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I. Clarification of relevant concepts
Administrative execution is a means to guarantee actual performance of obligations in administrative law. If we jump out of the perspective of administrative law science and look at the coordinating relations among administrative execution, civil execution and criminal execution, we may find that there exists a similar structure of legal order among them. For example, administrative investigations correspond to court investigations in civil procedure law and criminal investigations in criminal procedure law; administrative sanction decisions correspond to civil judgments and criminal judgments; administrative execution corresponds to civil execution and criminal execution. They are, in essence, to ensure the actual performance of administrative decisions in force, civil judgments or criminal judgments. Such observation is undoubtedly of help to us in breaking the boundaries of disciplines and obtaining a visualized reference in understanding.
Back to the perspective of administrative law, the mainland scholars and their Taiwanese counterparts have a similar understanding of the concept of administrative execution. In Taiwan, Professor Cai Zhenrong argues that it is out of place to incorporate prompt coercion into the Administrative Execution Act of Taiwan region. In the mainland, there is also a substantial divergence of opinion in both theoretical and practical areas with respect to the understanding of administrative execution. The Administrative Coercion Law of the PRC does not incorporate all of the administrative execution systems. To facilitate an academic dialogue, it is of necessity to clarify the understanding and application of such concepts as administrative execution, administrative coercive measures and administrative enforcement in the mainland.
Strictly speaking, there is no such terminology as“administrative execution” in legislation in the Chinese mainland and it is merely an academic term. With regard to the understanding of administrative execution, there are generally three views in the academic world. They are: (1) Administrative execution equals to administrative enforcement. That is, administrative execution law is deemed the same as civil enforcement law, and administrative execution is administrative enforcement, including enforcement by administrative organs on their own and applying to the people’s courts for enforcement.(2) Administrative execution equals to administrative coercion. This view can be divided into the “theory of two behaviors” and “theory of three behaviors”. The“theory of two behaviors” claims that administrative coercion includes administrative coercive measures and administrative enforcement. The former is a temporary rights restriction behavior, and the latter is a behavior of mandatory performance directed at those who violated their obligations, which is roughly equivalent to the administrative enforcement and prompt coercion in the Taiwan region’s Administrative Execution Act. The “theory of three behaviors” follows the classic framework of Japan’s administrative law, maintaining that administrative coercion consists of administrative enforcement, prompt coercion and mandatory administrative investigation. (3) Administrative execution is more than administrative coercion. Administrative coercion does not constitute the whole part of the system of administrative execution and cannot be the general law of administrative execution but the general law of administrative coercion. In addition to the guarantee of performance of administrative obligations through coercive means by administrative coercive organs, the obligors’fulfillment of their obligations of their own free will is also the form of administrative execution and is, moreover, the most extensive and important form of administrative execution.
On June 30, 2011, the 21st meeting of the Standing Committee of the 11th National People’s Congress of the People’s Republic of China passed after deliberation the Administrative Coercion Law of the People’s Republic of China (hereinafter referred to as the “Administrative Coercion Law”). Although the above two views have their own supporters in the jurisprudential circle, China’s Administrative Coercion Law finally adopted the “theory of two behaviors” in view of the current situation of rule of law and the legislative needs in China. Article 2 thereof provides that “The term ‘administrative coercion’ as mentioned in this Law shall include administrative coercive measures and administrative enforcement. Administrative coercive measures refer to the temporary restriction of the personal freedom of citizens or temporary control of the property of citizens, legal persons or other organizations according to law by administrative organs in the process of administration for such purposes as stopping illegal acts, preventing destruction of evidence, avoiding damage and containing expansion of danger. Administrative enforcement refers to the performance of obligations as legally enforced by administrative organs or by the people’s courts upon applications of administrative organs against citizens, legal persons or other organizations which do not perform administrative decisions.” This article will briefly introduce the administrative execution system of the Chinese mainland by revolving around the legislative process and legal text of the Administrative Coercion Law and citing the works of expert officials and relevant scholars who have directly or indirectly participated in the formulation of this law.
II. Power game on the allocation of administrative coercive powers
Starting from the drafting of the Regulations on Administrative Enforcement by the Bureau of the Legislative Affairs under the State Council in 1988, the promulgation of the Administrative Coercion Law has undergone over 20 years. Even starting from the drafting work of the administrative coercion law by the Legislative Affairs Commission of the NPC Standing Committee in March 1999, 12 years have elapsed before its final passage. It is, so to speak, ten years for a sword. Particularly the fact that the law was deliberated on five occasions also set a new high in the legislations of the same category. It is known to all that the legislative process is a combined process in which various interest parties express and strive for their interests and the legislators weigh and integrate the various interests. During the interest selection process, the legislators will inevitably have to make a tough choice and judgment. The analysis on the interest game among various parties and the balancing of interests by the legislative organ during the process of enacting the administrative coercion law will be conducive to the understanding of the formation of the administrative execution system in mainland China.
A. The center government vs. the local governments
The enactment of the administrative coercion law is aimed at resolving the three prominent problems existing in administrative coercion, that is, “looseness”, “chaos”and “softness”. Therefore, how to scientifically allocate administrative coercive powers has always been the focal point of controversy during the law drafting process. The allocation of administrative coercive powers is not just an issue of administrative law; rather, it is more of an issue of constitutionalism, directly relating to the relationship between the central government and local governments, which can be best illustrated by the debate during the formulation of the administrative coercion law over the issue of whether the local governments should be vested with the power to take administrative coercive measures.
Advocators argue that endorsing the local governments with the power to adopt administrative coercive measures is (1) in accordance with China’s current legislative system; (2) widely existent in practice; (3) beneficial to the resolving of regional disparity and meeting the needs of the local administration; (4) consistent with the development trend of decentralization abroad; (5) advantageous to the strengthening of the authorities of local people’s congresses and their standing committees; (6) for the maintenance of the consistency of administrative legislation, and etc.
The core reason of the opponents is that “the local governments have too much power in administrative coercion, which has been felt and realized deeply by the public.” It is probable that the local governments, if given the power to take administrative coercive measures, may abuse the power. In addition, local protectionism is serious in some places, which is a fact that no one can deny.
The Law Committee of the NPC, upon coordination with the Legislative Affairs Office of the State Council, finally adopted the plan of “respecting the practice”. For example, some commissioners such as Xin Chunying and Chen Sixi are of the view that local governments should be left with some space and it is of necessity that local regulations be given certain power to take administrative coercive measures, which, however, must be subject to strict limitations. Ultimately, the Chinese mainland established the model that both the central government and local governments have the power to set administrative coercive measures.
B. Legislation vs. administration
The game between legislation and administration is in nature the struggle between the attack and defense of the principle of legal reservation, the most remarkable sign of which is the discussion on whether administrative regulations should be given the power to set administrative coercive measures and administrative enforcement.
As regards the issue of whether administrative regulations should be given the power to set administrative coercive measures, at the end of the first half year of 2010, among the current administrative regulations, 96 of them contained administrative coercive measures. Among the 96 administrative regulations, 17 were formulated by the State Council after the law has set forth the principle provisions on specific matters and at the same time delegated the State Council to formulate concrete administrative measures. Therefore, the legislative organ, in consideration of Article 8 of the Legislation Law, acknowledges that administrative regulations, under the circumstances that no law has yet been made and no “absolute reservation” of law is available, have limited powers to set administrative coercive measures.
In terms of the issue of whether administrative regulations can set administrative enforcement power, the Legislative Affairs Office of the State Council proposed that the legislation should explicitly specify that administrative regulations can set necessary administrative enforcement because in practice administrative regulations had, for the sake of administration, provided that some administrative organs have the power of enforcement and the provisions of the second draft of the Administrative Coercion Law failed to cover the current practice. After weighing, the legislative organ decides that administrative enforcement power concerns the distribution of administrative power and judicial power and cannot be prescribed by administrative regulations on their own, and thus finally establishes the “principle of absolute reservation” of administrative enforcement power. Namely, administrative enforcement power can only be instituted by law.
C. Administration vs. judicature
Up to the forth review of the draft administrative coercion law, the focal point of controversy is still about the distribution of power, especially of administrative power and judicial power. The game between the administrative organ and judicial organ is centered on the allocation of administrative enforcement power. Aside from the above mentioned, i.e., the State Council hopes to obtain administrative enforcement power in administrative regulations, the said game can also be seen in applications by administrative organs to the people’s courts for enforcement.
In accordance with the practice prior to the introduction of the Administrative Coercion Law, administrative enforcement power is exercised directly by administrative organs or by the people’s courts upon application of administrative organs. That is, “taking the application to the people’s courts for enforcement as the principle, and independent enforcement by administrative organs as the exception.” That means that independent enforcement by administrative organs must be delegated by law. In this connection, the Supreme People’s Court hopes to change the “dual track system” to “single track system”. Specifically, all administrative enforcement should be applied by administrative organs to the people’s courts for enforcement, the people’s courts examine the applications submitted and render rulings on enforcement, and the administrative organs are responsible for implementation. With respect to the examination standard, the people’s courts hope to conduct substantive examination if, while examining a written application, finding that the administrative decision is obviously lack of factual and legal basis. The administrative organs hope to “take form examination as the principle and substantive examination as the exception”.
The Law Committee of the NPC, after study with the Supreme People’s Court and the Legislative Affairs Office of the State Council and given that this execution method is still at the stage of reform and exploration, decides not to lay down provisions on specific execution method so as to leave room for the courts to explore and reform the mode of execution. As to the issue of the examination method, form examination or substantive examination, the Law Committee thinks that “there are still different opinions among relevant departments and further study is needed”. As a consequence, the final introduced administrative coercion law is ambiguous in the above issues and there remain in effect many pending issues.
It can be found from the above analyses that the legislation process of the administrative coercion law is in effect a game and interaction among the legislative organ, administrative organ and court. The promulgation of the Administration Coercion Law is in a way the achievement of the goal of legislative policies through the compromise of the three organs. However, what cannot be ignored is that it is the insistence of some NPC representatives, the media’s amplification of some cases such as the case of sky-high overdue fine, and the unremitting efforts of some experts and scholars, especially of China Administrative Law Association, that finally contribute to the current system framework, basic principles and main contents of the Chinese mainland administrative coercion law.
III. The gist of the administrative execution system in the Chinese mainland
Seen from the legislative objectives, principles and main contents of the administrative coercion law, the administrative execution system of the Chinese mainland has primarily the following highlights:
A.Introduction of the principle of proportionality
Principle of proportionality is an important principle in administrative law. It is believed in academia that principle of proportionality consists of three sub-principles, i.e., principle of appropriateness (or suitability), principle of necessity, and principle of proportionality in a narrow sense. As early as in 1996 the Administrative Penalties Law provided that the punishment should “match the facts, nature, circumstances and the degree of social damage caused by the illegal activity”. The establishment of the principle of proportionality in the Administrative Coercion Law can be said to be the first time that China in its administrative types of law expressly established the principle. Article 5 thereof provides that“the setting and execution of administrative coercion shall be appropriate. If the purposes of administration may be achieved by non-coercive means, no administrative coercion shall be set or implemented.” This Law, though not very comprehensive, at least reflects the core element of the principle of proportionality. For example, Chapter III thereof provides that administrative organs, in implementing administrative coercive measures which restrict a citizen’s personal freedom, should follow stricter procedures than those for other administrative coercive measures, which implies that “administrative coercive measures which restrict personal freedom shall not be implemented if the purposes of implementing such an administrative coercive measure have been achieved”. In addition, other principles are also written into this Law explicitly, such as coercion by law, combination of education and coercion, and due process of law.
B. The power sharing model between the central government and local governments in setting administrative coercive measures
With respect to the power of setting administrative coercive measures, the Administrative Coercion Law established the sharing model between the central government and local governments. In principle, the administrative coercive measures are prescribed by law. However, for matters which are not included in any law and are subject to the administrative authority of the State Council, administrative coercive measures other than those that restrict personal freedom of a citizen, freeze deposits and remittances and those as must be set by law may be set by administrative regulation. For matters which are not included in any law and are subject to the administrative authority of the State Council, administrative coercive measures other than those as prescribed in Article 9 (1) and (4) of this Law and those as must be set by law may be set by administrative regulation. For matters which are not included in any law or administrative regulation and are local affairs, two administrative coercive measures: seizure of premises, facilities or properties, and impoundment of properties, may be set by local regulation. Such provisions are rooted in Article 8 of the Legislation Law, which provides that “coercive measures which restrict personal freedom” is an absolute reservation clause and shall only be governed by law and cannot be delegated. As to the freezing of deposits and remittances, these are things concerning the normal operation of enterprises and are regulated by law of bank and finance. Therefore, no delegation of authority shall be made to administrative regulations to set administrative coercive measures. The main considerations in delegating local governments to set such two administrative coercive measures as “seizure and impoundment” are that it is very difficult to unify the modes of administrative coercion because of the great disparities between the urban and rural areas and between the east and Midwest resulted from the imbalanced development of China’s economic society as well as the tremendous differences of local affairs caused by different geographies, customs, and ethnic groups. For instance, most administrative coercive measures such as forced closure and fill of an illegally mined well, forced eradication of mother plants of narcotic drugs, forced segregation and quarantine of cholera carriers, and forced stopping of illegal sand dredging in inland rivers, are of strong territoriality and thus, it is unlikely for the central government to have complete power to set administrative coercion and the power sharing model between the central and local governments should be adopted. Aside from the above mentioned, rules made by departments or local governments as well as other regulatory documents shall not set administrative coercive measures.
C. Relatively centralized powers of administrative coercive measures
In an effort to solve the problem of duplicate law enforcement, Article 16 of the 1996 Administrative Penalties Law provided for a relatively concentrated administrative penalties system. With the introduction of the Administrative Licensing Law in 2003 and the Circular of the Pilot Project of the Administrative Reconsideration Committee in 2008, the Chinese mainland have respectively started the pilot work on relatively centralized powers of administrative penalties, relative centralized powers of administrative licensing, and relative centralized powers of administrative reconsideration. The Administrative Coercion Law in 2011 further established the system of relatively centralized powers of administrative enforcement. Under paragraph 2, Article 17 thereof, “Administrative organs which exercise relatively centralized powers of administrative penalties in accordance with the Law of the People’s Republic of China on Administrative Penalties may implement administrative coercive measures related to their powers of administrative penalties as prescribed by laws and regulations.” Actually, long before the introduction of the Administrative Coercion Law, there had been in practice the mode of relatively centralized powers of administrative penalties and centralized powers of administrative coercive measures. For example, Nanjing had provided that “further adjustment and centralization shall be made with respect to the powers of administrative penalties for illegal buildings and structures not authorized or exceeding the authorized scope which belong to individuals or belong to units and are less than 200m2, and the coercive measures such as seizing illegal construction sites and demolishing illegal constructions. The legalization of local practices through legislation is primarily based on the consideration that administrative coercive measures are the guarantee of effectiveness, the purpose of which is to ensure that lawful and effective administrative penalties decisions are performed in a timely and rightful manner so as to maintain social order and administrative efficiency.
D. The dual-track system of administrative enforcement
As previously mentioned, the allocation of administrative enforcement in mainland China has the feature of “dual-track system”, i.e., enforcement by administrative organs and enforcement by the people’s courts upon applications of administrative organs. Article 13 of the Administrative Coercion Law provides that“Administrative enforcement shall be set by law. Where enforcement by administrative organs is not provided for by law, the administrative organ making the relevant administrative decision shall apply to the people’s court for enforcement.” This is what mainland academics often said, i.e., “taking enforcement by the people’s court upon application as the principle and autonomous enforcement by administrative organs as an exception”. Currently, only over 20 laws and administrative regulations have provided for enforcement by administrative organs on their own initiative, for example, the Customs Law, the Law Concerning the Administration of Tax Collection, and etc. In this connection, there exist primarily two problems. The first problem concerns the cleanup of administrative regulations. Under Article 13 of the Administrative Coercion Law, administrative enforcement can only be set by law. Then, the “imposition of overdue fines” stipulated in the current 14 administrative regulations and the “performance on behalf of the party concerned” in matters concerning traffic safety, environmental pollution control and natural resources protection prescribed in the 19 administrative regulations should be deemed invalid. The second problem concerns the understanding of Article 44 and paragraph 3, Article 46 of the Administrative Coercion Law. Article 44 thereof states that “For an illegal building, structure or facility, among others, which needs to be dismantled by force, an administrative organ shall make an announcement to set a time limit for the party concerned to dismantle it. If the party concerned fails to apply for administrative reconsideration or lodge an administrative lawsuit within the statutory time limit, and does not dismantle it, the administrative organ may forcibly dismantle it according to law.” Paragraph 3, Article 46 thereof provides that “An administrative organ without the administrative enforcement power shall apply to the people’s court for enforcement. However, if the party concerned fails to apply for administrative reconsideration or lodge an administrative lawsuit within the statutory time limit, and still does not perform the relevant decision after being prompted, the administrative organ which has taken the measure of seizure or impoundment in the process of administration may auction the seized or impounded properties according to law for offsetting the fine.” This“however” clause is in effect an exception to the principle of application to the people’s court for enforcement. That is, the Administrative Coercion Law recognized the limited enforcement power of administrative organs in enforcing the demolition of illegal constructions and pecuniary payment obligations.
E. Public participation in the setting of administrative coercion
Article 14 of the Administrative Coercion Law provides that “In drafting a law or regulation, if administrative coercion is to be set, the drafting entity shall hear opinions in such forms as a hearing and a demonstration meeting, and explain the necessity of such administrative coercion, the possible impacts and the solicitation and adoption of opinions to the organ making the law or regulation.” As for the procedural regulations on the setting of administrative coercion, the Administrative Coercion Law provides for two methods. The first is about the regulation before the setting, i.e., public participation in the setting of administrative coercion. The second concerns regulation after the setting, i.e., post-legislation evaluation of the implementation of administrative coercion. Such provisions not only fully reflect the spirit of democracy and concept of participation of the Administrative Coercion Law but also effectively ensure that the setting of administrative coercion is of acceptability and feasibility.
F. The procedures for implementing administrative coercion
Both the procedures for implementing administrative coercive measures and procedures for administrative enforcement reflect the basic requirement of the principle of due process of law. With respect to the implementation procedures for administrative coercive measures, the Administrative Coercion Law devised two procedural rules: general procedures and emergency procedures. The general procedures include six steps: (1) Evaluating whether there is the need to take administrative coercive measures; (2) Before execution, a report on execution shall be submitted to the person in charge of the administrative organ and an approval of execution shall be obtained; (3) An administrative coercive measure shall be implemented by two or more law enforcement personnel of the administrative organ and law enforcement identity certificates shall be produced; (4) The party concerned shall be notified to be present and notified on the spot of the reasons and basis for taking the administrative coercive measure and the rights of and remedies available to the party concerned according to law; (5) The statements and arguments of the party concerned shall be heard; (6) On-site transcripts shall be made. Decisions on administrative coercive measures shall be made in accordance with the transcripts. If any administrative coercive measure is implemented on the spot as needed in case of emergency, the law enforcement personnel of an administrative organ shall report it to the person in charge of the administrative organ and go through the approval formalities within 24 hours, which is the only difference between emergency procedures and general procedures.
As regards procedures for administrative enforcement, the administrative organ with the administrative enforcement power shall conduct enforcement according to the following four steps: (1) the administrative organ shall prompt the party concerned to perform obligations before making a decision on enforcement; (2) the administrative organ shall fully hear the opinions of the party concerned, guarantee his or her right to make statements and arguments; (3) where, after being prompted, the party concerned still fails to perform an administrative decision within the prescribed time limit without any justifiable reason; (4) the administrative organ may make a decision on enforcement. Generally, administrative organs shall not conduct administrative enforcement at night or on a statutory public holiday, except for emergency. In addition, administrative organs shall not force the parties concerned to perform the relevant administrative decisions by such means as cutting off the supply of water, electricity, heating or gas for the living of residents. An administrative organ which applies to the people’s court for enforcement shall meet the following requirements: (1) the administrative organ has no enforcement power and has performed its obligation of prompting; (2) the administrative organ applies to the people’s court for enforcement; (3) the court conducts documentary examination of the applications; (4) the court makes a ruling on whether to conduct enforcement. In case of emergency, to guarantee public security, an administrative organ may apply to the people’s court for immediate enforcement.
G. Enforcement reconciliation
The establishment of the system of enforcement reconciliation guaranteed the enforcement of administrative decisions and reduced social conflicts, which is in accordance with the requirement of constructing a harmonious socialist society. In this connection, Article 42 of the Administrative Coercion Law provides that “In conducting administrative enforcement, an administrative organ may reach an enforcement agreement with the party considered, provided that no harm is caused to the public interests and the legitimate rights and interests of others. The enforcement agreement may be performed by stages; and if the party considered has taken remedial measures, the imposed fine or late fee may be reduced or waived. An enforcement agreement shall be performed. If the party concerned fails to perform the enforcement agreement, the administrative organ shall resume enforcement.”
H. The remedies of administrative coercion
Whether it is a decision on administrative coercive measures or a decision on enforcement made by an administrative organ with enforcement power, they are all specific administrative acts and the party concerned can apply for administrative reconsideration or file for administrative litigation, which is a development to the administrative reconsideration law and administrative procedure law. Item 2 of paragraph 1 of Article 6 of the Administrative Reconsideration Law provides that anyone who refuses to accept the decisions made by an administrative organ on such administrative coercive measures as restriction of personal freedom or the seizure, impoundment or freezing of properties, may file an application for administrative reconsideration. Item 2 of paragraph 1 of Article 11 of the Administrative Procedure Law provides that anyone who refuses to accept such administrative coercive measures as restriction of personal freedom or the seizure, impoundment, freezing of properties, may file for administrative litigation. Seen from item 4 of paragraph 2 of Article 24, item 4 of Article 31, and item 4 of paragraph 2 of Article 37 of the Administrative Coercion Law, such remedies as administrative reconsideration and administrative litigation are not limited to administrative coercive measures or decisions on administrative coercive measures; rather, they apply to both.
Moreover, Article 8 of the Administrative Coercive Law provides: “A citizen, a legal person or any other organization shall be entitled to compensation for damage suffered from an administrative organ’s illegal administrative coercion. A citizen, a legal person or any other organization which has suffered damage from any illegal act of or expansion of extent of enforcement by the people’s court in the process of enforcement shall be entitled to compensation according to law.” This needs to be linked up with the State Compensation Law. Specifically, if an administrative organ infringes upon one’s rights, compensation shall be made in accordance with administrative compensation procedures; if the people’s court causes damage to a citizen, legal person or any other organization during the process of enforcement, judicial compensation procedures shall apply.
IV. Unfinished Tasks
It should be said that the Administrative Coercion Law is another important law regulating the exercise of administrative power after the Administrative Penalties Law and Administrative Licensing Law. However, although it has gone through deliberation on five occasions, restrained by the power game among various departments, there are still many problems that are exigent to be clarified.
A. The relationship between administrative enforcement and administrative execution
In terms of the scope of regulation, administrative enforcement is the greatest common devisor concerning state and local administrative execution system, which is almost undisputed. However, administrative enforcement is by no means the whole part of administrative execution system. Although the law does not rigidly provides that administrative organs should take plural execution measures, the administrative organs, seen from the function that administrative execution is to achieve administrative objectives, should have the discretionary space for using other alternative execution measures. “The employment of coercive measures is the last resort for an administrative organ, and therefore, the administrative organ must take all consequences into account before implementing coercive measures. The administrative organ shall not be accused of violating the law if, after consideration, making a decision on non-enforcement or suspension of enforcement. It is the best policy if the administrative organ can reach an agreement with the obligor and achieve the same result as that of obligations being performed without using coercive measures or persuade the obligor to perform his or her obligations voluntarily.”
Seen from the experience of comparative law, some countries put emphasis on the construction of a multi-level administrative execution system, consisting of voluntary performance, execution through agreement, administrative enforcement, civil and criminal litigation. Take Japan’s administrative execution system as an example, its focus is not merely on “coercion” but on the building of relevant systems in an omnibearing way so as to guarantee the performance of administrative obligations. In the author’s view, administrative execution should consist of the following four layers or defensive lines. The first defense is voluntary performance. Actually, a considerable number of administrative decisions are “executed” through the prompt of administrative organs, i.e., fines will be imposed if there is violation of laws, which is a psychological coercion. This prompt is a more effective executive measure than those prescribed by administrative execution law. Therefore, the legislative organ is not frugal in using this “executive measure”. The second defense is execution through agreement. That is, an administrative decision is executed through the means of private law without prejudice to public interest. The third defense is administrative enforcement. But there are also exceptions. Take France as an example, its administrative enforcement is limited to a very narrow scope. Romieu said that “If there is criminal punishment, there will be no administrative enforcement.” In theory, administrative execution can exist only when there is a need to guarantee abidance by law and no other judicial means are available to guarantee abidance by law. The fourth and also the last defense is courts. Specific methods include civil contempt of court, moving the case to the Attorney General’s Office, initiation of criminal prosecution by district attorneys, and etc. From the perspective of this plural administrative execution system, we need to acknowledge that the system of administrative execution should be of multi-layers, and administrative enforcement is neither the starting point nor the ending point of the administrative execution system.
B. The relationship between administrative coercion law and administrative investigation law
From the perspective of administrative process theory, administrative investigation is at the “upstream”of the administrative process, with its focus on collecting information or ascertaining facts, whereas administrative execution is at the “downstream” of the administrative process, with its emphasis on urging the party concerned to perform obligations in administrative law. In the past, people were accustomed to include mandatory data collection activities, i.e., interrogation and inspection, into administrative prompt coercion. For example, Professor Keiso Shobo alleges that “there is no material difference between prompt coercion and administrative investigation, which can be treated uniformly.” However, recently there is a tendency to separate activities of collecting materials and information from administrative prompt coercion and treat them as another administrative investigation, which also emerges in the Chinese mainland. The Administrative Coercion Law adopts the dichotomy of administrative coercive measures and administrative enforcement and does not provide for coercive investigation. However, seen from its temporary restriction of the rights of the person, the seizure, impoundment, and freezing of properties, and other administrative coercive measures (e.g., forced entrance into residence), and especially the means of preventing evidence from being destroyed, they are the same as administrative investigation in terms of functions. Both are designed to guarantee that the future legal facts which are the bases for making administrative decisions are at a controllable or stable state. For example, Article 21 of the third review draft of the Administrative Coercion Law provided that “An administrative organ, in inquiring under law such matters as the financial book, transaction records and business contact of an enterprise, shall not interfere with the enterprise’s normal business activities and keep confidential the enterprise’s trade secrets.” This provision was finally deleted from this Law.
From the perspective of legal text, the design mode of Article 2 of the Administrative Coercion Law drove subsequent legislations to a choiceless state and actually left a very narrow space for the future Administrative Investigation Law because the Administrative Coercion Law has set forth provisions on the overlaps between administrative investigation and administrative coercive measures (but they are not entirely equivalent to administrative investigation due to their inclusion of administrative prompt coercion). If in the future the Administrative Execution Law is to be enacted specially, the administrative organs should be invested with various means of implementation and at the same time comprehensive and meticulous procedures should be devised. However, the core of administrative execution system – administrative enforcement, has been prescribed in the administrative coercion law. As for the administrative implementing measures, there seems no need to make a law for them specially, and a special law is sufficient.
C. Administrative enforcement system and judicial reform
Given that the administrative management system reform and judicial reform are in progress, the administrative coercion law retains the original “dual-track approach” in administrative enforcement. At present, there are primarily three views regarding the allocation of administrative enforcement power in the academic world. (1) In principle, adjudications on and execution of administrative enforcement should be separated. An administrative organ, after making a decision on administrative enforcement, should apply to the people’s court for examination and adjudication. The execution of the administrative enforcement, however, should be left to the administrative organ. (2) Acknowledging that administrative organs have the power to conduct administrative enforcement. If an administrative organ, through its own enforcement, still cannot realize the content of an administrative act, or the enforcement concerns important personal rights or property rights of the party concerned, the administrative organ need to file an application with the court for enforcement. The court examines the application and renders a ruling on whether enforcement should be conducted. And the administrative organ is responsible for the execution of the administrative enforcement in accordance with the ruling made by the court. (3) Retaining the current form of application by administrative organs to the court, but the examination function and execution function previously undertaken by the court should be separated, with the court continuing to perform the examination function and the execution function going back to the administrative organs. Unified administrative execution organs shall be established. In the meantime, administrative decisions in particular areas shall be expressly set out by law and still be executed by administrative organs on their own. The concrete execution mode was deliberately left out in the process of enacting the Administrative Coercion Law, the purpose of which is to leave the court some space to explore and reform execution manners. The author believes that administrative enforcement power is the extension of execution of administrative acts, and is in essence administrative power, belonging to administrative organs. It is only in special circumstances that courts need to intervene. However, the principle of separation of adjudication and execution should be adhered to.
Another important jurisprudential debate involved in the filing of application to the people’s court for enforcement is the type of examination conducted by the people’s court. Should it be substantive examination or form examination? During the legislation process, some scholars logically argues for substantive examination because the mere examination of form will render the court ineffective in the supervision of administrative organs; moreover, the court may also become an executive organ affiliated to the administrative organs, whose execution may even be less convenient and speedy than the self-execution by the administrative organs. But other scholars think differently, contending that it seems more proper for the court to stick primarily to form examination. In this connection, Article 57 of the Administrative Coercion Law provides that “The people’s court shall conduct documentary examination of the application of an administrative organ for enforcement”, which, however, is not clear and definite enough in the expression of the examination points. Article 55 thereof only lists five requirements on materials. At the beginning of 2011, after the promulgation of the Regulation on Expropriation of Houses on State-owned Land and Compensation, the Supreme People’s Court issued the Emergency Notice on the Prevention of Malignant Events Arising from Forced Land Expropriations and Forced House Demolition and Relocation. Article 2 thereof expressly states that “The courts must strictly examine the legality of the basis of enforcement, and strictly obey the standards in accepting and examining applications filed by administrative organs for the enforcement of specific administrative act such as land acquisition and adhere to the principle of examination by law and shall not deviate from a fair and neutral position by yielding to illegal or improper administrative acts. Applications which fail to meet the statutory requirements for entertaining a case and fail to go through the social stability risk assessment shall be sent back to the applicants or be dismissed; in cases that compensation is not in place or a specific administrative act, though lawful, is obviously unreasonable or improper for enforcement, no enforcement ruling shall be made.” This provision seems to indicate that the Court pursues an attitude of substantive examination. In the author’s view, form examination and substantive examination are not scientific expressions. To strike a balance between administrative power and civil rights as well as between administrative power and judicial power, the court should take form legality examination as the principle and substantive legality examination as the exception.
In addition, the words “decisions on administrative coercive measures” or “administrative coercive measures”are still in use in the administrative reconsideration law and administrative procedure law. Therefore, during the revision process of administrative procedure law and administrative reconsideration law, the legislators need to take the following issues into consideration: how to link up with the administrative coercion law in the choice of words and how to pin down the examinationality of administrative coercive measures and administrative enforcement decisions. These are the unfinished tasks faced by the administrative execution system in the Chinese mainland.
Administrative execution is a means to guarantee actual performance of obligations in administrative law. If we jump out of the perspective of administrative law science and look at the coordinating relations among administrative execution, civil execution and criminal execution, we may find that there exists a similar structure of legal order among them. For example, administrative investigations correspond to court investigations in civil procedure law and criminal investigations in criminal procedure law; administrative sanction decisions correspond to civil judgments and criminal judgments; administrative execution corresponds to civil execution and criminal execution. They are, in essence, to ensure the actual performance of administrative decisions in force, civil judgments or criminal judgments. Such observation is undoubtedly of help to us in breaking the boundaries of disciplines and obtaining a visualized reference in understanding.
Back to the perspective of administrative law, the mainland scholars and their Taiwanese counterparts have a similar understanding of the concept of administrative execution. In Taiwan, Professor Cai Zhenrong argues that it is out of place to incorporate prompt coercion into the Administrative Execution Act of Taiwan region. In the mainland, there is also a substantial divergence of opinion in both theoretical and practical areas with respect to the understanding of administrative execution. The Administrative Coercion Law of the PRC does not incorporate all of the administrative execution systems. To facilitate an academic dialogue, it is of necessity to clarify the understanding and application of such concepts as administrative execution, administrative coercive measures and administrative enforcement in the mainland.
Strictly speaking, there is no such terminology as“administrative execution” in legislation in the Chinese mainland and it is merely an academic term. With regard to the understanding of administrative execution, there are generally three views in the academic world. They are: (1) Administrative execution equals to administrative enforcement. That is, administrative execution law is deemed the same as civil enforcement law, and administrative execution is administrative enforcement, including enforcement by administrative organs on their own and applying to the people’s courts for enforcement.(2) Administrative execution equals to administrative coercion. This view can be divided into the “theory of two behaviors” and “theory of three behaviors”. The“theory of two behaviors” claims that administrative coercion includes administrative coercive measures and administrative enforcement. The former is a temporary rights restriction behavior, and the latter is a behavior of mandatory performance directed at those who violated their obligations, which is roughly equivalent to the administrative enforcement and prompt coercion in the Taiwan region’s Administrative Execution Act. The “theory of three behaviors” follows the classic framework of Japan’s administrative law, maintaining that administrative coercion consists of administrative enforcement, prompt coercion and mandatory administrative investigation. (3) Administrative execution is more than administrative coercion. Administrative coercion does not constitute the whole part of the system of administrative execution and cannot be the general law of administrative execution but the general law of administrative coercion. In addition to the guarantee of performance of administrative obligations through coercive means by administrative coercive organs, the obligors’fulfillment of their obligations of their own free will is also the form of administrative execution and is, moreover, the most extensive and important form of administrative execution.
On June 30, 2011, the 21st meeting of the Standing Committee of the 11th National People’s Congress of the People’s Republic of China passed after deliberation the Administrative Coercion Law of the People’s Republic of China (hereinafter referred to as the “Administrative Coercion Law”). Although the above two views have their own supporters in the jurisprudential circle, China’s Administrative Coercion Law finally adopted the “theory of two behaviors” in view of the current situation of rule of law and the legislative needs in China. Article 2 thereof provides that “The term ‘administrative coercion’ as mentioned in this Law shall include administrative coercive measures and administrative enforcement. Administrative coercive measures refer to the temporary restriction of the personal freedom of citizens or temporary control of the property of citizens, legal persons or other organizations according to law by administrative organs in the process of administration for such purposes as stopping illegal acts, preventing destruction of evidence, avoiding damage and containing expansion of danger. Administrative enforcement refers to the performance of obligations as legally enforced by administrative organs or by the people’s courts upon applications of administrative organs against citizens, legal persons or other organizations which do not perform administrative decisions.” This article will briefly introduce the administrative execution system of the Chinese mainland by revolving around the legislative process and legal text of the Administrative Coercion Law and citing the works of expert officials and relevant scholars who have directly or indirectly participated in the formulation of this law.
II. Power game on the allocation of administrative coercive powers
Starting from the drafting of the Regulations on Administrative Enforcement by the Bureau of the Legislative Affairs under the State Council in 1988, the promulgation of the Administrative Coercion Law has undergone over 20 years. Even starting from the drafting work of the administrative coercion law by the Legislative Affairs Commission of the NPC Standing Committee in March 1999, 12 years have elapsed before its final passage. It is, so to speak, ten years for a sword. Particularly the fact that the law was deliberated on five occasions also set a new high in the legislations of the same category. It is known to all that the legislative process is a combined process in which various interest parties express and strive for their interests and the legislators weigh and integrate the various interests. During the interest selection process, the legislators will inevitably have to make a tough choice and judgment. The analysis on the interest game among various parties and the balancing of interests by the legislative organ during the process of enacting the administrative coercion law will be conducive to the understanding of the formation of the administrative execution system in mainland China.
A. The center government vs. the local governments
The enactment of the administrative coercion law is aimed at resolving the three prominent problems existing in administrative coercion, that is, “looseness”, “chaos”and “softness”. Therefore, how to scientifically allocate administrative coercive powers has always been the focal point of controversy during the law drafting process. The allocation of administrative coercive powers is not just an issue of administrative law; rather, it is more of an issue of constitutionalism, directly relating to the relationship between the central government and local governments, which can be best illustrated by the debate during the formulation of the administrative coercion law over the issue of whether the local governments should be vested with the power to take administrative coercive measures.
Advocators argue that endorsing the local governments with the power to adopt administrative coercive measures is (1) in accordance with China’s current legislative system; (2) widely existent in practice; (3) beneficial to the resolving of regional disparity and meeting the needs of the local administration; (4) consistent with the development trend of decentralization abroad; (5) advantageous to the strengthening of the authorities of local people’s congresses and their standing committees; (6) for the maintenance of the consistency of administrative legislation, and etc.
The core reason of the opponents is that “the local governments have too much power in administrative coercion, which has been felt and realized deeply by the public.” It is probable that the local governments, if given the power to take administrative coercive measures, may abuse the power. In addition, local protectionism is serious in some places, which is a fact that no one can deny.
The Law Committee of the NPC, upon coordination with the Legislative Affairs Office of the State Council, finally adopted the plan of “respecting the practice”. For example, some commissioners such as Xin Chunying and Chen Sixi are of the view that local governments should be left with some space and it is of necessity that local regulations be given certain power to take administrative coercive measures, which, however, must be subject to strict limitations. Ultimately, the Chinese mainland established the model that both the central government and local governments have the power to set administrative coercive measures.
B. Legislation vs. administration
The game between legislation and administration is in nature the struggle between the attack and defense of the principle of legal reservation, the most remarkable sign of which is the discussion on whether administrative regulations should be given the power to set administrative coercive measures and administrative enforcement.
As regards the issue of whether administrative regulations should be given the power to set administrative coercive measures, at the end of the first half year of 2010, among the current administrative regulations, 96 of them contained administrative coercive measures. Among the 96 administrative regulations, 17 were formulated by the State Council after the law has set forth the principle provisions on specific matters and at the same time delegated the State Council to formulate concrete administrative measures. Therefore, the legislative organ, in consideration of Article 8 of the Legislation Law, acknowledges that administrative regulations, under the circumstances that no law has yet been made and no “absolute reservation” of law is available, have limited powers to set administrative coercive measures.
In terms of the issue of whether administrative regulations can set administrative enforcement power, the Legislative Affairs Office of the State Council proposed that the legislation should explicitly specify that administrative regulations can set necessary administrative enforcement because in practice administrative regulations had, for the sake of administration, provided that some administrative organs have the power of enforcement and the provisions of the second draft of the Administrative Coercion Law failed to cover the current practice. After weighing, the legislative organ decides that administrative enforcement power concerns the distribution of administrative power and judicial power and cannot be prescribed by administrative regulations on their own, and thus finally establishes the “principle of absolute reservation” of administrative enforcement power. Namely, administrative enforcement power can only be instituted by law.
C. Administration vs. judicature
Up to the forth review of the draft administrative coercion law, the focal point of controversy is still about the distribution of power, especially of administrative power and judicial power. The game between the administrative organ and judicial organ is centered on the allocation of administrative enforcement power. Aside from the above mentioned, i.e., the State Council hopes to obtain administrative enforcement power in administrative regulations, the said game can also be seen in applications by administrative organs to the people’s courts for enforcement.
In accordance with the practice prior to the introduction of the Administrative Coercion Law, administrative enforcement power is exercised directly by administrative organs or by the people’s courts upon application of administrative organs. That is, “taking the application to the people’s courts for enforcement as the principle, and independent enforcement by administrative organs as the exception.” That means that independent enforcement by administrative organs must be delegated by law. In this connection, the Supreme People’s Court hopes to change the “dual track system” to “single track system”. Specifically, all administrative enforcement should be applied by administrative organs to the people’s courts for enforcement, the people’s courts examine the applications submitted and render rulings on enforcement, and the administrative organs are responsible for implementation. With respect to the examination standard, the people’s courts hope to conduct substantive examination if, while examining a written application, finding that the administrative decision is obviously lack of factual and legal basis. The administrative organs hope to “take form examination as the principle and substantive examination as the exception”.
The Law Committee of the NPC, after study with the Supreme People’s Court and the Legislative Affairs Office of the State Council and given that this execution method is still at the stage of reform and exploration, decides not to lay down provisions on specific execution method so as to leave room for the courts to explore and reform the mode of execution. As to the issue of the examination method, form examination or substantive examination, the Law Committee thinks that “there are still different opinions among relevant departments and further study is needed”. As a consequence, the final introduced administrative coercion law is ambiguous in the above issues and there remain in effect many pending issues.
It can be found from the above analyses that the legislation process of the administrative coercion law is in effect a game and interaction among the legislative organ, administrative organ and court. The promulgation of the Administration Coercion Law is in a way the achievement of the goal of legislative policies through the compromise of the three organs. However, what cannot be ignored is that it is the insistence of some NPC representatives, the media’s amplification of some cases such as the case of sky-high overdue fine, and the unremitting efforts of some experts and scholars, especially of China Administrative Law Association, that finally contribute to the current system framework, basic principles and main contents of the Chinese mainland administrative coercion law.
III. The gist of the administrative execution system in the Chinese mainland
Seen from the legislative objectives, principles and main contents of the administrative coercion law, the administrative execution system of the Chinese mainland has primarily the following highlights:
A.Introduction of the principle of proportionality
Principle of proportionality is an important principle in administrative law. It is believed in academia that principle of proportionality consists of three sub-principles, i.e., principle of appropriateness (or suitability), principle of necessity, and principle of proportionality in a narrow sense. As early as in 1996 the Administrative Penalties Law provided that the punishment should “match the facts, nature, circumstances and the degree of social damage caused by the illegal activity”. The establishment of the principle of proportionality in the Administrative Coercion Law can be said to be the first time that China in its administrative types of law expressly established the principle. Article 5 thereof provides that“the setting and execution of administrative coercion shall be appropriate. If the purposes of administration may be achieved by non-coercive means, no administrative coercion shall be set or implemented.” This Law, though not very comprehensive, at least reflects the core element of the principle of proportionality. For example, Chapter III thereof provides that administrative organs, in implementing administrative coercive measures which restrict a citizen’s personal freedom, should follow stricter procedures than those for other administrative coercive measures, which implies that “administrative coercive measures which restrict personal freedom shall not be implemented if the purposes of implementing such an administrative coercive measure have been achieved”. In addition, other principles are also written into this Law explicitly, such as coercion by law, combination of education and coercion, and due process of law.
B. The power sharing model between the central government and local governments in setting administrative coercive measures
With respect to the power of setting administrative coercive measures, the Administrative Coercion Law established the sharing model between the central government and local governments. In principle, the administrative coercive measures are prescribed by law. However, for matters which are not included in any law and are subject to the administrative authority of the State Council, administrative coercive measures other than those that restrict personal freedom of a citizen, freeze deposits and remittances and those as must be set by law may be set by administrative regulation. For matters which are not included in any law and are subject to the administrative authority of the State Council, administrative coercive measures other than those as prescribed in Article 9 (1) and (4) of this Law and those as must be set by law may be set by administrative regulation. For matters which are not included in any law or administrative regulation and are local affairs, two administrative coercive measures: seizure of premises, facilities or properties, and impoundment of properties, may be set by local regulation. Such provisions are rooted in Article 8 of the Legislation Law, which provides that “coercive measures which restrict personal freedom” is an absolute reservation clause and shall only be governed by law and cannot be delegated. As to the freezing of deposits and remittances, these are things concerning the normal operation of enterprises and are regulated by law of bank and finance. Therefore, no delegation of authority shall be made to administrative regulations to set administrative coercive measures. The main considerations in delegating local governments to set such two administrative coercive measures as “seizure and impoundment” are that it is very difficult to unify the modes of administrative coercion because of the great disparities between the urban and rural areas and between the east and Midwest resulted from the imbalanced development of China’s economic society as well as the tremendous differences of local affairs caused by different geographies, customs, and ethnic groups. For instance, most administrative coercive measures such as forced closure and fill of an illegally mined well, forced eradication of mother plants of narcotic drugs, forced segregation and quarantine of cholera carriers, and forced stopping of illegal sand dredging in inland rivers, are of strong territoriality and thus, it is unlikely for the central government to have complete power to set administrative coercion and the power sharing model between the central and local governments should be adopted. Aside from the above mentioned, rules made by departments or local governments as well as other regulatory documents shall not set administrative coercive measures.
C. Relatively centralized powers of administrative coercive measures
In an effort to solve the problem of duplicate law enforcement, Article 16 of the 1996 Administrative Penalties Law provided for a relatively concentrated administrative penalties system. With the introduction of the Administrative Licensing Law in 2003 and the Circular of the Pilot Project of the Administrative Reconsideration Committee in 2008, the Chinese mainland have respectively started the pilot work on relatively centralized powers of administrative penalties, relative centralized powers of administrative licensing, and relative centralized powers of administrative reconsideration. The Administrative Coercion Law in 2011 further established the system of relatively centralized powers of administrative enforcement. Under paragraph 2, Article 17 thereof, “Administrative organs which exercise relatively centralized powers of administrative penalties in accordance with the Law of the People’s Republic of China on Administrative Penalties may implement administrative coercive measures related to their powers of administrative penalties as prescribed by laws and regulations.” Actually, long before the introduction of the Administrative Coercion Law, there had been in practice the mode of relatively centralized powers of administrative penalties and centralized powers of administrative coercive measures. For example, Nanjing had provided that “further adjustment and centralization shall be made with respect to the powers of administrative penalties for illegal buildings and structures not authorized or exceeding the authorized scope which belong to individuals or belong to units and are less than 200m2, and the coercive measures such as seizing illegal construction sites and demolishing illegal constructions. The legalization of local practices through legislation is primarily based on the consideration that administrative coercive measures are the guarantee of effectiveness, the purpose of which is to ensure that lawful and effective administrative penalties decisions are performed in a timely and rightful manner so as to maintain social order and administrative efficiency.
D. The dual-track system of administrative enforcement
As previously mentioned, the allocation of administrative enforcement in mainland China has the feature of “dual-track system”, i.e., enforcement by administrative organs and enforcement by the people’s courts upon applications of administrative organs. Article 13 of the Administrative Coercion Law provides that“Administrative enforcement shall be set by law. Where enforcement by administrative organs is not provided for by law, the administrative organ making the relevant administrative decision shall apply to the people’s court for enforcement.” This is what mainland academics often said, i.e., “taking enforcement by the people’s court upon application as the principle and autonomous enforcement by administrative organs as an exception”. Currently, only over 20 laws and administrative regulations have provided for enforcement by administrative organs on their own initiative, for example, the Customs Law, the Law Concerning the Administration of Tax Collection, and etc. In this connection, there exist primarily two problems. The first problem concerns the cleanup of administrative regulations. Under Article 13 of the Administrative Coercion Law, administrative enforcement can only be set by law. Then, the “imposition of overdue fines” stipulated in the current 14 administrative regulations and the “performance on behalf of the party concerned” in matters concerning traffic safety, environmental pollution control and natural resources protection prescribed in the 19 administrative regulations should be deemed invalid. The second problem concerns the understanding of Article 44 and paragraph 3, Article 46 of the Administrative Coercion Law. Article 44 thereof states that “For an illegal building, structure or facility, among others, which needs to be dismantled by force, an administrative organ shall make an announcement to set a time limit for the party concerned to dismantle it. If the party concerned fails to apply for administrative reconsideration or lodge an administrative lawsuit within the statutory time limit, and does not dismantle it, the administrative organ may forcibly dismantle it according to law.” Paragraph 3, Article 46 thereof provides that “An administrative organ without the administrative enforcement power shall apply to the people’s court for enforcement. However, if the party concerned fails to apply for administrative reconsideration or lodge an administrative lawsuit within the statutory time limit, and still does not perform the relevant decision after being prompted, the administrative organ which has taken the measure of seizure or impoundment in the process of administration may auction the seized or impounded properties according to law for offsetting the fine.” This“however” clause is in effect an exception to the principle of application to the people’s court for enforcement. That is, the Administrative Coercion Law recognized the limited enforcement power of administrative organs in enforcing the demolition of illegal constructions and pecuniary payment obligations.
E. Public participation in the setting of administrative coercion
Article 14 of the Administrative Coercion Law provides that “In drafting a law or regulation, if administrative coercion is to be set, the drafting entity shall hear opinions in such forms as a hearing and a demonstration meeting, and explain the necessity of such administrative coercion, the possible impacts and the solicitation and adoption of opinions to the organ making the law or regulation.” As for the procedural regulations on the setting of administrative coercion, the Administrative Coercion Law provides for two methods. The first is about the regulation before the setting, i.e., public participation in the setting of administrative coercion. The second concerns regulation after the setting, i.e., post-legislation evaluation of the implementation of administrative coercion. Such provisions not only fully reflect the spirit of democracy and concept of participation of the Administrative Coercion Law but also effectively ensure that the setting of administrative coercion is of acceptability and feasibility.
F. The procedures for implementing administrative coercion
Both the procedures for implementing administrative coercive measures and procedures for administrative enforcement reflect the basic requirement of the principle of due process of law. With respect to the implementation procedures for administrative coercive measures, the Administrative Coercion Law devised two procedural rules: general procedures and emergency procedures. The general procedures include six steps: (1) Evaluating whether there is the need to take administrative coercive measures; (2) Before execution, a report on execution shall be submitted to the person in charge of the administrative organ and an approval of execution shall be obtained; (3) An administrative coercive measure shall be implemented by two or more law enforcement personnel of the administrative organ and law enforcement identity certificates shall be produced; (4) The party concerned shall be notified to be present and notified on the spot of the reasons and basis for taking the administrative coercive measure and the rights of and remedies available to the party concerned according to law; (5) The statements and arguments of the party concerned shall be heard; (6) On-site transcripts shall be made. Decisions on administrative coercive measures shall be made in accordance with the transcripts. If any administrative coercive measure is implemented on the spot as needed in case of emergency, the law enforcement personnel of an administrative organ shall report it to the person in charge of the administrative organ and go through the approval formalities within 24 hours, which is the only difference between emergency procedures and general procedures.
As regards procedures for administrative enforcement, the administrative organ with the administrative enforcement power shall conduct enforcement according to the following four steps: (1) the administrative organ shall prompt the party concerned to perform obligations before making a decision on enforcement; (2) the administrative organ shall fully hear the opinions of the party concerned, guarantee his or her right to make statements and arguments; (3) where, after being prompted, the party concerned still fails to perform an administrative decision within the prescribed time limit without any justifiable reason; (4) the administrative organ may make a decision on enforcement. Generally, administrative organs shall not conduct administrative enforcement at night or on a statutory public holiday, except for emergency. In addition, administrative organs shall not force the parties concerned to perform the relevant administrative decisions by such means as cutting off the supply of water, electricity, heating or gas for the living of residents. An administrative organ which applies to the people’s court for enforcement shall meet the following requirements: (1) the administrative organ has no enforcement power and has performed its obligation of prompting; (2) the administrative organ applies to the people’s court for enforcement; (3) the court conducts documentary examination of the applications; (4) the court makes a ruling on whether to conduct enforcement. In case of emergency, to guarantee public security, an administrative organ may apply to the people’s court for immediate enforcement.
G. Enforcement reconciliation
The establishment of the system of enforcement reconciliation guaranteed the enforcement of administrative decisions and reduced social conflicts, which is in accordance with the requirement of constructing a harmonious socialist society. In this connection, Article 42 of the Administrative Coercion Law provides that “In conducting administrative enforcement, an administrative organ may reach an enforcement agreement with the party considered, provided that no harm is caused to the public interests and the legitimate rights and interests of others. The enforcement agreement may be performed by stages; and if the party considered has taken remedial measures, the imposed fine or late fee may be reduced or waived. An enforcement agreement shall be performed. If the party concerned fails to perform the enforcement agreement, the administrative organ shall resume enforcement.”
H. The remedies of administrative coercion
Whether it is a decision on administrative coercive measures or a decision on enforcement made by an administrative organ with enforcement power, they are all specific administrative acts and the party concerned can apply for administrative reconsideration or file for administrative litigation, which is a development to the administrative reconsideration law and administrative procedure law. Item 2 of paragraph 1 of Article 6 of the Administrative Reconsideration Law provides that anyone who refuses to accept the decisions made by an administrative organ on such administrative coercive measures as restriction of personal freedom or the seizure, impoundment or freezing of properties, may file an application for administrative reconsideration. Item 2 of paragraph 1 of Article 11 of the Administrative Procedure Law provides that anyone who refuses to accept such administrative coercive measures as restriction of personal freedom or the seizure, impoundment, freezing of properties, may file for administrative litigation. Seen from item 4 of paragraph 2 of Article 24, item 4 of Article 31, and item 4 of paragraph 2 of Article 37 of the Administrative Coercion Law, such remedies as administrative reconsideration and administrative litigation are not limited to administrative coercive measures or decisions on administrative coercive measures; rather, they apply to both.
Moreover, Article 8 of the Administrative Coercive Law provides: “A citizen, a legal person or any other organization shall be entitled to compensation for damage suffered from an administrative organ’s illegal administrative coercion. A citizen, a legal person or any other organization which has suffered damage from any illegal act of or expansion of extent of enforcement by the people’s court in the process of enforcement shall be entitled to compensation according to law.” This needs to be linked up with the State Compensation Law. Specifically, if an administrative organ infringes upon one’s rights, compensation shall be made in accordance with administrative compensation procedures; if the people’s court causes damage to a citizen, legal person or any other organization during the process of enforcement, judicial compensation procedures shall apply.
IV. Unfinished Tasks
It should be said that the Administrative Coercion Law is another important law regulating the exercise of administrative power after the Administrative Penalties Law and Administrative Licensing Law. However, although it has gone through deliberation on five occasions, restrained by the power game among various departments, there are still many problems that are exigent to be clarified.
A. The relationship between administrative enforcement and administrative execution
In terms of the scope of regulation, administrative enforcement is the greatest common devisor concerning state and local administrative execution system, which is almost undisputed. However, administrative enforcement is by no means the whole part of administrative execution system. Although the law does not rigidly provides that administrative organs should take plural execution measures, the administrative organs, seen from the function that administrative execution is to achieve administrative objectives, should have the discretionary space for using other alternative execution measures. “The employment of coercive measures is the last resort for an administrative organ, and therefore, the administrative organ must take all consequences into account before implementing coercive measures. The administrative organ shall not be accused of violating the law if, after consideration, making a decision on non-enforcement or suspension of enforcement. It is the best policy if the administrative organ can reach an agreement with the obligor and achieve the same result as that of obligations being performed without using coercive measures or persuade the obligor to perform his or her obligations voluntarily.”
Seen from the experience of comparative law, some countries put emphasis on the construction of a multi-level administrative execution system, consisting of voluntary performance, execution through agreement, administrative enforcement, civil and criminal litigation. Take Japan’s administrative execution system as an example, its focus is not merely on “coercion” but on the building of relevant systems in an omnibearing way so as to guarantee the performance of administrative obligations. In the author’s view, administrative execution should consist of the following four layers or defensive lines. The first defense is voluntary performance. Actually, a considerable number of administrative decisions are “executed” through the prompt of administrative organs, i.e., fines will be imposed if there is violation of laws, which is a psychological coercion. This prompt is a more effective executive measure than those prescribed by administrative execution law. Therefore, the legislative organ is not frugal in using this “executive measure”. The second defense is execution through agreement. That is, an administrative decision is executed through the means of private law without prejudice to public interest. The third defense is administrative enforcement. But there are also exceptions. Take France as an example, its administrative enforcement is limited to a very narrow scope. Romieu said that “If there is criminal punishment, there will be no administrative enforcement.” In theory, administrative execution can exist only when there is a need to guarantee abidance by law and no other judicial means are available to guarantee abidance by law. The fourth and also the last defense is courts. Specific methods include civil contempt of court, moving the case to the Attorney General’s Office, initiation of criminal prosecution by district attorneys, and etc. From the perspective of this plural administrative execution system, we need to acknowledge that the system of administrative execution should be of multi-layers, and administrative enforcement is neither the starting point nor the ending point of the administrative execution system.
B. The relationship between administrative coercion law and administrative investigation law
From the perspective of administrative process theory, administrative investigation is at the “upstream”of the administrative process, with its focus on collecting information or ascertaining facts, whereas administrative execution is at the “downstream” of the administrative process, with its emphasis on urging the party concerned to perform obligations in administrative law. In the past, people were accustomed to include mandatory data collection activities, i.e., interrogation and inspection, into administrative prompt coercion. For example, Professor Keiso Shobo alleges that “there is no material difference between prompt coercion and administrative investigation, which can be treated uniformly.” However, recently there is a tendency to separate activities of collecting materials and information from administrative prompt coercion and treat them as another administrative investigation, which also emerges in the Chinese mainland. The Administrative Coercion Law adopts the dichotomy of administrative coercive measures and administrative enforcement and does not provide for coercive investigation. However, seen from its temporary restriction of the rights of the person, the seizure, impoundment, and freezing of properties, and other administrative coercive measures (e.g., forced entrance into residence), and especially the means of preventing evidence from being destroyed, they are the same as administrative investigation in terms of functions. Both are designed to guarantee that the future legal facts which are the bases for making administrative decisions are at a controllable or stable state. For example, Article 21 of the third review draft of the Administrative Coercion Law provided that “An administrative organ, in inquiring under law such matters as the financial book, transaction records and business contact of an enterprise, shall not interfere with the enterprise’s normal business activities and keep confidential the enterprise’s trade secrets.” This provision was finally deleted from this Law.
From the perspective of legal text, the design mode of Article 2 of the Administrative Coercion Law drove subsequent legislations to a choiceless state and actually left a very narrow space for the future Administrative Investigation Law because the Administrative Coercion Law has set forth provisions on the overlaps between administrative investigation and administrative coercive measures (but they are not entirely equivalent to administrative investigation due to their inclusion of administrative prompt coercion). If in the future the Administrative Execution Law is to be enacted specially, the administrative organs should be invested with various means of implementation and at the same time comprehensive and meticulous procedures should be devised. However, the core of administrative execution system – administrative enforcement, has been prescribed in the administrative coercion law. As for the administrative implementing measures, there seems no need to make a law for them specially, and a special law is sufficient.
C. Administrative enforcement system and judicial reform
Given that the administrative management system reform and judicial reform are in progress, the administrative coercion law retains the original “dual-track approach” in administrative enforcement. At present, there are primarily three views regarding the allocation of administrative enforcement power in the academic world. (1) In principle, adjudications on and execution of administrative enforcement should be separated. An administrative organ, after making a decision on administrative enforcement, should apply to the people’s court for examination and adjudication. The execution of the administrative enforcement, however, should be left to the administrative organ. (2) Acknowledging that administrative organs have the power to conduct administrative enforcement. If an administrative organ, through its own enforcement, still cannot realize the content of an administrative act, or the enforcement concerns important personal rights or property rights of the party concerned, the administrative organ need to file an application with the court for enforcement. The court examines the application and renders a ruling on whether enforcement should be conducted. And the administrative organ is responsible for the execution of the administrative enforcement in accordance with the ruling made by the court. (3) Retaining the current form of application by administrative organs to the court, but the examination function and execution function previously undertaken by the court should be separated, with the court continuing to perform the examination function and the execution function going back to the administrative organs. Unified administrative execution organs shall be established. In the meantime, administrative decisions in particular areas shall be expressly set out by law and still be executed by administrative organs on their own. The concrete execution mode was deliberately left out in the process of enacting the Administrative Coercion Law, the purpose of which is to leave the court some space to explore and reform execution manners. The author believes that administrative enforcement power is the extension of execution of administrative acts, and is in essence administrative power, belonging to administrative organs. It is only in special circumstances that courts need to intervene. However, the principle of separation of adjudication and execution should be adhered to.
Another important jurisprudential debate involved in the filing of application to the people’s court for enforcement is the type of examination conducted by the people’s court. Should it be substantive examination or form examination? During the legislation process, some scholars logically argues for substantive examination because the mere examination of form will render the court ineffective in the supervision of administrative organs; moreover, the court may also become an executive organ affiliated to the administrative organs, whose execution may even be less convenient and speedy than the self-execution by the administrative organs. But other scholars think differently, contending that it seems more proper for the court to stick primarily to form examination. In this connection, Article 57 of the Administrative Coercion Law provides that “The people’s court shall conduct documentary examination of the application of an administrative organ for enforcement”, which, however, is not clear and definite enough in the expression of the examination points. Article 55 thereof only lists five requirements on materials. At the beginning of 2011, after the promulgation of the Regulation on Expropriation of Houses on State-owned Land and Compensation, the Supreme People’s Court issued the Emergency Notice on the Prevention of Malignant Events Arising from Forced Land Expropriations and Forced House Demolition and Relocation. Article 2 thereof expressly states that “The courts must strictly examine the legality of the basis of enforcement, and strictly obey the standards in accepting and examining applications filed by administrative organs for the enforcement of specific administrative act such as land acquisition and adhere to the principle of examination by law and shall not deviate from a fair and neutral position by yielding to illegal or improper administrative acts. Applications which fail to meet the statutory requirements for entertaining a case and fail to go through the social stability risk assessment shall be sent back to the applicants or be dismissed; in cases that compensation is not in place or a specific administrative act, though lawful, is obviously unreasonable or improper for enforcement, no enforcement ruling shall be made.” This provision seems to indicate that the Court pursues an attitude of substantive examination. In the author’s view, form examination and substantive examination are not scientific expressions. To strike a balance between administrative power and civil rights as well as between administrative power and judicial power, the court should take form legality examination as the principle and substantive legality examination as the exception.
In addition, the words “decisions on administrative coercive measures” or “administrative coercive measures”are still in use in the administrative reconsideration law and administrative procedure law. Therefore, during the revision process of administrative procedure law and administrative reconsideration law, the legislators need to take the following issues into consideration: how to link up with the administrative coercion law in the choice of words and how to pin down the examinationality of administrative coercive measures and administrative enforcement decisions. These are the unfinished tasks faced by the administrative execution system in the Chinese mainland.