Determination Of The Starting Point Of Application For Enforcement Period

- Dec 17, 2018-

When calculating the time limit for applying for compulsory execution by the people's court, it is crucial for the inspection and quarantine organ to determine the starting point of the time limit correctly. In this regard, inspection and quarantine law enforcement personnel should be determined according to different circumstances:

1. The determination of the starting point of the time limit for administrative decisions of non-administrative penalties. Because the inspection and quarantine law does not specify the time limit for administrative reconsideration and litigation of non-administrative penalty administrative decisions. Therefore, the time limit for such administrative decisions to apply for administrative reconsideration and initiate administrative proceedings should comply with the general provisions of the Administrative Reconsideration Law and the Administrative Procedure Law. When calculating the time limit for applying for compulsory execution by the people's court, if the party concerned does not apply for administrative reconsideration or initiate administrative litigation for such administrative decisions, no matter which laws and regulations of the inspection and quarantine organ are the basis of the administrative decisions, the starting point for the time limit for the application of the inspection and quarantine organ for compulsory execution by the people's court shall be the date when the party concerned knows or should know the content of the administrative decision The calculation begins on the next day after the expiration of the first three months.

If a party applies for administrative reconsideration and the administrative decision is maintained or changed by a higher authority, and the party neither brings a lawsuit nor performs the administrative decision, the starting point of the time limit for applying for compulsory execution by the people's court shall be calculated from the 16th day after the party receives the administrative reconsideration decision. Because according to Article 38 of the Administrative Procedure Law, "if the applicant refuses to accept the reconsideration decision, he may bring a lawsuit to the people's court within 15 days from the date of receiving the reconsideration decision."

2. The determination of the starting point of the time limit for the determination of administrative penalties.

(1) The starting point of the time limit for neither applying for administrative reconsideration nor instituting administrative proceedings. If the Inspection and Quarantine Institution decides on administrative penalty according to the Commodity Inspection Law or the Food Safety Law, because the two laws do not specify the time limit for administrative reconsideration and administrative litigation, it shall comply with the general provisions of the Administrative Reconsideration Law and the Administrative Procedure Law. At this time, the time limit for administrative reconsideration and the time limit for administrative litigation are respectively the date on which the parties receive the decision on administrative penalty. Starting from 60 days and 3 months, the time limit for the inspection and quarantine organ to apply to the People's Court for compulsory execution shall be the second day after the expiration of three months from the date of the party's receipt of the decision on administrative penalty. If the Inspection and Quarantine Institutions make administrative penalty decisions according to the Animal and Plant Quarantine Law or the Frontier Health and Quarantine Law, the two laws make special provisions on the administrative litigation time limit of administrative penalty decisions. At this time, the administrative reconsideration time limit and the administrative litigation time limit are respectively 60 days and 15 days from the date the parties receive the administrative penalty decision. Therefore, the starting point of the time limit for the inspection and quarantine organ to apply for compulsory execution by the people's court shall be the day after the party receives the decision on administrative penalty, that is, the day 61.

(2) The starting point of time limit when only applying for administrative reconsideration and not instituting administrative litigation. If the parties refuse to accept the administrative penalty decision made by the inspection and quarantine organ, they apply for administrative reconsideration. The reconsideration organ maintains the original administrative decision or changes the original administrative decision, but still keeps its obligations. The parties neither initiate administrative litigation nor perform the administrative decision. Whatever laws and regulations the basis of the administrative penalty decision is, the inspection and quarantine organ applies to the people's court for the starting point of the time limit for compulsory execution. The calculation shall commence on the 16th day after the party receives the administrative reconsideration decision.

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