Reasons for the decision of administrative inspection

, prior notice

Before the implementation of the inspection, the administrative organ shall inform the counterpart of the purpose, basis, time and place, content and object of the inspection, so that the counterpart can participate in the inspection. Prior notification is the premise and effective guarantee for the administrative counterpart to exercise the right to participate and know. The implementation of administrative inspection will have a certain impact on the rights and interests of the counterpart, and bring certain restrictions and inconvenience to its normal life, production and operation. Therefore, before the implementation of the inspection, the administrative organ will inform the relative person of the inspection items, so that they can be prepared to ask questions, arrange their own life, production and business activities reasonably, and minimize the unnecessary losses caused by the administrative inspection. At the same time, it can also win the understanding and assistance of the relative people to the inspection work, form a benign interaction of administrative inspection, thus improving the efficiency of administrative management and realizing the expected purpose of administrative inspection. However, not all administrative inspections need prior notice, that is to say, prior notice is relative. The administrative organ informed in advance that it is necessary to restrict or not to use it if the administrative purpose cannot be realized. For example, if the tax authorities notify in advance when conducting tax inspection, taxpayers may hide goods, resulting in tax losses; The environmental protection department may not find out the illegal sewage discharge if it notifies in advance when inspecting the sewage discharge enterprises.

Second, show your identity.

Identification means that the inspection subject should take the initiative to show valid identification to the administrative counterpart during the inspection, including showing work permit, authorization certificate or wearing official logo. Prove the subject qualification and behavior qualification of administrative inspection. The Ombudsman is entrusted by the state to exercise administrative functions and powers, and at the same time engages in activities in his own name.

How to distinguish between personal activities and job activities? The identification of identity provides a standard for distinguishing this problem. Identity identification system, through the way that the administrative organ consciously discloses its identity, can protect the relative person from illegal infringement, help prevent criminals from counterfeiting and fraud, and maintain normal social management order; It is conducive to preventing the exercisers of administrative power from abusing their powers and exceeding their powers, and making administrative acts under the supervision of the public. The counterpart has the right to refuse the inspection of the inspectors who have not indicated their identity. The right to refuse inspection exercised by the administrative counterpart under certain circumstances is an important right enjoyed by the administrative counterpart and should be regarded as the necessary content of administrative inspection legislation.

At present, China's laws, regulations and rules related to taxation, public security, statistics, health and other fields clearly stipulate that the inspection subject should identify himself when conducting the inspection. For example, Article 59 of China's Tax Administration Law stipulates: "When conducting tax inspection, the personnel sent by the tax authorities shall show their tax inspection certificates and tax inspection notices, and have the responsibility to keep secrets for the inspected; If the tax inspection certificate and tax inspection notice are not presented, the inspected person has the right to refuse the inspection. " Article 78 of the Code for Law Enforcement of Public Security Police Stations stipulates: "When conducting public security inspection, police officers of public security police stations should take the initiative to show their work permits or other law enforcement certificates, identify themselves and put forward inspection requirements."

Third, explain the reasons.

When an inspection organ conducts an inspection, it shall inform the relative person of the facts, legal basis and reasons for the administrative inspection, and it is the obligation of the administrative organ to explain the reasons. Forcing the administrative organ to explain the reasons when making an administrative decision is conducive to urging the administrative organ to consider carefully when making a decision, reducing the mistakes of the administrative decision, making the parties understand the motivation of the administrative organ to make a decision, satisfying the sense of justice of the parties, consciously fulfilling the administrative decision and reducing unnecessary disputes. It is of great significance to emphasize the procedural nature of giving reasons, because "without procedural guarantee, persuasion can easily deteriorate into coercion and consent becomes a melody." Professor Ying Songnian also had an incisive exposition on the significance of explaining the reasons. In his view, explaining the reasons has three main functions: first, the self-control of the administrative organs; Second, protect citizens' rights and interests; Third, reduce the burden of reviewing the legality and rationality of administrative actions in relief procedures. Therefore, the subject of administrative inspection should explain the reasons and basis for making the inspection conclusion to the relative person before or when making the inspection conclusion, preferably in writing. For example, Article 45 of China's "Procedures for Public Security Organs to Handle Administrative Cases" stipulates: "The public security organ shall promptly notify the family members of the summoned person by telephone, text message or fax. When the public security organ summons an illegal suspect, if his family members are present, he shall verbally inform his family members of the reason and place for summoning on the spot and indicate it in the inquiry record. "

Fourth, collect information.

Collecting information is an extremely important part of the administrative inspection procedure, which refers to the administrative activities of the inspection subject to know the truth and extract evidence information by means of volume adjustment, registration and statistics, on-the-spot inspection, search and inquiry. Collecting information is not arbitrary. For example, information cannot be collected through coercion or violence; When interrogating at the airport, we can't help but consider the boarding time of the interviewee. Existing laws, regulations and rules in China. Matters needing attention in the process of collecting information have been clearly defined. For example, unless otherwise stipulated by laws and administrative regulations, when inspecting relevant objects and places, the parties concerned shall be notified to be present, and relevant personnel shall be invited to testify at the scene for public inspection. If the party refuses to be present without justifiable reasons, it will not affect the inspection; However, inspectors have the obligation to keep each other's technical and commercial secrets. If you violate the regulations, you must be responsible for the losses caused by the leak to the other party. Article 87 of the Law on Public Security Administration Punishment stipulates: "Female physical examination shall be conducted by female staff." Article 37 of the Administrative Punishment Law stipulates: "When an administrative organ conducts an investigation or inspection, there shall be no less than two law enforcement personnel." That is, administrative inspection measures should be implemented by more than two administrative organs. In addition, the administrative inspection must be carried out in time according to the legal time or normal time, and shall not exceed the time required for normal inspection. We must resolutely put an end to disguised detention or seizure, otherwise we will bear corresponding legal responsibilities. In view of the fact that a very small number of administrative law enforcement personnel have repeatedly investigated and committed crimes. A phenomenon that affects the normal production, operation and life of the other party and makes the other party tired of coping with it in order to achieve its personal goals. Therefore, repeated inspections and repeated inspections that violate the purpose of administrative inspections should be strictly controlled. When it is really necessary, the same object shall be inspected repeatedly and repeatedly, and it shall be approved by the chief executive of this organ.

Verb (abbreviation for verb) makes a check conclusion.

After the inspection, the inspection organ shall make a certain conclusion according to the collected information. Because the administrative inspection involves a wide range of fields and forms, the inspection conclusions may be varied, such as responsibility confirmation, inspection situation, statistical reports, etc. No matter what kind of inspection conclusion, it must be made in written form. Some scholars call it an inspection record, which requires the format and content to be standardized, signed by the inspectors and filed by the inspection organ. Paragraph 2 of Article 6 1 of the Administrative Licensing Law stipulates: "When the administrative organ conducts supervision and inspection on the activities of the licensee according to law, it shall record the supervision and inspection and the handling results, and file them after being signed by the supervision and inspection personnel."

Sixth, inform afterwards.

Informing afterwards refers to the activities that the inspection organ informs the relative person of relevant matters based on its legal obligations after the inspection, so as to enhance the acceptability of administrative actions and safeguard the rights and interests of the relative person accordingly. "In the current legal system, administrative notification is not a factual issue, but a legal issue. It is neither the discretion nor the working methods of the administrative organs, but the duties or obligations that the administrative organs must perform as confirmed by law, which constitutes the legal content of administrative procedures and must be highly valued by people. Therefore, administrative notification is not only a legal notification, but also an obligation to inform, which is the legal obligation of administrative organs to administrative law and interested parties. Specifically, it includes informing the inspection conclusion and informing relevant rights.

(1) Inform the inspection conclusion After the administrative inspection, the inspection organ shall inform the counterpart of the inspection result within the statutory time limit. The inspection results may have a certain impact on the rights and interests of the relative person, and the inspection results are of practical significance to the administrative relative person. The inspection organ will promptly inform the counterpart of the inspection results, so that the counterpart can improve his behavior according to the inspection results, better abide by the law and implement relevant administrative orders and decisions, and earnestly fulfill his legal obligations; Or refuse to accept the administrative inspection results, raise objections to the inspection results that are not conducive to them in time or defend them in a targeted manner to protect their legitimate rights and interests from infringement according to law. The notice should be in writing.

(2) Inform the relevant rights that the administrative inspection itself may infringe upon the interests of the counterpart because of the arbitrariness of the inspection organ, and it is the proper meaning of the rule of law to design sufficient and necessary relief means for the counterpart. Due to the complexity and particularity of administrative affairs and the asymmetry of information. The relative person is not very clear about what kind of rights he enjoys in the administrative process, so it is particularly urgent and necessary for the administrative organ to fulfill the obligation of informing. The right to inform includes: the right to state administrative inspection matters, the right to refute unfavorable administrative inspection conclusions, the right to appeal, the right to correct omissions and errors in inspection records, and the right to request relief within the statutory time limit. Compared with the prior notice, the latter notice is actually a more effective line of defense to protect the rights and interests of the counterpart. Both of them echo each other in the whole administrative inspection procedure, effectively protecting the rights of the relative person and restricting the administrative power of the administrative subject.

Seven. information disclosure

First of all, the theoretical basis of information disclosure is the right to know. As the freedom and right of citizens to get administrative information from administrative subjects, the right to know is mainly realized through the disclosure of administrative information. "The right to know expresses a universal interest demand and right consciousness of members of modern society for information resources, and shows an important and unavoidable cognitive theme for the construction of civil rights." (See Che Jingzhe's On the Perfection of China's Administrative Information Disclosure System, 2005, Master's Thesis of Yanbian University. Secondly, information disclosure can promote citizens' participation in administration and enhance citizens' trust in administrative organs. Finally, information disclosure is conducive to strengthening the supervision of administrative organs and preventing administrative corruption. Based on this, the inspection subject is required to disclose the information collected in the inspection procedure to the public, including the administrative counterpart, except for state secrets, commercial secrets and personal privacy. Article 10 of the Regulations on the Openness of Government Information promulgated by China on April 5, 2007 stipulates: "The people's governments at or above the county level and their departments shall, in accordance with the provisions of Article 9 of these Regulations, determine the specific contents of government information voluntarily disclosed within their respective functions and duties, focusing on the disclosure of the following government information: ...... (3) Statistical information on national economic and social development; (eleven) supervision and inspection of environmental protection, public health, production safety, food and drug and product quality. ...... "The realization of the right to know depends on the degree of administrative information disclosure, and the degree of information disclosure is often inseparable from state secrets, business secrets and personal privacy. How to balance the relationship between them is a problem that the subject of information disclosure must pay attention to.

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