when participating in epidemic prevention and control, does the market supervision department have the right to "order to suspend business for rectification"? This issue has caused quite a controversy recently. Looking back at the epidemic prevention and control period in 2121, we haven't seen the common phenomenon that the market supervision department is holding seals everywhere. However, during the epidemic prevention period this summer, I don't know where it started and who it started, but it has become a common practice.
both laws and policies pay attention to the classic syllogism when they are implemented. Policies and laws are norms, parties' actions are facts, and facts conform to norms, that is, administrative actions, which are the due result of norms. This behavior may be administrative coercion, administrative punishment, administrative orders, administrative agreements, administrative guidance, administrative warnings, actionable or non-actionable, mandatory or non-mandatory.
the first basic question that needs to be clarified is whether the people's governments at or above the county level have the power to restrict their operations according to the special needs of epidemic prevention and control?
there is no dispute about this issue. According to Article 49 of the Emergency Response Law: "After the occurrence of natural disasters, accidents or public health incidents, the people's government performing unified leadership duties may take one or more of the following emergency measures: (4) Prohibit or restrict the use of relevant equipment and facilities, close or restrict the use of relevant places, Suspend activities that are crowded with people or production and business operations that may lead to the expansion of hazards and take other protective measures "
and Article 42 of the Law on the Prevention and Control of Infectious Diseases:" When an infectious disease breaks out and spreads, the local people's government at or above the county level shall immediately organize forces to prevent and control it according to the prevention and control plan, cut off the transmission route of the infectious disease, and if necessary, report to the people's government at the next higher level for decision, and may take the following emergency measures and make an announcement: (1) Restrict or stop the fair. (2) Suspension of work, business or classes; ? (5) Closing places that may cause the spread of infectious diseases. "
the specific measures taken by the people's governments at or above the county level to restrict the operation of specific industries can be broadly divided into two categories: first, directly shut down the places and suspend all business activities, such as chess rooms, bath centers, cinemas and Internet cafes; Second, it must meet certain epidemic prevention requirements when operating. For example, common pharmacies prohibit the sale of antipyretics, restaurants prohibit eating in the hall but can take out food, and supermarkets must arrange special personnel to take temperature and check health codes at the door.
The reason why the epidemic prevention measures are subdivided is because the previous discussion did not distinguish between these two epidemic prevention measures. If the violation of the above two types of epidemic prevention measures is handled by suspension of business, there is a major difference in nature. If it is not distinguished, it will easily lead to misunderstanding. It seems that the pros and cons are talking about the same problem, but in fact there is no tit for tat, and it is impossible to make the truth clear from the details.
In order to ensure that the above epidemic prevention requirements are put in place, the first method is simple, direct and effective with the public security organ as the final guarantee. Its legal basis is:
Article 51 of the Law on Public Security Administration Punishment stipulates: "Anyone who commits one of the following acts shall be given a warning or fined less than 211 yuan; If the circumstances are serious, he shall be detained for not less than five days but not more than ten days, and may also be fined not more than 511 yuan: (1) refusing to carry out the decisions and orders issued by the people's government according to law in case of emergency. "
the opinions on punishing illegal crimes that hinder the prevention and control of pneumonia in novel coronavirus according to law clearly stipulates that the public security organs shall impose administrative penalties for public security according to the provisions of the Law on Public Security Administration Punishment on refusing to implement decisions and orders in an emergency if the measures to prevent and control the epidemic situation do not constitute a crime.
article 66 of the emergency response law stipulates: "if a unit or individual violates the provisions of this law, refuses to obey the decisions and orders issued by the local people's government and its relevant departments, or fails to cooperate with the measures taken by it according to law, which constitutes a violation of public security management, the public security organ shall punish it according to law."
The above legal provisions are connected in series, and the logic is impeccable. If implemented well, it will definitely ensure that the epidemic prevention measures stipulated by the government are put in place, and there will be no policy failure. Naturally, other administrative departments, including the market supervision department, can inform and persuade business households to implement epidemic prevention regulations, and when they find that business households refuse to implement epidemic prevention decisions, they can report them or hand them over to public security organs for handling.
However, it is controversial that in most of the circulars and pre-plans issued by the government, the responsibilities that should be shouldered by the public security organs are all ignored at the end of the article, but the competent departments of various industries have made great efforts to ensure that operators in their respective industries obey the epidemic prevention management. In some local governments' epidemic prevention notices and implementation plans, it is even impressively stipulated that the administrative organs should "order to shut down" certain institutions, such as asking the Health and Health Commission to shut down individual clinics, the Wenguang New Bureau to shut down KTV Internet cafes, the Education and Sports Bureau to shut down off-campus counseling institutions, the Housing and Construction Bureau to shut down real estate agents, the post office to shut down express delivery points, and of course, the municipal supervision department to shut down hotels. For those operators who only have business licenses and no licenses, such as clothing stores and gyms, the municipal supervision department is routinely responsible.
believes that, on the one hand, local governments need to mobilize the enthusiasm and sense of responsibility of the competent departments of various industries in order to play a great role in group prevention and control, and the competent departments of industries are familiar with the business entities under their control, so they can use the authority of usual management to standardize them quickly and effectively.
On the other hand, in terms of legal identification, whether it is the word "refusal" in the provisions of the Law on Public Security Administration Punishment or "disobedience" and "non-cooperation" in the Law on Emergency Response, it is necessary for the relevant departments to make preliminary identification and evidence collection, rather than blindly handing it over to the public security organs for investigation from beginning to end, which is simply not feasible in practice.
Law enforcement risks arise as a result. Some epidemic prevention notices clearly state that "the market supervision bureau will order it to suspend business for rectification", so that some law enforcement officers take seals after reading them, and when they see restaurants that fail to prevent epidemic prevention according to regulations, they indiscriminately turn off the electricity, water and fire, leaving with a seal. Naturally, there will be no documents, and the next store is waiting to be closed!
undoubtedly, the policy intention and legal nature of "ordering to suspend business for rectification" were not clearly analyzed, and it was taken for granted without paying attention to ways and means. This will not only find a pot back in person, but may even cause bad social impact because of "doing too well", which will bring trouble to the government at the same level and be criticized by the higher level government. Usually, it is said to be "one size fits all".
Therefore, we must first carefully analyze the nature of "ordering to suspend business for rectification". In the previous discussion, some people think that it is an administrative punishment, others think that it is an emergency management measure, and its mandatory is also controversial. It is believed that we should start from the details and distinguish them with specific scenes to get accurate identification standards.
The literal meaning of "ordered to suspend business for rectification" is to let operators who fail to comply with epidemic prevention regulations stop business (suspend business) and correct their illegal acts (rectify).
above, we divide epidemic prevention measures into two categories. first, for the first category of epidemic prevention measures, that is, chess rooms and other institutions that the government requires to completely close down, there is no so-called "rectification", and closure means closure. Unless the policy changes, it will not be possible to start business just because of "rectification". After the government issued a closure order, all operators in the industry must close down, and their original legitimate business interests are deprived by the order. Therefore, if they ignore the closure order and continue to operate, subjective reasons are not asked, which objectively constitutes illegal business. The income generated by illegal business is illegal income, so ordering them to close down at this time will not cause losses to their legitimate rights and interests.
article 2 of the administrative punishment law stipulates: "administrative punishment refers to the behavior of administrative organs to punish citizens, legal persons or other organizations that violate the administrative order according to law by reducing their rights and interests or increasing their obligations". In the case that the government has a unified shutdown order, ordering to suspend business will not impair the legitimate rights and interests of operators, nor will it punish the illegal subjects by ordering to suspend business, so it does not belong to administrative punishment.
if it is not an administrative penalty, what is it? Some people think that according to the Administrative Enforcement Law, "when natural disasters, accidents, public health incidents or social security incidents occur or are about to occur, administrative organs shall take emergency measures or temporary measures and implement them in accordance with the provisions of relevant laws and administrative regulations." -This is an emergency measure or a temporary measure.
or according to the Emergency Response Law, "other units in the place where emergencies occur should obey the decisions and orders issued by the people's government, cooperate with the emergency measures taken by the people's government, do a good job in emergency rescue work of their own units, and actively organize personnel to participate in emergency rescue and disposal work in their places." And "Emergency Regulations on Public Health Emergencies" stipulates that "after the emergency plan is started, the relevant departments of the people's government in the place where the emergency occurred should obey the unified command of the emergency response headquarters according to the requirements of the emergency plan, and immediately arrive at the specified post and take relevant control measures." -This is an emergency disposal measure or control measure.
Unfortunately, neither the Emergency Response Law nor the Emergency Regulations on Public Health Emergencies clearly stipulate whether "ordering to suspend business" belongs to the above measures.
what is not specified in the legal provisions does not mean that there is no definite nature. In this case, "ordered to suspend business" actually has a clear legal definition-"administrative order".
China has no laws and regulations specifically regulating administrative orders, but administrative orders are very extensive and scattered in various laws, rules and regulations. The academic research is not in-depth, and it is still in the stage of description and distinction. For example, ① administrative punishment is a new obligation to operators, and administrative order is to let operators perform their due obligations. (2) administrative punishment is the punishment for past illegal acts of operators, but administrative orders are not limited to this. They can face the future and order operators to abide by laws and regulations in the future, which is different from administrative suggestions. (3) The administrative orders are corrective. The most common administrative order is to order rectification of illegal acts. If it goes beyond rectification and restricts the legal acts of a considerable number of people, it may constitute administrative punishment. (4) Administrative punishment and administrative coercion should follow relatively complicated procedures according to law, but administrative orders only need to follow the minimum general procedural rules, such as collecting certain evidence and expressing it in a certain way. ⑤ The administrative order is a kind of intentional administrative behavior, which is different from the actual administrative behavior that can be directly implemented by administrative organs such as seizure and seizure.
Therefore, the order to suspend business in this case is an administrative order, which is of great convenience. There is no need to go through complicated procedures such as filing a case, informing, hearing and serving according to the procedure of administrative punishment. Just collect evidence and make it directly, even verbally.
there will be another dispute here, that is, whether the market supervision bureau can directly order the closure in its own name according to the provisions of the government's notice and plan. Some people think that if the order to suspend business exceeds the scope of rectification, so as to limit other legitimate business activities of operators, this order to suspend business has the nature of administrative punishment. At this time, no matter through authorization or entrustment, the county government can't transfer the punishment matters that should be implemented by itself to its subordinate departments for implementation, which in itself violates the provisions on authorization and entrustment in the Administrative Punishment Law. However, in view of the first violation of epidemic prevention measures discussed at present, because it is an administrative order, not an administrative punishment, it can naturally be arranged by the county government for its subordinate departments to implement it. The "arrangement" here, if referring to the provisions of the Administrative Punishment Law, should use entrustment instead of authorization, and its administrative consequences belong to the county-level government, which is actionable and the subject of the lawsuit is also the county-level government. Even if some people think that even the entrustment is illegal, it must be made by the county-level government itself, and it can also be handled flexibly in specific implementation, such as affixing the official seal of the county-level government on the notice of ordering to suspend business, or affixing the official seal of the county-level epidemic prevention headquarters, or clearly stipulating in the notice and plan that the specific implementation department will sign the chapter for the county-level people's government. Specifically, law enforcement officers who are ordered to suspend business should have law enforcement qualification certificates and can be directly transferred to the epidemic prevention headquarters to solve the apparent contradictions brought about by their own work; You can also work in the original department, but when implementing epidemic prevention management measures, it represents the county government.
In this case, the order to suspend business is an administrative order and an intentional act, which is different from the enforcement measures such as seizure and seizure, and the enforcement after the court ruling.
if the business owner refuses to close down after being ordered to do so, the administrative organ cannot directly lock and affix a seal to the gate of his business premises. If you do this, it will be enforced by yourself, and Article 13 of the Administrative Enforcement Law stipulates: "Administrative enforcement shall be set by law. If the law does not provide for compulsory execution by the administrative organ, the administrative organ that made the administrative decision shall apply to the people's court for compulsory execution. "
an administrative order can also be applied to the court for compulsory execution, but even if the court decides to grant compulsory execution, the notice of execution issued to the operator is still an act of will, and it does not have the enforcement effect itself. When the operator clearly indicates that he does not cooperate with the court's execution, the court can force him to suspend business by sealing up his business premises. At this time, the "Seal-up Ruling" issued by the operator is the enforcement act with mandatory effect. Moreover, when the court enforces the order to suspend business, it does not have to seal up the premises directly. Therefore, it is a mistake for the administrative organ to force the operator to close down by direct seizure.
In reality, it is urgent to prevent and control the epidemic situation. If you apply to the court for execution according to law, even if it is handled according to the emergency, it will still take many days to achieve the purpose of suspension of business, which not only occupies valuable judicial resources, but also seriously slows down the administrative efficiency. It is better to directly inform the public security organ and force the relative person to comply with the regulations through the potential public security punishment of the public security organ.
To sum up, the county-level government has the right to issue a closure order according to the needs of epidemic prevention and control. Under certain conditions, the Market Supervision Bureau has the right to order merchants to close down (acting as the government's function), and the Market Supervision Bureau can apply to the court for enforcement (acting as the government's function) according to the notice of closure order. However, under no circumstances can the Market Supervision Bureau forcibly lock the door and affix a seal against the operator's will, and the similar forced closure behavior must be decided by the court according to the application.
In other words, issuing a closure order, ordering closure and compulsory closure are three different behaviors, which should not be confused. It should not be taken for granted that anyone can order closure if the government issues a closure order. It is very wrong to order it to close down without closing down, and naturally it can be sealed up and forced to close down.
second, for operators who are allowed to start business according to the government regulations but must meet certain conditions, such as restaurants that are not allowed to provide meals, if the operators are "ordered to stop business", the illegal benefits they have gained from illegally providing meals will naturally not be realized, and this part of the losses will not be counted as loss of rights and interests. However, even if they reopen after business suspension, the lost take-away benefits will not be recovered and their rights and interests will be damaged. For another example, the hotel has violated the epidemic prevention regulations because it failed to implement the regulations of single person and single table. If it is ordered to suspend business, natural customers cannot gather for dinner, but the benefits generated by the hotel's strict implementation of single person and single table cannot be realized, and the legitimate rights and interests of this part are damaged.