Opinions on Further Regulating the Formulation and Administration of the Administrative Discretion Benchmarks

With a view to strengthening administration by law, improving the administrative discretion benchmarks in this Municipality (hereinafter referred to as "administrative discretion benchmarks"), raising the ability to exercise administrative discretion in a standardized manner, more effectively protecting the legitimate rights and interests of market entities and the public, and effectively maintaining the market order of fair competition, we hereby put forward the following Opinions on further regulating the formulation and administration of the administrative discretion benchmarks.

I. General Requirements

Under the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, the spirit of the 20th National Congress of the Communist Party of China shall be comprehensively carried out, Xi Jinping Thought on the Rule of Law shall be implemented in an in-depth manner, the decisions and deployments of the CPC Central Committee and the State Council as well as the work requirements of the CPC Shanghai Municipal Committee and the Municipal People's Government shall be followed out diligently, and the principles of a unified legal system, due process, fairness and justness, efficiency, and convenience for the people, shall be adhered to. The administrative discretion benchmarks in the fields of administrative punishment, administrative licensing, administrative expropriation and requisition, administrative confirmation, administrative payment, administrative coercion and administrative inspection shall be further improved and perfected on the basis of the current working system that makes it universally possible to regulate administrative discretion. The exercise of administrative discretion shall be regulated, so as to achieve the comprehensive, scientific and reasonable and whole and complete administrative discretion benchmarks, with unified standards, standardized procedures and strong supervision. The level of administration by law shall be further improved, which provides a strong legal guarantee for promoting the modernization of urban governance system and governance capacity and accelerating the construction of a socialist modern international metropolis with world influence.

II. Establishing a Strict Responsibility System for Setting up Administrative Discretion Benchmarks

Administrative discretion benchmarks refer to the specific law enforcement criteria and standards formed by the administrative organs and organizations authorized by relevant laws, rules and regulations (hereinafter jointly referred to as "administrative organs") upon detailed quantification of fundamental provisions in laws, rules and regulations, or upon grading the elastic enforcement power and the wide discretion, subject to the different facts and circumstances involved in the discretion, taking into consideration the actual situation of the administration of their localities and departments.

1. Clarifying the Responsibilities for the Formulation of the Discretion Benchmarks

The municipal administrative organs shall be responsible for formulating the discretion benchmarks of administrative law enforcement matters (hereinafter referred to as "law enforcement matters") in their system. Where the law enforcement matters are implemented in the name of the Municipal People's Government, and the discretion benchmarks shall be drafted by the municipal administrative organ in charge of the law enforcement matters and reported to the Municipal People's Government for issuance. Where the power of law enforcement is relatively entrusted to other departments, the discretion benchmark shall be formulated by the municipal administrative organ in charge of the law enforcement matters. Where law enforcement matters are transferred to subordinate departments for implementation, the discretion benchmark shall be formulated by the municipal administrative organ in charge of the law enforcement matters before the act of transferring; Among them, if the administrative punishment matters are transferred to the town/township people's governments and sub-district offices, the discretion benchmark shall be formulated by the Municipal Urban Management and Law Enforcement Bureau in conjunction with the relevant municipal administrative organs. The municipal administrative organs may choose a specific area to carry out the pilot project of the integration of the discretion benchmarks in the Yangtze River Delta, and formulate and implement the discretion benchmarks different from those in other areas of this Municipality in the pilot area.

2. Specifying the Authority and Procedures for Formulating the Discretion Benchmarks

The organ formulating the discretion benchmark (hereinafter referred to as "enacting organ") may, according to their work needs, formulate administrative discretion benchmarks in accordance with law. The discretion benchmark shall conform to the provisions of laws, rules and regulations and the requirements of the State and this Municipality on the exercise of administrative discretion, subject to full research and demonstration, and shall ensure that the specific law enforcement standards are scientific, reasonable, and effective. Administration of procedures such as the enactment and issuance, and recordation of discretion benchmarks shall be strengthened, and the requirements of the General Office of the State Council on the enactment and issuance of discretion benchmarks shall be fully implemented. Work systems such as guidelines for government services shall be well connected with the discretion benchmarks.

III. Precisely Specifying the Contents of Administrative Discretion Benchmarks

1. Promoting Appropriate Discretion in Administrative Penalties

Where laws, rules or regulations provide a choice of whether to punish or not, whether to impose a combined penalty and a substitutional punishment, provide a large punishment range, give only general provisions on conditions for no punishment, exemption from punishment, lesser punishment, mitigated punishment and heavier punishment, or do not specify the specific circumstances of minor, relatively minor, relatively serious and serious and particularly serious circumstances, the enacting organ shall refine and quantify the illegal circumstances and the corresponding punishment standards, and formulate the discretion benchmarks.

While refining the illegal circumstances and punishment standards, the discretionary factors such as the degree of fault of the parties, the means and methods of illegal acts, the scale, the number of occurrences, the duration, the amount of money involved, the harm target, the harm consequences, the correction, and the cooperation in the investigation shall be scientifically determined according to the characteristics of illegal acts; the illegal circumstances shall be graded in a hierarchical order from light to heavy according to the discretionary factors, and the punishment shall be graded accordingly, so as to form a discretionary standard, by which the gravity of the punishment corresponding to the severity of the illegal circumstances. In addition to the direct application of the national level discretion benchmarks or with a small scale of punishment discretion, the multi-factor comprehensive discretion model shall be actively promoted, and the severity of the illegal act shall be comprehensively evaluated according to more than three discretionary factors, and penalties shall be commensurate with the severity of illegal act. While refining the conditions for no punishment, exemption from punishment, lesser punishment, mitigated punishment and heavier punishment, no punishment, exemption from punishment and lesser punishment shall be a statutory situation and be refined in strict accordance with the legal conditions; mitigated punishment and heavier punishment shall include statutory circumstances and discretionary circumstances, among which the statutory circumstances may be refined according to law and the discretionary circumstances may be refined in light of the actual circumstances.. While there is a choice of whether to punish, whether to impose a combined penalty and the types of punishment, if the penalty provisions stipulate that it may be selected, the specific circumstances of punishment and no punishment, the specific circumstances of single punishment and combined punishment, and the specific circumstances of selecting different kinds of punishment shall be specified. While refining the punishment range, if the punishment range stipulated in the penalty provisions is relatively large, it shall be reasonably graded or the method for calculating the specific punishment value shall be specified.

2. Promoting the Convenience and Efficiency of Administrative Licensing

Where laws, rules, regulations, and decisions by the State Council have only stipulated in principle the conditions, application materials and procedures for new applications, alteration, extension, withdrawal, revocation and cancellation of administrative licenses, the enacting organ shall detail and quantify the relevant contents and form the discretion benchmarks.

While refining processing conditions and application materials, specific conditions and application materials shall be refined in accordance with the text meaning of legal norms and with reference to common administrative practices, and shall not increase or raise conditions or collect unnecessary materials or collect materials repeatedly; In principle, the applicant shall not be required to submit the certification materials issued by the handling organ or its subordinate units, the materials collected in the early administration of the handling organ, and the materials the information of which can be obtained through data sharing, except that the original certification materials need to be recovered according to law or the applicant’s relevant situation is liable to change; If the application materials have been included in the electronic license database of this Municipality and can be retrieved according to law, the electronic license shall be retrieved, and the applicant shall not be required to submit paper materials separately. If the quota of licenses is limited by the superordinate law and “granting licenses in the order of acceptance” is not applicable according to law, the methods, standards and basis for granting licenses from a number of qualified applicants shall be determined clearly. While refining the procedures, the working procedures and steps in accordance with the requirements of the administrative licensing law shall be refined, so as to constantly optimize the process and improve efficiency. If there is no legal basis, processes such as reporting to the superior authorities for approval and consulting other units shall not be added, and the applicant shall not be required to accept paid services from third-party institutions. If the administrative organ organizes the review and verification, the working rules shall be specified. The specific requirements for guaranteeing the right to state and the right to defense of the applicants and interested parties shall be specified.

3. Promoting Fair and Reasonable Administrative Expropriation and Requisition

The implementation of administrative expropriation and requisition shall strictly abide by the provisions of laws, rules and regulations. Where the administrative expropriation and requisition implemented according to law needs to refine the authority, standards and procedures of expropriation and requisition or the scope, quantity, amount, duration and compensation standards of expropriation and requisition property, the enacting organ shall follow the principles of law-based expropriation and requisition, fairness and openness, and respect for the property rights of administrative counterparts, so as to refine and quantify to form the discretion benchmarks. Among them, the discretion benchmarks for expropriation of houses on state-owned land shall be administrated by the Municipal Housing Administration Bureau, and the discretion benchmarks for expropriation of collective land and houses on it, other attachments, young crops, etc. shall be administrated by the Municipal Bureau of Planning and Resources, and the discretion benchmarks shall refine the specific requirements of various procedures and phases of expropriation, compensation and resettlement, so as to achieve full-process transparency and full disclosure of results; The discretion benchmarks for expropriation of non-state-owned property shall be administrated by the municipal competent administrative organ in charge of the relevant fields, and shall refine the specific circumstances of expropriation, the procedures for determining the scope, quantity and duration of expropriation of property and the procedures for determining the subject of expropriation, and specify the specific requirements for timely return, restitution, payment of fees and compensation.

4. Promoting the Fairness and Convenience of Administrative Confirmation

Where laws, rules and regulations only stipulate the application materials and procedures for administrative confirmation in principle, the enacting organ may refer to the relevant requirements of the administrative licensing discretion benchmarks and the relevant requirements of the superior authorities to formulate the discretion benchmarks in detail. At the same time, the examination standards of administrative confirmation shall be refined according to law and the time limit for handling shall be specified; If the procedure is not stipulated or only stipulated in principle in the superordinate law, and it is really necessary in practice, a review or reexamination procedure may be set up.

5. Promoting Normative and Efficient Administrative Payment

Where laws, rules and regulations only provide in principle the conditions, application materials, payment standards and procedures of administrative payment, the enacting organ shall refine and quantify them according to law and formulate the discretion benchmarks.

While refining the handling conditions and application materials, reference shall be made to the administrative licensing discretion benchmarks. For the administrative payment that is covered by the policy that directly favors the enterprises and the people and applies to direct and quick benefits, the application materials and their contents and sources shall be refined, and the measures to guarantee the qualified administrative counterparts equal right to receive the payment shall be refined. While refining the payment standards, the superordinate law only stipulates in principle the amount to be paid, a certain range or various calculation methods, or does not specify the payment content for other types of payment, the specific situation of payment and the corresponding payment content shall be refined according to law. While refining the procedures, the application route, application time limit, acceptance requirements, delivery time limit and delivery manner shall be specified. If the time limit and delivery manner are not specified in the superordinate law, in principle, the administrative organ shall directly deliver it to the applicant within 30 days from the date the payment decision is made; If a longer delivery time limit is applied or other delivery manners such as delivery by a third-party agency are adopted, the reasons shall be explained. While regulating the administrative payment commission, in principle, administrative payment shall be implemented by administrative organs themselves; If another administrative organ or a third-party institution is commissioned to implement it, the reasons and basis shall be explained and the department that undertakes the supervision duties within the commissioning organ and the supervision requirements shall be specified; No for-profit third-party institution may be commissioned to implement administrative payment.

6. Promoting Prudent and Well-regulated Administrative Coercion

The implementation of administrative coercion shall strictly abide by the provisions of laws, rules and regulations such as the Administrative Coercion Law. Where laws, rules or regulations only stipulate in principle the conditions, procedures and time limits of administrative coercion, the enacting organ may follow the principle of appropriate administrative coercion, and refine and formulate the discretion benchmarks according to the requirement of "achieving the administrative purpose in a way that causes the least harm to the parties".

In selection of the types of coercive measures, and the scope of their implementation, the sealing and seizure measures shall be selected in the order of sealing of property, seizure of property, sealing of facilities and sealing of places; The scope of implementation shall be determined in the order from small to large; Where it is really necessary to freeze deposits and remittances, the frozen amount shall be equivalent to the amount involved in the illegal act. While refining the duration of compulsory measures, the different corresponding situations shall be refined according to the characteristics of illegal acts, or the requirements for lifting coercive measures shall be specified. In the refinement of the situation where no coercive measures are necessary, the specific situations where coercive measures may not be needed, such as minor violations and less social harm, shall be refined; Where the illegal act has stopped and will not continue, the harm will no longer occur and the danger will no longer expand, and the parties actively cooperate in the investigation, coercive measures shall not be taken; No compulsory measures shall be taken for documentary evidence such as contracts and account books that can effectively fix evidence by other means. In the selection of enforcement methods, indirect enforcement methods shall be given priority over other methods.

7. Promoting Intensive and Efficient Administrative Inspection

The term "administrative inspection" as mentioned herein, refers to the inspection (examination, testing) carried out by the administrative organ on the commodities, services provided, relevant premises, equipment and facilities, and other related activities of the administrated subject according to law, and does not include the activities of the administrative organ to collect and fix illegal facts by using electronic monitoring technology according to law, or to collect information, statistical data, risk monitoring, interview and indication and other activities in administrative management. Where laws, rules and regulations only stipulate in principle the duties, contents, subjects and frequency of administrative inspection, the developing organ shall make refinement and quantification according to law and form the discretion benchmarks.

While refining inspection responsibilities and inspection content, the division of inspection responsibilities at the municipal, district, sub-district and town levels shall be specified, as well as the inspection items, inspection contents and standards; A mechanism for coordinating the inspection of enterprises involved in the same system shall be established so as to avoid multi-level repeated inspections. In cases where the power of law enforcement is relatively centralized or transferred to subordinate departments, the inspection responsibilities of all relevant units shall be specified. In selection of inspection subjects and control of inspection frequency, the way of determining inspection subjects for various inspection tasks shall be refined in accordance with the requirements of graded and categorized credit supervision and supervision with "random selection of subjects and inspectors and public disclosure"; The procedures for law enforcement organs to increase inspection tasks and frequency outside the annual inspection plan shall be specified; A regular cross-department comprehensive supervision mechanism shall be established and improved, cross-department cooperation requirements shall be refined to improve supervision accuracy and effectiveness, reduce multiple inspections, and optimize inspection frequency; A comprehensive inspection list shall be explored and formulated according to various lines of industries and different production and operation scenarios, and the "one list for one industry" and "one-off comprehensive inspection" shall be implemented; Triggered supervision and "supervision sandbox" for low-risk supervision matters and new forms of business shall be explored and implemented. While refining the inspection procedures, the procedural requirements of inspection in the Administrative Punishment Law shall be observed, and those otherwise provided by laws, rules and regulations shall prevail. While regulating sampling and sampling activity norms, the rules shall be refined; If the sampling examination, testing and quarantine carried out according to law will cause loss of commodities or property of the inspection subjects, the sampling quantity shall be specified.

IV. Constantly Improving the Application and Administration of Discretion Benchmarks

1. Improving the Application of Discretion Benchmarks

Before making an administrative law enforcement decision, the administrative organ shall notify the administrative counterparts of the basis, content, facts, reasons and rights enjoyed by the administrative counterpart according to law for the relevant administrative law enforcement act. If there are administrative discretion benchmarks, the application of the administrative discretion benchmarks shall be specified in the written decision of administrative law enforcement. If the application of the administrative discretion benchmarks developed by this administrative organ may be obviously inappropriate or unfair, or the objective circumstances for the application of the administrative discretion benchmarks have changed, adjustment may be made for application in accordance with relevant state provisions; The discretion benchmarks applicable to the adjustment of the enacting organ shall be revised timely. If serious consequences are caused by the non-standardized application of the administrative discretion benchmarks, the relevant persons shall be held liable in accordance with the provisions, disciplines and laws.

2. Strengthening Administration of Discretion Benchmarks

Efforts shall be made to make administrative law enforcement discretion regulated, standardized, and information-based, and artificial intelligence, big data, cloud computing, blockchain and other technical means shall be fully utilized to incorporate the administrative discretion benchmarks into the administrative law enforcement information system, so as to provide accurate guidance for administrative law enforcement personnel and effectively regulate the exercise of administrative discretion. All municipal administrative organs and all district people’s governments shall strengthen the supervision and inspection of the implementation of the administrative discretion benchmarks by review of case files, evaluation and assessment of administrative law enforcement, handling of complaints and tip-offs of administrative law enforcement, and other methods. The municipal administrative organs shall take the initiative to collect public opinions and suggestions on the exercise of administrative discretion, and establish and improve the dynamic adjustment mechanism of discretion benchmarks, by which the discretion benchmarks shall be revised and improved in time according to the revision of the superordinate law, the actual economic and social development and the needs of administrative management.

V. Strengthening Organizational Support

1. Strengthening Organizational Leadership

The Municipal Bureau of Justice shall strengthen the guidance on the formulation, administration and implementation of the discretion benchmarks, and timely study and solve the universal problems in the Municipality. All municipal administrative organs shall strengthen overall coordination, scientifically formulate and continuously optimize the discretion benchmarks, seriously organize for implementation, and timely study and solve the problems related to the exercise of administrative discretion in their respective systems.

2. Strengthening Training and Publicity

All municipal administrative organs and all district people's governments shall strengthen the training of law enforcement personnel, specify the implementation requirements of discretion benchmarks, and continuously improve the ability of law enforcement personnel to standardize the exercise of administrative discretion. Attention shall be paid to the collection of typical cases, good experiences and practices shall be shared, and good examples shall be followed. Publicity and interpretation of the discretion benchmarks shall be strengthened, various and targeted publicity activities shall be carried out, thus the awareness and attention of the public and administrative counterparts on the discretion benchmarks will be enhanced, and a good social atmosphere will be created.

These Opinions shall be effective as of March 1, 2024.