Implementing Measures for Maritime Administrative Punishments 2003
Chapter I General Provisions
Article 1 The present Measures have been formulated on the basis of the Law of the People's Republic of China on Administrative Punishments and other relevant laws and administrative regulations for the purpose of regulating the maritime administrative punishment acts and defending the lawful rights and interests of the entities and individuals.
Article 2 Where any entity or individual violates any of the maritime laws, regulations or ministerial rules concerning the use of the sea areas, the protection of the maritime environment, the laying of sea-bed cables and pipelines, and the scientific research and management of foreign-related seas, and thus the executing authority of the maritime administrative punishments needs to mete out maritime administrative punishments according to law, the present Measures shall apply.
Article 3 The department of maritime administration of the people’s government on various levels above the county level is the organ for enforcing maritime administrative punishments according to law (hereafter referred to as “enforcing organ”).
Where a maritime supervision section is established within the enforcing department, the work of maritime administrative punishments shall be specifically undertaken by the Chinese maritime supervision section affiliated thereto. Where no maritime supervision section has been established therein, the work shall be implemented by the maritime administration department on the same level.
The Chinese maritime supervision organs enforce maritime administrative punishments in the name of the maritime administration department on the same level.
Article 4 The enforcing authorities on higher levels shall be entitled to supervise and put right the maritime administrative punishments implemented by the enforcing authorities on lower levels.
The higher-level Chinese maritime supervision authorities may, upon the consent of the enforcing authority on the identical level, supervise, in the name of the enforcing authority on the identical level, the maritime administrative punishments implemented by the lower enforcing authorities, and assist the government supervision departments to investigate in to relevant administrative liabilities according to law.
Chapter II Jurisdiction
Article 5 The maritime administrative punishments shall be under the jurisdiction of the enforcing organ of the place where the violation takes place, unless it is otherwise provided for in any law or regulation.
Article 6 In case it is not clear or it is impossible to find out where the violation has taken place, and there are clear provisions in any law or regulation, the jurisdiction shall be determined according to such provisions. If there are no clear provisions in any law or regulation, the jurisdiction shall be determined according to the provisions of ministerial rules and the division of power and duties.
Article 7 In case the parties concerned have disputes over the jurisdiction, they shall report to the enforcing authority on a higher level than both parties to designate which party shall have jurisdiction.
Article 8 Where any of the maritime administrative punishments that should be enforced by a lower level enforcing authority, but it deems it necessary for the enforcing authority on a higher level to exercise jurisdiction, it may report to the next higher enforcing authority to decide.
Article 9 The enforcing authorities may transfer the maritime administrative punishments that do not fall within their respective jurisdictions to the enforcing authorities that have jurisdiction over the case or other relevant administrative organs by formulating letters of transferring cases.
Article 10 In case any violation has constituted a crime, it shall be delivered to the judicial organs according to law.
Chapter III Simplified Procedures
Article 11 Where a violation meets both of the conditions as mentioned below, the corresponding decision of maritime administrative punishments may be made on-spot by applying the simplified procedures:
a. The facts about the violation are conspicuous and are supported with irrefutable evidences, and the violation is not serious;
b. The maritime administrative punishment is a fine of not more than 50 yuan imposed upon an individual or not more than 1,000 yuan imposed upon an entity or is a warning according to the provisions of the maritime laws, regulations or ministerial rules.
Article 12 When meting out maritime administrative punishments on the spot by apply the simplified procedures, the maritime supervisors shall observe the following procedures:
a. Showing their certificates of law enforcement to the parties concerned;
b. Finding out the facts about the violation on the spot, collecting and keeping all necessary evidences, making written records which shall be signed or sealed by the parties concerned after verification;
c. Informing the parties concerned of the facts about violation, the grounds for meting out punishments, and that they are entitled to make statements and defenses;
d. Listening to the statements and defenses of the parties concerned, and reviewing the facts, reasons and evidences submitted by the parties concerned, unless the they have given up their right of making statements and defenses;
e. Filling in the On-spot Decision on Maritime Administrative Punishments formulated in preset formats and having a predetermined number, and delivering it to the parties concerned on the spot after it is signed or sealed by the maritime supervisors.
Chapter IV Ordinary Procedures
Article 13 All other maritime administrative punishments other than those that can be meted out on the spot according to Article 11 of the present Measures for violations of relevant provisions shall be placed on files as cases for investigation.
Maritime supervisors shall fill in a form of placing a maritime violation on file as a case for approval, and the case shall be established after approval is granted.
Article 14 Any maritime supervisor that is directly interested in the case shall withdraw.
Article 15 There shall be no fewer than two maritime supervisors present in the investigation of cases or in inspections, who shall show their certificates of law enforcement to the parties concerned. They may make investigations or inspections in any of the ways as described below:
a. Entering into the scene of violation to make surveys and inspections, consulting or duplicating relevant materials, and making video records or taking pictures of the scene of violation. Written records shall be made for the relevant surveys and inspections, which shall be signed or sealed by those under the survey or inspection or any other witnesses;
b. Inquiring the parties concerned or the witnesses or any other people concerned, and making written records of the inquiries, which shall be signed or sealed by those under investigation upon verification. In case any of the people under investigation refuses to sign or seal, it shall be remarked by not fewer than two maritime supervisors who shall put their signatures or seals on the written records;
c. The professional or technical matters such as measuring, monitoring, testing or authenticating, etc. may be entrusted to the eligible institutions to make relevant reports. Such report may be used as evidences.
Article 16 Maritime supervisors may, in the process of collecting evidences, employ the method of taking samples.
Article 17 If, in the process of collecting evidences, any evidence may disappear or would be difficult to obtain thereafter, the maritime supervisors may, upon approval, register the evidences for keeping beforehand. A notice of Registering Evidences for Keeping Beforehand shall formulated for the evidences that are registered for keeping beforehand and be serviced to the parties concerned.
The evidences that are registered for keeping beforehand shall be handled within seven days as of the day when they are registered keeping.
During the term when the evidences are registered for keeping, neither the parties concerned nor any other relevant personnel may destroy or transfer any of the evidences.
Article 18 In the process of taking samples for evidences or registering evidences for keeping beforehand, the parties concerned shall be present on the scene. Where the parties concerned are not present on the scene or refuses to be present on the scene, the maritime supervisors may invite relevant persons to bear witness on the scene.
Article 19 Maritime supervisors shall, within five days after the investigations are completed, submit a report of investigating maritime violations, and suggesting punishments according to the results of investigation.
Article 20 The persons in-charge of the enforcing authorities shall review the investigation results and suggestions for punishment, and make decisions as described below by taking the different circumstances into consideration:
a. If the facts about the violation are well grounded, maritime administrative punishments shall be meted out according to the seriousness and the specific situation of the violation;
b. If the violation is not serious and may be exempt from maritime administrative punishments according to law, no maritime administrative punishment will be meted out;
c. If the facts about the violation are not well grounded, no maritime administrative punishment may be meted out;
d. If the violation has constituted any crime, it shall be delivered to the judicial organs for handling.
Article 21 If a case for which maritime administrative punishments are to be meted out is complex in circumstances or is a serious violation as provided for in Article 41 of the present Measures, the enforcing authorities shall arrange for a joint hearing of the case.
Article 22 Before making a decision of maritime administrative punishments, the enforcing authorities shall inform the parties of the facts, reasons and grounds for meting out the punishments and the decision of suggested maritime administrative punishments, and shall inform the parties concerned that they are entitled to make statements and appeals.
Article 23 To enforce a maritime administrative punishment, a written decision of maritime administrative punishment shall be formulated according to the provisions of Article 39 of the Law of the People's Republic of China on Administrative Punishments.
Article 24 If, in the investigation of maritime violations by applying the ordinary procedures, it would be difficult to enforce a maritime administrative punishment unless it is enforced on the spot or if it is so requested by the parties concerned, the maritime supervisors may make a decision of maritime administrative punishment and enforce it on the spot. However, relevant written formalities shall be made up within five days after they come ashore.
Before making a decision of maritime administrative punishment, the maritime supervisors shall inform the parties concerned on the spot that they are entitled to make statements and appeals.
The present Measures are not applicable to the investigation of serious maritime violations.
Chapter V Procedures of Hearing
Article 25 The enforcing authorities shall, prior to making any decision of maritime administrative punishments concerning any serious maritime violations according to Article 41 of the present Measures, inform the parties concerned that they are entitled to request for holding hearings. Where any of the parties concerned requests for holding a hearing, a hearing shall be held.
The parties concerned shall file their applications for holding hearings within three days after being informed. In case they fail to file any application within the time limit, it shall be deemed that they have waived their right.
Article 26 The notice of maritime administrative punishment shall be serviced to the parties concerned seven days before a hearing is held.
Article 27 The hearings shall be presided by the persons designated by the enforcing authorities.
None of the maritime supervisors that handle cases (hereafter “case-handling supervisors”) or any person who has any direct interest in the cases involved may not preside the hearing concerned.
Article 28 Where any of the parties concerned believes that the presider of the hearing has direct interests in the case, he is entitled to request him to withdraw. Whether the presider is to withdraw or not shall be subject to the decision of the person-in-charge of the enforcing authority.
Article 29 The parties concerned, the case-handling supervisors and the third parties that may have interests in the conclusion of case may participate in the case hearings.
The parties concerned may also entrust one or two agents to appear at the hearing on their behalf. The entrusted agents shall, prior to the holding of the hearing, submit a power of attorney.
Article 30 A case hearing shall be held in public unless any of the state secrets, commercial secrets or personal privacies is involved.
Article 31 A hearing shall be held according to the order as described below:
a. The presider announces the facts of the case and the disciplines of the hearing, verifies the identities of the participants, and inform the parties concerned of their rights and obligations, and declares the commencement of the hearing;
b. The case-handling supervisors present the facts of violation of the parties concerned, the evidences, grounds for punishments, and the suggestions for punishment;
c. The parties concerned or the entrusted agents thereof make statements or defenses concerning the facts of the case, present relevant evidences for cross-examination;
d. The presider of the case interrogates the case-handling supervisors, the parties concerned and witnesses with regard to the facts of the case, the evidences and legal grounds;
e. The case-handling supervisors, parties concerned or the entrusted agents thereof make their final statements;
f. The presider of the hearing announces the concluding of the case hearing.
Article 32 Written records shall be made for hearings. The written records shall bear the signatures or seals of the case-handling supervisors, the parties concerned or the entrusted agents thereof after verification.
The testimony of the witnesses in the written records shall be subject to the verification of the witnesses and bear the signatures or seals thereof.
The written records of hearing shall be subject to the examination and review of the presider of the case hearing, and shall bear the signatures or seals of the presider and the recorder.
Article 33 After a hearing is concluded, the presider of the hearing shall make a written comment with regard to the case facts, evidences, grounds for punishment and the suggested punishment.
Chapter VI Servicing
Article 34 The decisions of maritime administrative punishments shall be serviced to the parties concerned within seven days after they are made.
Article 35 The decisions of maritime administrative punishments shall be serviced directly to the parties concerned. If the party concerned is a natural person and if he is not present, the decision may be received by any of his adult family members that lives together with him. Where the party concerned has designated any one to receive the decision on his behalf, it shall be serviced to the designated person. If the party concerned is an entity, it shall be serviced to the legal representative of the entity or the major person-in-charge of the entity or any person of the entity who take care of receiving letters.
The date signed by the party concerned, the adult family member that lives together therewith, the designate person, the legal representative of the entity, the major person-in-charge of the entity or the person who takes care of receiving letters on the receipt shall be the date of service.
Article 36 Where any of the parties concerned refuses to receive the decision of maritime administrative punishments, the serviceman shall invite relevant persons to be present at the scene, explain the situation and mark the refusal and date on the service receipt, have it signed by both the serviceman and the witnesses, and leave the decision of maritime administrative punishment to the person who takes care of receiving letters or at the dwelling place of the person subject to punishment, and the service shall be deemed as having been effected.
Article 37 Where it is difficult to service the decision of maritime administrative punishments directly, it may be serviced by mail.
In the case of service by mail, the date marked by the party concerned on the receipt shall be the date of service. Where the date as marked on the service receipt is not identical to the date as marked on the receipt of the registered letter, or if the service receipt fails to be sent back, the date as marked on the receipt of the registered letter shall be the date of service.
Article 38 In case any decision of maritime administrative punishments cannot be serviced by any of the ways as described in Articles 35, 36 and 37, it may be serviced by public announcement. Sixty days after the public announcement is made, it shall be deemed that the service has been affected.
In the case of service by public announcement, the reasons and process shall be recorded.
Chapter VII Supplementary Provisions
Article 39 In case there are no corresponding provisions in the present Measures, the relevant provisions of the Law of the People's Republic of China, the Law of the People's Republic of China on Administrative Reconsideration, and the Administrative Procedure Law of the People's Republic of China, etc. shall be implemented.
Article 40 The basic formats of the instruments of maritime administrative punishments shall be subject to the uniform formulation of the administrative department of seas under the State Council.
Article 41 A serious maritime violation refers to any of the cases of maritime administrative punishment as described below:
a. Ordering the stop of an offshore operation of laying seabed cables and pipelines that has been approved, ordering the stop of foreign-related maritime scientific research activities that have been approved, ordering the stop of the construction or production or use of the maritime construction projects that have been approved, and the ordering the stop of any other operations that have been approved.
b. Canceling the permit for dumping wastes into the sea;
c. Writing off the certificates for using sea areas and withdrawing the right to use sea areas;
d. A maritime administrative punishment such as a fine of more than 5,000 yuan imposed upon a natural person or a fine of more than 50,000 yuan imposed upon an entity, etc.
Article 42 The present Measures shall take effect as of March 1, 2003.