Sanya Shuangxiang Sailing Club dissatisfied with the seizure of property by the Oceans and Fisheries Bureau of Sanya

[Basic facts]

On 25 February 2015, the Oceans and Fisheries Bureau of Sanya (the Defendant) seized 2 beach motorbikes and 1 motorboat with yellow and white stripes (US-YAMA1609F111) in the areas of Sanya Bay by issuing a detention note to the Claimant.

The Claimant complained that 1 motorboat with trailer and 2 beach motorbikes placed at the parking lot of Sanya Bay Tianfuyuan Resort were seized and towed away jointly by the Defendant, the officials from the Law Enforcement Bureau of Sanya, and auxiliary policemen of Sanya Bay Police Station. The Defendant issued a “Detention Note” to the Claimant in a later time. The Claimant argued that the detention of motorboat and beach motorbikes by the Defendant had no legal basis and therefore the administrative action shall be rescinded according to law. The Claimant requested the Court to: 1. Rescind the administrative action dated 25 February 2015 of the detention of 1 motorboat and 2 beach motorbikes owned by the Claimant; 2. Order the Defendant to return the seized 1 motorboat and 2 beach motorbikes to the Claimant; 3. Order the Defendant to bear the litigation costs of the case.

[Judgment]

Opinions of the Court: the subject case concerned dissatisfaction with the administrative seizure of property. 1. Whether the Defendant’s administrative action was justiciable. In accordance with paragraph 2 of Article 12.1 of the Administrative Procedure Law of the People’s Republic of China, the people's courts shall accept complaints filed by citizens, legal persons or other organizations against the administrative compulsory measures such as seizure, impoundment or freezing of property. In the subject case, the Defendant’s detention of the motorboat and beach motorbikes of the Claimant was an administrative compulsory measure which was within the acceptance scope of the people’s court and so the administrative action was justiciable. 2. Whether the administrative action of the Defendant shall be rescinded. As per Article 24 of the Administrative Compulsion Law of the People's Republic of China, where an administrative organ decides to implement seizure or impoundment, it shall follow the procedures set under Article 18 of this Law and make and deliver a written decision on the seizure or impoundment and a checklist thereof on spot. In the subject case, when implementing the seizure of the property concerned, the Defendant did not take any on-spot records, nor did it produce evidence to prove that it had followed the statutory procedures to notify the concerned persons on spot or listen to their statement or defense. In fact, the Defendant only gave the Claimant a detention note bearing the signature of a law enforcement official. The property detention by the Defendant violated the administrative compulsion law which required that administrative compulsory measures must be taken by strictly following the statutory procedures. The measures taken by the Defendant violated the statutory procedures and therefore shall be rescinded. In summary, as per Article 70.3 of the Administrative Procedure Law of the People’s Republic of China, the Court rescinded the administrative action of the Defendant Sanya Oceans and Fisheries Bureau who seized 1 motorboat (US-YAMA1609F111) with yellow and white stripes and 2 beach motorbikes owned by the Claimant Sanya Shuangxiang Sailing Club on 25 February 2015, and ordered the Defendant to return the motorboat and beach motorbikes to the Claimant Sanya Shuangxiang Sailing Club.

[Significance]

The dispute of the subject case focuses on the justiciability and procedural compliance of the administrative action.

Administrative compulsory measure is a kind of provisional measure taken to ensure the effect of the final administrative action. It is an intermediate action but not a necessary process or link of the final administrative action, i.e. it is a separate administrative action. Administrative penalty is a kind of final administrative action. Administrative penalty and administrative compulsory measure are two different administrative actions, and the party subject to such actions may file a complaint if he dissatisfies with the results. Legal action may be lodged against an administrative compulsory measure regardless of whether or not the administrative organ has imposed an administrative penalty.

The subject case involves an administrative compulsory measure jointly enforced by the Oceans and Fisheries Bureau of Sanya and other relevant departments for the purpose of regulating the unlicensed operation of motorboats in Sanya Bay and protecting the personal safety and the property of tourists. However, during the campaign, usually the law enforcement personnel did not pay much attention to due procedures. This is especially true in the provisional law enforcement activities with joint efforts of several administrative organs, in which the subject’s qualification and the power limit of the law enforcement organs are often neglected. Local governments always wish to uproot stubborn social diseases once and for all. However, the conduct of administrative actions shall be constrained within the power limit stipulated by law and follow the statutory procedures. Government orders are observed by the people only when the administrative organs exercise the right of law enforcement according to law.