The coping strategies of enterprises facing administrative punishment | enterprise risk control
"You can't walk by the river without getting your shoes wet." For enterprises, especially small and medium-sized enterprises, because irregular operations occur from time to time, there may be violations of laws and regulations if you are not careful. When enterprises are suspected of various kinds of violations of laws and regulations are investigated or punished by administrative regulators, how to properly deal with it is particularly important, we suggest that we can proceed from the following aspects:
First, the enterprise should have a dialectical understanding of the investigation or punishment of the regulatory body
1. When the regulatory authorities file an investigation or issue a prior notice of administrative punishment, the enterprise should attach great importance to, actively respond to, and promptly realize that: the company is filed for investigation, indicating that the regulatory authorities have mastered the preliminary evidence that the enterprise may be suspected of violating laws and regulations, so the enterprise will likely face administrative penalties; Once the enterprise is punished, the consequences will be very serious, the enterprise may face a huge fine, the relevant production and business qualification revocation and other penalties, serious cases may even involve criminal crimes, and then be transferred to the public security organs for processing.
2. The investigation of the enterprise does not mean that the relevant acts of the enterprise must constitute violations of the law, nor does it mean that the enterprise will inevitably be subject to administrative punishment. If one of our customer companies was investigated by the Industrial and Commercial Bureau in June 2019, the Industrial and Commercial Bureau found that its violation was minor in October 2019, and finally no administrative punishment was imposed.
3. Once the enterprise is issued a notice of administrative punishment in advance, the enterprise is likely to be administrative punishment, but after effective defense and hearing, the enterprise may still not be administrative punishment or reduce the intensity of administrative punishment, there is no shortage of such precedents.
Second, the enterprise should be the first time by external lawyers, internal legal risk control department to take the lead, start to prepare for countermeasures
Due to the professionalism and practical nature of administrative penalties, enterprises should, with the organization and assistance of professional lawyers, clarify the facts of suspected violations as soon as possible, conduct professional legal analysis, predict possible legal consequences, seek a reasonable defense point and breakthrough point, use the full and good use of the rights granted by law, actively provide evidence, defend, and apply for a hearing if necessary.
Third, on the basis of verifying facts and analyzing arguments, determine reasonable coping strategies
1. If the relevant acts of the enterprise do constitute violations of laws and regulations, and should be subject to administrative punishment according to law, the enterprise shall actively admit the mistake to the administrative department, actively rectify, and strive for leniency and light punishment;
2. If the circumstances of the relevant violations are minor and administrative penalties can not be imposed according to law, they should actively argue and strive for no administrative penalties;
3. If the relevant acts do not constitute violations of laws and regulations, before the formal filing of the regulatory body, the enterprise can plead and provide evidence in accordance with the law to try not to file; If the case has been filed, actively provide evidence and defend, strive for the withdrawal of the case by the regulatory body, and do not issue a prior notice of administrative punishment; If you have been issued a notice of administrative punishment in advance, you will actively defend and apply for a hearing, and strive to withdraw the case, and not be punished by administrative punishment.
It should be pointed out that if the fines issued by the administrative supervision department are indeed illegal and unreasonable, the enterprise can consider filing administrative reconsideration or even administrative litigation with the help of professional lawyers to reduce or avoid the adverse impact on the daily business of the enterprise and actively safeguard the legitimate rights and interests of the enterprise.
[Case Study -- Suggestions for real estate enterprises facing the risk of administrative punishment]
The development cycle of real estate projects is long, involving many administrative approval matters, and is subject to the management and supervision of multiple administrative departments, and if you are not careful, you will be suspected of violations by the relevant departments. Housing enterprises advertising illegal, pre-sale, sales in violation of the law, not obtained or illegally obtained development qualifications, pre-sale permits and other illegal, housing surveying and mapping, delivery of illegal, illegal termination of pre-sale contracts, etc., will incur administrative penalties.
Real estate enterprises are often at a loss and do not know how to respond when they receive notices of "Acceptance of Inquiry" and "Submission of case materials" from administrative departments. Here, we suggest that enterprises, when receiving such notices, do not panic, this is just the administrative department in the investigation and evidence, does not mean that the enterprise has broken the law or will be punished. After receiving these notices, enterprises should try their best to communicate with the competent administrative departments, ask about the facts involved in the case and what regulations are suspected of violating, and immediately sort out the relevant situation and materials, consult lawyers, sort out the case facts and materials under the guidance of lawyers, and cooperate with the investigation of relevant departments.
After receiving the "Notice of Administrative Punishment in Advance" or "Notice of Hearing" issued by the administrative authorities, housing enterprises should actively organize and write defense materials or request hearings, and should actively communicate with the competent authorities to grasp the progress of the case in a timely manner. If the enterprise believes that the facts of the suspected violation of the case are clear and the evidence is sufficient, it should take the initiative to communicate with the competent authorities, admit the mistake, and strive for the competent authorities to give the minimum penalty. If the enterprise, after consulting lawyers, believes that the facts or procedures of the case are disputed, or has been wrongly accused, it should entrust lawyers to actively respond to the hearing, defend, and strive for a fair and just treatment of the enterprise.
After the administrative competent department finally makes and issues the Administrative Penalty Decision, if the enterprise still refuses to accept, it can entrust a lawyer to file an administrative reconsideration or administrative lawsuit, but unless otherwise provided by law, the administrative penalty will not be suspended.
The above is only the real estate enterprises facing the risk of administrative punishment, in the process of dealing with suggestions. When there are specific suspected violations of laws and regulations, the detailed case should be communicated with the lawyer, and the lawyer will issue a detailed legal opinion or solution.
