First, the concept and basic requirements of archives administrative law enforcement
Archives administrative law enforcement refers to the act that the archives administrative department of the people's government at or above the county level influences the archives rights and obligations of the administrative counterpart according to the provisions of archives laws, regulations and rules, and supervises and inspects the archives rights and obligations of the administrative counterpart.
Archives administrative law enforcement should follow five basic requirements: legality, sufficiency of basis, rationality, effectiveness and acceptance of supervision.
Second, the archives administrative law enforcement basis
The basis of archives administrative law enforcement mainly includes the following three aspects:
The first is based on the laws, regulations and rules of the archives administration department. Such as Archives Law, Measures for the Implementation of Archives Law, Interim Provisions on Supervision and Inspection of Archives Law Enforcement, Interim Provisions on Archives Administrative Punishment Procedure, Provisions on Archives Administrative Licensing Procedure, etc.
The second is the legal basis for the archives administration department to assist the department. Such as: secrecy law, cultural relics protection law, statistics law, accounting law, contract law, electronic signature law, administrative boundary management regulations, enterprise state-owned assets property rights registration management measures, government information disclosure regulations, etc.
III. Basis for the implementation of laws, regulations and rules. Such as: Administrative Procedure Law, Administrative Reconsideration Law, State Compensation Law, Administrative Licensing Law, Administrative Punishment Law, etc.
The applicable principles of archives administrative law enforcement basis are mainly embodied in seven aspects.
Three. Archives administrative license
(1) The concept of archives administrative license refers to the act that the archives administrative department approves citizens, legal persons or other organizations to engage in specific activities after legal review according to their applications. There are four main characteristics.
(two) the subject and project of archives administrative license
According to the relevant provisions of the Archives Law and the Measures for the Implementation of the Archives Law, the subject of archives administrative license is the archives administrative department. The establishment of archives administrative licensing items must follow the principles of ensuring the development of archives, safeguarding public interests, minimizing the number and applying.
According to the Archives Law, the Measures for the Implementation of the Archives Law and some local archives laws and regulations, the administrative licensing items of archives mainly include the following six contents:
First, examine and approve the sale to units or individuals outside the National Archives of collectively owned and personally owned archives that are of preservation value to the state and society or should be kept confidential.
The second is to examine and approve the donation and exchange of non-state-owned archives that are valuable to the state and society or should be kept confidential.
The third is the approval of giving, exchanging and selling copies of state-owned archives to domestic and foreign units or individuals.
The fourth is the approval of carrying, transporting or mailing files out of the country.
Fifth, the examination and approval of the scope of archives collected by professional archives. Sixth, the file acceptance of key construction projects determined by the people's governments at or above the county level.
(three) the implementation of administrative licensing of archives
1. Principles for the implementation of archives administrative license.
2. Procedures for the implementation of archives administrative licensing.
According to the Administrative Licensing Law, the Archives Law and the Measures for the Implementation of the Archives Law and other laws and regulations, the archives administration department implements administrative licensing in accordance with legal procedures, which mainly includes: first, application and acceptance. Second, review. Third, decide. Fourth, delivery.
(four) the supervision of the administrative license of archives
According to the relevant provisions of the Administrative Licensing Law, the supervision of archives administrative licensing includes two aspects: first, the internal supervision of archives administrative departments; The second is the supervision of the archives administration department to the relative person.
Fourthly, the administrative punishment of archives.
(1) Overview of Administrative Punishment
Administrative punishment is an administrative act in which the administrative subject punishes the violator, urges him not to commit crimes in the future, effectively implements administrative management, safeguards public interests and social order, and protects the legitimate rights and interests of citizens, legal persons and other organizations, and gives personal, property, reputation and other forms of legal sanctions to the administrative counterpart for acts that violate administrative legal norms but do not constitute a crime (acts that violate administrative order). Administrative punishment must follow the principles of legality, openness and fairness, combining punishment with education, protecting the procedural rights of the parties, and not punishing one thing again.
(2) Types of archives administrative punishment
According to Archives Law and Interim Provisions on Archives Administrative Punishment Procedure, there are three kinds of archives administrative punishment rights: warning, fine and confiscation of illegal income.
(three) the jurisdiction of the administrative punishment of archives
1. The archives administration department at or above the county level in the place where the illegal acts of archives occur shall be under the jurisdiction of its authority in principle.
2. Where laws and administrative regulations have special provisions on the jurisdiction of administrative punishment, such laws and administrative regulations shall prevail.
3. If two or more subjects of administrative punishment have disputes over the jurisdiction of administrative punishment, they shall report to the administrative organ at the next higher level for designation of jurisdiction.
4. According to the Interim Provisions on Archives Administrative Punishment of the National Archives Bureau, the archives administrative department at a higher level can handle the administrative punishment cases under the jurisdiction of the archives administrative department at a lower level when necessary, or can hand over the administrative punishment cases under its jurisdiction to the archives administrative department at a lower level for handling.
5. If the illegal act is serious enough to constitute a crime, it shall be promptly transferred to judicial organs for criminal responsibility according to law.
(4) Procedures for administrative punishment of archives
It mainly includes summary procedure (or spot punishment procedure), general procedure (or ordinary procedure) and hearing procedure of archives administrative punishment.
1. Summary procedure for administrative punishment of archives
Summary procedure of archives administrative punishment, also known as on-the-spot punishment procedure, refers to the punishment procedure that the archives administrative department makes the decision of archives administrative punishment on the spot for the administrative punishment items that meet the legal conditions. As the amount of fines stipulated by archives laws and regulations is 654.38+0,000 yuan for the unit and 654.38+0,000 yuan for the individual, the summary procedure of archives administrative punishment is not applicable to fines.
2. The general procedure of archives administrative punishment
The general procedure of archives administrative punishment, or ordinary procedure, refers to the procedure that archives administrative punishment usually applies except the summary procedure and hearing procedure specially stipulated by law. Unless otherwise provided by law, the general procedure shall apply. The general procedure of administrative punishment of archives has the following steps: 1. Filing a case. Second, investigate and collect evidence. Third, make a decision on punishment. Fourth, inform the reasons and inform the rights. Fifth, the statements and defenses of the parties. Sixth, a formal ruling. Seventh, the service of the administrative penalty decision. Eighth, make the "Administrative Punishment Case Closing Report".
3. Hearing Procedure of Archives Administrative Punishment According to the Interim Provisions on Archives Administrative Punishment Procedure, before the archives administrative department makes a decision to impose a fine of more than 50,000 yuan on the unit and more than 3,000 yuan on the individual, it shall make a notice of administrative punishment hearing to inform the parties that they have the right to request a hearing.
(five) the implementation of administrative punishment files
1. Concepts and principles of the execution of archives administrative punishment
The execution of archives administrative punishment refers to the procedure that the subject of archives law enforcement ensures that the obligations of the parties determined by the decision on archives administrative punishment can be fulfilled.
The principle of implementing the administrative punishment of archives is:
The first is the principle that the appeal does not stop execution.
Second, strictly implement the principle of separating fine revenue and expenditure, and separating fine decision-making organs from fine collection organs.
2. The implementation of administrative punishment of archives
First, automatic performance.
Second, execution.
legal ground
Measures for the Implementation of the Archives Law of People's Republic of China (PRC) (revised on 20 17) Article 28 Where archives are lost in violation of the Archives Law and these Measures, the archives administration department of the people's government at or above the county level and the relevant competent departments shall order compensation for the losses according to the value of the lost archives.
People's Republic of China (PRC) Archives Law (revised in 2020)
Article 24 Archives, organs, organizations, enterprises, institutions and other organizations that entrust archives sorting, storage, development and utilization, digitization and other services shall sign an entrustment agreement with qualified archives service enterprises, stipulate the service scope, quality and technical standards, and supervise the entrusted party.
The trustee shall establish a file service management system, abide by the relevant confidentiality provisions, and ensure the safety of files.