforcement Bureau of City Administration
may,
according to the provisions of the "Law of the People' s Republic of China on
Administrative Reconsideration" , apply to the
Municipal People' s Government for
administrative reconsideration; or may, according to the provisions of
the "Administrative Litigation
Law of the People' s Republic of China" , bring a
lawsuit directly to the people' s court.
The party concerned who does not
accept the specific administrative acts made by the District / County Law
Enforcement Department
of City Administration may, according to the provisions
of the "Law of the People' s Republic of China on Administrative Reconsideration"
,
apply to the district / county people' s government or the Municipal Law
Enforcement Bureau of City Administration for administrative
reconsideration; or
may, according to the provisions of the "Administrative Litigation Law of the
People' s Republic of China"
, bring a lawsuit directly to the people' s court.
XII Other Amendments:
"The District / County City Administration
Brigade" in Article 4 is amended as "the Municipal Law Enforcement Bureau of City
Administration,
the District / County Law Enforcement Department of City
Administration (hereinafter referred to as the Municipal and the District
/
County Law Enforcement Departments of City Administration)" . "the District /
County City Administration Brigade" in Articles
5-23 are amended as "the Municipal
and District / County Law Enforcement Departments of City
Administration" .
"The district / county administrative organs" in Article 5 is
amended as "the municipal and the district / county administrative
organs" . "the
district / county people' s government" in Article 16, Clause 3 is amended as "the
municipal and district / county
people' s governments" . "the relevant district /
county administrative departments" in Article 20 is amended as "the relevant
municipal and district / county administrative departments" .
"Serious penalty
term" in Article 18 is amended as "relatively severe punishment term" .
"The
personnel of the city administration for supervision and inspection" in Article
22 is amended as "the Municipal and the District
/ County Law Enforcement
Departments of City Administration and their administrative law enforcement
personnel" .
In addition, the sequence of part of the words and articles in
the original Procedures shall be correspondingly adjusted on the basis
of the
present Decision.
The present Decision shall become effective on August 1,
2005. The "Interim Procedures of Shanghai Municipality on the
Relatively-Centralized
Power of Administrative Punishment of the City
Administration" shall be correspondingly amended and re-promulgated.
Interim Procedures of Shanghai Municipality on the Relatively-Centralized
Power of Administrative Punishment of the City Administration
(Promulgated on
January 5, 2004 by Degree No.17 of Shanghai Municipal People' s Government and
revised on June 27,2005 in accordance
with the "The Decision of Shanghai
Municipal People' s Government on the Amendment of the 'Interim Procedures of
Shanghai Municipality
on the Relatively-Centralized Power of Administrative
Punishment of the City Administration' " )
Article 1 (Purpose and Basis)
For the purpose of strengthening the city
administration and raising the efficiency of administrative law enforcement of
city administration,
these Procedures have been formulated in accordance with
the "Law of the People' s Republic of China on the Administrative Punishment"
,
the "Decision of the State Council on Further Promotion of the Work of
Relatively-Centralized Power of Administrative Punishment"
and the provisions of
relevant laws and regulations, and in the light of the actual circumstances in
this Municipality.
Article 2 (Application Scope)
These Procedures apply to
the exercise of the power of administrative punishment and its related powers of
administrative coercion
and administrative inspection (hereinafter referred to
as the power of administrative punishment) over the city administration in
the
administrative area of this Municipality.
Article 3 (Departments of
Comprehensive Coordination, Implementation and Cooperation)
Shanghai
Municipal Construction and Communications Commission is responsible for the
comprehensive coordination of the work of relatively-centralized
power of
administrative punishment of the city administration, as well as for the
drafting and formulation of relevant comprehensive
policies.
Shanghai
Municipal Administrative Law Enforcement Bureau of City Administration
(hereinafter referred to as the Municipal Law Enforcement
Bureau of City
Administration) is the administrative organ, responsible for the work of
exercising the relatively-centralized power
of administrative punishment of the
city administration in the whole Municipality. Shanghai Municipal Law
Enforcement Head Brigade
of City Administration, an affiliation to the Municipal
Law Enforcement Bureau of City Administration, entrusted by the latter,
undertakes specific matters related to the relatively-centralized power of
administrative punishment of the city administration.
The District / County
Comprehensive Law Enforcement Department of City Administration (hereinafter
referred to as the District /
County Law Enforcement Department of City
Administration) exercises the relatively-centralized power of administrative
punishment
in its administrative area according to the limits of power provided
in these Procedures, and accepts the professional guidance
and supervision from
the Municipal Law Enforcement Bureau of City Administration.
The
administrative departments of construction, city appearance and sanitation,
municipal engineering, greening, water affairs,
environmental protection and
administration, public security, industry and commerce, housing, land and
resource, and planning at
all levels, shall coordinate with the Municipal Law
Enforcement Bureau of City Administration and the District / County Law
Enforcement
Department of City Administration in doing well the work of
relatively-centralized power of administrative punishment of the city
administration.
Article 4 (Duties of the Law Enforcement Departments of City
Administration)
The Municipal Law Enforcement Bureau of City Administration
and the District / County Law Enforcement Department of City Administration
(hereinafter referred to as the Municipal and the District / County Law
Enforcement Departments of City Administration) shall perform
the following
duties:
1. To exercise the powers of administrative punishment that shall be
exercised by the municipal and the district / county administrative
organs
prescribed by laws, rules and regulations governing the administration of city
appearance and environmental sanitation and
by organizations authorized by laws
and rules.
2. To exercise the powers of administrative punishment that shall
be exercised by the municipal and the district / county administrative
organs
prescribed by laws, rules and regulations governing the administration of
municipal engineering, greening, water affairs,
environmental protection, public
security and traffic, industry and commerce, real estate, and city planning,
etc. and by organizations
authorized by laws and rules.
3. To exercise the
powers of administrative punishment in other fields prescribed by the Municipal
People' s Government.
Article 5 (Limits of Power and Division of Work for the
Municipal and the District / County Law Enforcement Departments of City
Administration)
The Municipal Law Enforcement Bureau is responsible for
investigating and handling wrongful acts in the following circumstances:
1.
Having great influence in the whole Municipality;
2. Involving
municipal-administered river courses;
3. Cases needing to be rectified
centralizedly;
4. Cases subject to the investigation and handling by the
municipal administrative organs as provided by laws, rules and
regulations.
The District / County Law Enforcement Department of City
Administration is responsible for investigating and handling wrongful acts
committed within its administrative area. Any dispute over function and power
between two or more district / country law enforcement
departments of city
administration in investigating and handling wrongful acts shall be settled by
the Municipal Law Enforcement
Bureau of City Administration. In case that any
District / County Law Enforcement Department of City Administration fails to
investigate
and handle the wrongful acts under its jurisdiction, the Municipal
Law Enforcement Bureau of City Administration may order it to
investigate and
handle the case, and also may directly investigate and handle the wrongful acts
itself.
Article 6 (Limit of Power of Other Law Enforcement Organs)
After
the relative centralization of the power of administrative punishment, the
relevant municipal and district/county administrative
organs and the
organizations authorized by laws and regulations shall no longer exercise the
power of administrative punishment
that is to be exercised by the Municipal and
the District/ County Law Enforcement Departments of City Administration in a
centralized
manner; if they still exercise such power, the decisions of
administrative punishment made by them shall have no effect.
Article 7
(Administration of the City Appearance and Environmental Sanitation)
The
Municipal and the District/ County Law Enforcement Departments of City
Administration shall exercise the power of administrative
punishment on the
wrongful acts that violate the administration of the city appearance and
environment sanitation according to
the provisions of laws, rules and
regulations governing the administration of city appearance and environmental
sanitation.
Article 8 (Administration of Municipal Engineering)
The
Municipal and the District/ County Law Enforcement Departments of City
Administration shall exercise the power of administrative
punishment on the
wrongful acts that violate the administration of the non-municipal-administered
urban roads (including the roads
within the areas of cities and towns), bridges
and their auxiliary facilities according to the provisions of laws, rules and
regulations
governing the administration of municipal engineering.
Article 9
(Administration of Greening)
The Municipal and the District/ County Law
Enforcement Departments of City Administration shall exercise the power of
administrative
punishment on the wrongful acts, except those against the ancient
and famous trees and the construction of greening, according to
the provisions
of laws, rules and regulations governing the administration of
greening.
Article 10 (Administration of Water Affairs)
The Municipal and
the District / County Law Enforcement Departments of City Administration shall
exercise the power of administrative
punishment on the following wrongful acts
that violate the administration of river courses according to the provisions of
laws,
rules and regulations governing the administration of water affairs:
1.
Dumping of industrial, agricultural and construction wastes, domestic garbage
and excrement and urine;
2. Washing the vehicles and containers that have
stored oils or poisonous and harmful pollutants;
3. Constructing buildings or
structures like houses and sheds without permission.
Article 11
(Administration of Environmental Protection)
The Municipal and the District /
County Law Enforcement Departments of City Administration shall exercise the
power of administrative
punishment on the following wrongful acts that can be
judged without the need of testing instruments according to the provisions
of
laws, rules and regulations governing the administration of environmental
protection:
1. The burning of materials in non-designated areas that produces
poisonous and harmful smog and offensive gases;
2. The road transportation
and operation of stacking etc. that raise dusts and pollute the environment;
3. Dumping at will or scattering industrial waste residues or other solid
wastes in the process of loading and transportation;
4. The installation of
air-conditioner and cooling facilities that violates relevant regulations and
thus affects the environment
and other people' s living;
5. The conduct of
construction works at night without approval or not in compliance with the
requirements of approval that produces
noise pollution;
6. The burning of
smog producing materials like stalks and dead leaves in the open in the
stipulated regions like densely populated
areas, and in the vicinity of airports
and major traffic lines, etc.
Article 12 (Administration of Public Security
and Traffic)
The Municipal and the District / County Law Enforcement
Departments of City Administration shall exercise the power of administrative
punishment on the wrongful acts of stalling without permission and occupying
roads by stacking goods according to the provisions
of laws, rules and
regulations governing the administration of public security and
traffic.
Article 13 (Administration of Industry and Commerce)
The
Municipal and the District / County Law Enforcement Departments of City
Administration shall exercise the power of administrative
punishment on the
wrongful acts of operating business without license by occupying roads or
illegally distributing and posting
printed advertisements according to the
provisions of laws, rules and regulations governing the administration of
industry and
commerce.
Article 14 (Administration of Construction)
The
Municipal and the District / County Law Enforcement Departments of City
Administration shall exercise the power of administrative
punishment on the
wrongful acts of damaging, occupying without permission the obstacle-free
facilities or changing the use of obstacle-free
facilities according to the
provisions of laws, rules and regulations governing the administration of
construction.
Article 15 (Administration of Real Estate)
The Municipal and
the District / County Law Enforcement Departments of City Administration shall
exercise the power of administrative
punishment on the following wrongful acts
in the area of the property management according to the provisions of laws,
rules and
regulations governing the administration of real estate:
1.
Constructing buildings and structures like houses and sheds without permission
in public green areas, on roads or in other places;
2. Damaging the looks of
buildings.
Article 16 (Administration of City Planning)
The Municipal and
the District / County Law Enforcement Departments of City Administration shall
exercise the power of administrative
punishment on the wrongful acts of
constructing buildings or structures that affect the public security, public
health and sanitation,
city traffic and city appearance and landscape according
to the provisions of laws, rules and regulations governing the administration
of
city planning.
Article 17 (Demolishing Illegal Buildings)
In investigating
and handling the wrongful acts of constructing buildings and structures like
houses and sheds without permission
in accordance with provisions of these
procedures, the Municipal and District/county Law Enforcement Departments of
City Administration
shall take evidence of, and affirm the cases according to
law, and then make the decision of demolishing within a specified time
period.
If the Municipal and District / County Law Enforcement Departments of
City Administration made the decision of ordering the party
concerned to
demolish the illegal building within a specified time period, it shall notify
the party concerned in writing, and
shall deliver the written notification to
the party concerned; in case that the party concerned is difficult to be
ascertained,
or in case of concentrated and clustered illegal constructions, the
Municipal and the District / County Law Enforcement Departments
of City
Administration may notify the wrongdoers by means of public announcement.
In
case that the party concerned refuses to perform decision of demolishing the
illegal construction when the time limit is due,
the Municipal and the District
/ County Law Enforcement Departments of City Administration may apply to the
municipal and the district/county
people' s government for organizing an
enforcement of demolishing. Ten days before the enforcement of demolishing the
concentrated
and clustered illegal buildings or seven days before the
enforcement of demolishing other forms of illegal buildings, the municipal
and
the district / county people' s government shall issue the public
announcement.
In case of the construction of buildings or structures like
houses and sheds without permission being under way, the Municipal and
District
/ County Law Enforcement Departments of City Administration shall order the
party concerned to stop the construction immediately
and to demolish the
construction within a specified time limit. In case that the party concerned
refuses to stop the construction,
or refuses to demolish the construction within
the specified time limit, the Municipal and the District / County Law
Enforcement
Departments of City Administration may demolish the construction for
the party concerned or enforce the demolition immediately.
The party concerned
shall bear all the expenses incurred in the demolition of the construction
carried out on its behalf.
Article 18 (Transfer of Cases)
In case that in
the activities of supervision and inspection, relevant administrative
departments find the suspected wrongful acts
that are subject to the
investigation and handling by the Municipal and the District / County Law
Enforcement Departments of City
Administration, they shall transfer the cases to
the departments concerned for handling. In case that in the activities of
supervision
and inspection, the Municipal and District / County Law Enforcement
Departments of City Administration find the suspected wrongful
acts that fall
outside the scope of their duty, they shall transfer the cases to the relevant
departments for handling.
The relevant departments and the Municipal and
District / County Law Enforcement Departments of City Administration shall not,
without
proper reasons, refuse to accept the cases transferred by the
transferring departments and shall inform the transferring departments
in time
after making the decision of the handling.
Article 19 (Report Acceptance and
Handling)
The Municipal and the District / County Law Enforcement Departments
of City Administration shall establish the system of report and
acceptance and
handling of wrongful acts, and keep the reporter secret.
In case that the
wrongful acts reported by citizens, legal entities or other organizations are
within the scope of their duties,
the Municipal and the District / County Law
Enforcement Departments of City Administration shall investigate and handle in
time;
in case of out of their duties, the Municipal and the District / County
Law Enforcement Departments of City Administration shall
transfer the case to
the relevant administrative departments for handling. The Municipal and the
District / County Law Enforcement
Departments of City Administration shall
inform the reporter of the situation of the investigation and handling or of the
transfer.
Article 20 (Relevant Requirements on the Application of the
Administrative Punishment)
The Municipal and the District / County Law
Enforcement Departments of City Administration, in exercising the power of
administrative
punishment, order the party concerned to correct or to correct
within a specified time limit the wrongful acts. If the wrongful
act is slight
and is corrected in time without harmful results, the administrative punishment
shall not be imposed.
In case that one act of the party concerned violates
two or more provisions of laws, rules and regulations that all shall be fined,
the Municipal and the District / County Law Enforcement Departments of City
Administration may apply the relatively severe punishment
term to the
administrative punishment, and shall not impose a cumulative fine or repeated
fines.
Article 21 (Sharing the information of Law Enforcement)
the
Municipal and the District / County Law Enforcement Departments of City
Administration shall share the information about administrative
punishment and
administrative permission related to relatively-centralized power of
administrative punishment over the city administration
with the relevant
municipal and district/county administrative departments of construction, city
appearance and environmental sanitation,
municipal engineering, greening, water
affairs, environmental protection, public security, industry and commerce,
housing and land
resources, and planning, etc.
Article 22 (Legal Liabilities
for the Refusal and Interference of Law Enforcement)
Anyone who refuses or
interferes with the lawful performance of official duty by the law enforcement
personnel of city administration,
but does not resort to the form of violence or
threat, shall be subject to punishment by the public security organ according to
the "Regulations of the People' s Republic of China on Public Security
Administration and Imposition of Punishment" . If the use
of the form of violence
or threat constitutes a crime, the wrongdoer shall be prosecuted for criminal
liabilities as provided by
Law.
Article 23 (Investigation of the Illegal Acts
of the Law Enforcement Personnel)
The Municipal and the District / County Law
Enforcement Departments of City Administration and their administrative law
enforcement
personnel shall exercise the law enforcement impartially. Anyone who
neglects his/her duties, abuses his/her power, engages in malpractice
for
selfish ends, extorts and takes bribes shall be imposed administrative
punishments by his/her work unit. If the case is serious
and the wrongful act
constitutes a crime, he/she shall be prosecuted for criminal liability as
provided law.
Article 24 (Reconsideration or Lawsuit)
The party concerned
who does not accept the specific administrative acts made by the Municipal Law
Enforcement Bureau of City Administration
may, according to the provisions of
the "Law of the People' s Republic of China on Administrative Reconsideration" ,
apply to the
Municipal People' s Government for administrative reconsideration;
or may, according to the provisions of the "Administrative Litigation
Law of the
People' s Republic of China" , bring a lawsuit directly to the people' s court.
The party concerned who does not accept the specific administrative acts
made by the District / County Law Enforcement Department
of City Administration
may, according to the provisions of the "Law of the People' s Republic of China on
Administrative Reconsideration"
, apply to the district / county people' s
government or the Municipal Law Enforcement Bureau of City Administration for
administrative
reconsideration; or may, according to the provisions of
the "Administrative Litigation Law of the People' s Republic of China" ,
bring a
lawsuit directly to the people' s court.
Article 25 (Effective Date)
These
Procedures shall become effective on February 1, 2004. The "Interim Regulations
of Shanghai Municipality on the Comprehensive
Law Enforcement of City
Administration" promulgated by the Shanghai Municipal People' s Government on
September 20, 2000 shall
be repealed at the same time.
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