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Discussion on Authorizing Nanjing MTR Corporation to Exercise Administrative Punishment Right by Local Laws and Regulations

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[Abstract]:
Wangjiandonglawyer StandingCommitteeoftheTenthMeetingofApril30,2014FifteenthdevelopedbytheNanjingPeople'sCongress,theStandingCommitteeoftheTwelfthPeople'sCongressofJiangsuProvinceapprovedatthetenthmee
Wang jian dong lawyer
 
Standing Committee of the Tenth Meeting of April 30, 2014 Fifteenth developed by the Nanjing People's Congress, the Standing Committee of the Twelfth People's Congress of Jiangsu Province approved at the tenth meeting of May 28, 2014, from Article 6 of the Nanjing Rail Transit Regulations (hereinafter referred to as the "Regulations on Railways"), which came into effect on July 1, 2014, stipulates: "The administrative departments of urban housing and urban and rural construction shall be responsible for the supervision and administration of the construction of rail transit in this Municipality, The administrative department of transport shall be responsible for the supervision and administration of the operation of the rail transit in this Municipality, and the administrative department of urban housing and urban and rural construction and transportation may entrust the administrative organ of rail transit facilities to impose administrative penalties. The rail transit business unit established by the Municipal People's Government shall be responsible for the city rail transit And the implementation of administrative penalties in accordance with the provisions of this Ordinance. "Article 38 provides that:" in the station or other rail transit facilities, the following restrictions on rail transit public places and facilities, environmental health, operational order Act: (a) without the consent of the rail transit business unit, the distribution of printed matter or engaged in sales activities (3) stacking debris or parking vehicles; (4) smoking, spitting, drowning, spaghetti, throwing peel, scraps of paper and other waste; (five) random painting, characterization, posting or hanging items; (7) the use of fuel, gas, and a scooter with a volume or weight exceeding the passenger's code; (8) carrying inflatable balloons; (d) the use of fuel, , bicycle (with foldable bicycle) stop, ride; (ix) carrying live birds and cats and dogs and other pets may hamper rail operations animals (except guide dogs blind) stop, ride; ( (11) other acts affecting the public places and facilities of the rail transit, environmental hygiene, and the order of operation. "Article 58 provides that" a violation of the provisions of the third eighteen first, the second, the third paragraph by the rail transportation business units ordered to make corrections, and impose two hundred yuan on the unit for more than one thousand yuan, more than thirty yuan for individuals sentenced to two hundred yuan The following shall be fined The provisions of Article X of eighteen items to the fourth, the rail transportation business units ordered to correct and given a warning or not more than 200,000 yuan a fine of 200 yuan. "
 
According to the Nanjing Metro Group Co., Ltd. (hereinafter referred to as Nanjing Metro Company) official website (http://www.njmetro.com.cn/about.aspx) show Nanjing subway transport infrastructure protection office was established in 2008 December 2, it is Nanjing Metro Corporation is directly under the level of units, the inquiry of the national organization code management center website, Nanjing Metro traffic protection office has not been authorized by the authority to give a unified social credit code, so it can be regarded as the Nanjing Metro Corporation directly under the Units, foreign law should be undertaken by the Nanjing Metro Corporation. Nanjing Metro Transport Facilities Protection Office in accordance with the relevant provisions of the "Regulations of the Railways" to carry out commissioned by law enforcement, authorized law enforcement, ticket inspection work, its main responsibility is to entrust law enforcement: responsible for the inspection of subway protected areas; The development of subway facilities safety protection program to review and carry out safety inspection of the construction site; not required to develop, the implementation of rail transit facilities protection program or refuse to track the traffic management unit to carry out administrative supervision of administrative law enforcement work, can be 20,000 yuan More than 50,000 yuan the following fine; the second is authorized to law enforcement: in accordance with the "Regulations" authorized to damage the rail transit facilities, disrupt the order of rail transit operations and other hazards to the safety of rail traffic to discourage and stop, and under the "Regulations" Authorized to carry out administrative law enforcement work, the illegal "track regulations," the perpetrators can be a warning or more than 20 yuan a fine of 100 yuan; subway station entrance, station square to investigate the illegal acts and inform the relevant administrative departments, with Do remediation work, the scope of law enforcement Iron curtain doors for the sector, the shutter outside the area by the relevant functional departments responsible for the occurrence of violations within the shutter doors by the subway is responsible for administrative penalties; Third, the ticket inspection according to the "Regulations" is responsible for maintaining the normal order of the ticketing management, Ticket management requirements of the conduct of ticketing audit work; Fourth, with the municipal government departments concerned to do the work of law enforcement supervision.
 
According to the "Regulations of Railways" and the Nanjing Metro Corporation, Nanjing Metro Corporation has the power to entrust law enforcement and authorized law enforcement under the provisions of the Regulations on Railways, and Nanjing Metro Corporation is the State-owned Assets Supervision and Administration Commission of Nanjing Municipal People's Government, Zijin Trust Co., Ltd. Company, Xiamen International Trust Co., Ltd., National Development Fund Co., Ltd. four shareholders of the establishment of corporate legal person, which is essentially a corporate legal person under the authority of the local laws and regulations to exercise the right to administrative punishment, I think the exercise of administrative penalties by the legal person is not appropriate:
 
First, the "Administrative Punishment Law" Article XVII: "laws and regulations authorized by the management of public affairs functions of the organization can be within the scope of statutory authority to implement administrative penalties." Article XVII: "Administrative organs in accordance with laws and regulations Or administrative regulations may be entrusted to other organizations or individuals to impose administrative penalties. "Article 19 provides that" the entrusted organization (hereinafter referred to as the "organization") shall, in accordance with the provisions of Article 19 of these Law, (2) having a staff member who is familiar with the relevant laws, regulations, rules and business; (3) Where a technical inspection or technical appraisal is required for the illegal act, it shall meet the following requirements: (1) The business organization that manages the public affairs according to law; Should have the conditions to organize the appropriate technical inspection or technical appraisal. "Although for a long time, it is generally believed that enterprises can be as" Administrative Punishment Law "Article 17 of the organization under the laws and regulations authorized to exercise administrative penalties, but personally "Administrative Punishment Law" Article XVII of the organization should not be expanded to explain The conditions that should be met by the organizations entrusted with law enforcement stipulated in Article 19 of the Administrative Punishment Law shall be strictly limited to those institutions that have the functions of managing public affairs. At present, the vast majority of enterprise legal persons shall, in accordance with the Company Law of the People's Republic of China, The establishment of the profit-oriented organization, the Nanjing subway business scope for the urban rail transit project and along the resources of investment and construction; rail transport operations, resource management and asset management, land development, its profitability organization should not be The administrative authority of the administrative authority, we can not simply put the scope of business for the provision of public services simply understood as the management of public affairs.
 
Second, according to the traditional theory of the Constitution and the law, the state's executive power can only be exercised by the administrative organs and their civil servants. The administrative penalty power is an important part of the administrative power. It is an unfavorable punishment for the personal rights and property rights of the parties. focus on safeguarding the interests of the parties, it should be exercised by the executive authorities and their civil servants, therefore, impose administrative penalties executive authorities is a fundamental principle, to weaken and restrict the right to authorize administrative penalties to other organizations. "The CPC Central Committee and State Council on the classification of public institutions to promote the reform of the guidance" (in the hair [2011] No. 5) clearly on the basis of clean-up norms, in accordance with the social function of existing institutions divided into administrative functions, engaged in production and business activities and Engaged in three categories of public service. On the administrative functions, and gradually put its administrative functions under the administrative organs or to administrative institutions; engaged in production and business activities, and gradually to the enterprise; to engage in public service, and continue to retain it in the business unit sequence, Strengthen its public welfare attributes. In the future is no longer approved the establishment of administrative functions of the institutions and engaged in production and business activities of the institutions. From the guidance of the reform of the institutions can also be seen that the state will be administrative functions assigned to the administrative organs, to restrict or reduce the administrative functions of administrative units, with the rule of law to promote the process, the administrative penalty should be authorized to exercise Management of public affairs functions of the institutions, non-profit organizations, and should not be profitable business.
 
To sum up, personally think that from the surface, the local laws and regulations authorized enterprises to exercise the right of administrative punishment and the "Administrative Punishment Law" does not contradict the provisions of the enterprise as an organization can be the administrative authority of the subject, but from the "Administrative Punishment Law" The spirit of the legislative and internal logic, the idea of ​​the rule of law, the idea of ​​governing the country according to law, the functional orientation of the enterprise, the enterprise should not be the subject of the administrative penalty law, or the subject of the administrative penalty power, hoping that the legislature can This issue, in the amendment of the "Administrative Punishment Law" to make a clear provision or to make an authoritative legislative interpretation of this issue.