Committee of Touzui Village, Xinying Town, Lin'gao County v Lin'gao Ocean & Fishery Bureau in respect of Administrative Penalties on the Administration of Sea Areas

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Committee of Touzui Village, Xinying Town, Lin’gao County v Lin’gao Ocean & Fishery Bureau in respect of Administrative Penalties on the Administration of Sea Areas

 

Case No.: (2015) QHFXCZ No.4

Cause of action: Dispute over administrative penalties on

the administration of sea areas

Sea area involved: N/A

Date:  23 June 2015

 

Gist

 

Administrative penalty imposed by the administrative authorities on the right party concerned with factual and legal ground and following lawful procedure shall be supported, and thus the Claimant’s claims are rejected by this Court.

 

Applicable law

 

Article 56 of the Interpretation of the Supreme People’s Court of Some Issues concerning the Implementation of the Administrative Procedure Law of the People's Republic of China

 

Basic facts

 

On 15 January 2013, the ferry terminal supporting project at Touzui Port in the sea area to the west of the ferry terminal of Touzui village in Xin Ying Town of Lin’gao County commenced. On 24 March 2013, the Defendant viewed that the Claimant had illegally used the sea area in question and placed the case on filed for investigation. Subsequently, Notice for Inspection, Notice for Legal Use of Sea Area and Notice for Order to Cease Illegal Acts were served to the Claimant. Upon inquiry on Wang Jian, the legal representative of the Claimant, Li Yong, the contractor of the terminal supporting project and other members of the village committee, the Defendant collected related evidences and found out the facts that the Claimant, as the project owner, entrusted Li Yong as the contractor for the construction of the subject terminal supporting project and the Claimant did not obtain the certificate for the right of use of the sea area in question. Entrusted by the Defendant, Haikou Shanwei Mapping Technology Service Co., Ltd. issued the Report on Measurement Technology Result in which the sea area in question was measured in an area of 32.9161mu (2.1944ha in total). Based on such report, the Defendant issued the Approval Form for Administrative Penalty Opinion intended to impose administrative penalty in an amount of RMB7,899,900 on the Claimant. On 26 May 2014, the Defendant rendered the Notice for Hearing of Administrative Penalty under the case number of LHZTG (2014) No.1, advising the Claimant on the content of the administrative penalty and the right that the Claimant has to request for hearing. On 13 June 2014, the Defendant held a hearing for the subject administrative penalty to which Wang Jian, the legal representative of the Claimant and other four person attended for their defenses. On 11 August 2014, the Defendant rendered the Decision of Administrative Penalty under the case number of LHZCF (2014) No.13 (hereinafter referred to as No. 13 Penalty Decision) and served the same to the Claimant on the same day by means of service by retention. Afterwards, the Claimant applied for administrative reconsideration before the people’s government of Lin’gao County, which rendered the Decision on Administrative Reconsideration under the case number of LFFJZ (2014) No.20 on 31 December 2014 sustaining the No. 13 Penalty Decision rendered by the Defendant. The Claimant was dissatisfied with the Decision on Administrative Reconsideration and initiated this lawsuit.

 

On 12 June 2015, this Court arranged for survey on the subject sea area together with both the Claimant and the Defendant. Wang Jian, the legal representative of the Claimant, and Yan Xiaopin, the agent ad litem of the Defendant, participated in the survey and signed on the survey record. Upon survey, the sea area in question was adjacent to the bank of Touzui Village ferry with a number of buildings on the land reclamation. The ferry terminal supporting project in question falls out the scope for the renovation project of Touzui ferry applied by the people’s government of Lin’gao Town before the people’s government of Lin’gao County. The Claimant alleged it owns that the land reclamation in question but without obtaining the certificate of the right of land use.

 

The Claimant’s request is to revoke the No.13 Administrative Penalty issued by the Defendant Lin’gao Ocean & Fishery Bureau.

 

Reasoning

 

The effective judgement holds that the previous version of the Administrative Procedure Law of the People’s Republic of China shall apply as this case was accepted before 1 May 2015. As per the construction contract signed by and between the Claimant and Li Yong, a third party to this case, and the records for inquiry on the Claimant’s legal representative by the Defendant shows that the Claimant is the actual owner of the ferry terminal supporting project in question. The people’s government of Xin Ying Town was performing it administrative duties to apply for instruction before its superior, which does not mean that it is the owner of the renovation project. The act to which this lawsuit is against is on the Claimant’s illegal use of sea area. It’s found that the actual construction in the ferry terminal supporting project by the Claimant is beyond the scope of the renovation project applied by the people’s government of Lin’gao Town before the people’s government of Lin’gao County. Hence, this Court does not support the Claimant’s argument that the administrative penalty was imposed on wrongful subject. As per the Defendant’s measurement according to the sea area and coastline map issued by the state, the sea area actually used by the Claimant was 2.1944ha. Although the Claimant argued that the sea area (land reclamation) in question is owned by the village, it did not present the certificate of the right of land use. Therefore, it’s clear that the Claimant illegally use the sea area in question when it had not obtained the right of use of the sea area in question. The Defendant strictly followed the procedures, such as giving duly notification and hearing, in the course of making the administrative penalty. Hence, the penalty given as per Article 42 of the Law of Administration on the Use of Sea Area of the People’s Republic of China and the Interim Regulations of Administration on the Use of Sea Area is lawful and right in respect of procedure and law application. The request by the Claimant to revoke No.13 Administrative Penalty is not supported by this Court.

 

Judgement

 

It’s ruled to overrule the claims by the Claimant, Committee of Touzui Village of Xin Ying Town Lin’gao County.