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Measures for Implementation on Maritime
Administrative Punishments
Decree [2002] No.15 of the the Ministry of Land Resources
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 toArticle 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 inArticle 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 ofArticle 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 toArticle 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 effected.
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 enter into force as of March
1, 2003. |
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