Recently, the Ministry of Agriculture and Rural Affairs and China Coast Guard (CCG) have jointly released The Benchmark on Administrative Penalty Discretion of Marine Fisheries (for Trial Implementation) (hereinafter referred to as The Benchmark). With The Benchmark to be published, the Bureau of Fisheries of the Ministry of Agriculture and Rural Affairs and CCG answered reporters’ questions on the formulation and implementation of The Benchmark.

Q: Could you please introduce the background and the significance of the introduction of The Benchmark?

A: The Benchmark on Administrative Penalty Discretion of Marine Fisheries is an important measure for regulating administrative penalties. The Outline for Building a Law-Based Government (2021–2025), jointly issued by the Communist Party of China Central Committee and the State Council, requires that “the benchmark system of administrative discretion be fully implemented, and the scope, types, and ranges of administrative law enforcement actions be detailed and quantified before their release to the public.” The Law of the People's Republic of China on Administrative Penalty (2021 Revision) provides that “the administrative bodies, may, in accordance with the law, formulate the benchmark of administrative penalty discretion to standardize the exercise of administrative penalty discretion.” After the institutional reform of the State Council in 2013, the provincial fishery administration departments (or the fishery supervision and administration authorities) and CCG are respectively responsible for the fishery law enforcement within and without the forbidden fishing zone for bottom trawling of motor fishing vessels. In recent years, fishery administration departments of coastal provinces have formulated different benchmarks on administrative penalty discretion of fisheries, and thus have caused negative impacts on maintaining social equity. Against such a backdrop, several deputies to the NPC and members of the CPPCC suggested that China should introduce a uniform benchmark for administrative penalty discretion of marine fisheries. According to the suggestions from relevant parties, on the basis of coordinated research, the Ministry of Agriculture and Rural Affairs and CCG have jointly formulated The Benchmark to make a uniform regulation on the conditions, standards, and ranges of the administrative penalty discretion. The Benchmark plays a key role and is of great significance in promoting rigorous, standardized, equitable and civilized law enforcement in marine fisheries, improving the cooperation mechanism between the Bureau of Fisheries and CCG, and ensuring the legal and proper exercise of discretion by fishery law enforcement agencies.

Q: What are the basic principles and key points of The Benchmark?

A: The Benchmark has been formulated in line with the following principles: First, a formulation based on law. Following the principle of “administrative bodies may not take any action not authorized by law”, we have detailed regulations on the administrative penalty discretion of fisheries according to the regulations of the Law of the People's Republic of China on Administrative Penalty and the law enforcement realities within the scope of administrative penalties prescribed by laws relating to fishing. Second, make the punishment fit the illegal act. The harm of illegal acts and the statutory scope of administrative penalty were taken into overall consideration to determine the corresponding administrative penalty according to the harm caused by illegal acts. 

The Benchmark determines 86 fishery-related illegal acts, covering such fields as the combat against IUU, protection of aquatic wild animals, traffic safety management in fishing harbor waters, environmental protection of fishery waters, and the administration of the vessel crew, fishery radio communication and fishery aids to navigation, etc. The Benchmark provides clear rules on the basis of punishment, the classification of gravity of illegal acts, standards of confirmation, detailing of penalty grades, and content of punishments for every illegal act. As for local laws and administrative penalty items determined by local rules and regulations, The Benchmark also specifies that local fishery authorities should formulate the benchmarks on discretion.

Q: How does The Benchmark define the circumstance of illegal acts?

A: According to the fishery realities and law enforcement practices, The Benchmark classifies illegal acts within the range of administrative penalty into three grades: minor, ordinary and grave. For any illegal act with particular serious circumstances as stipulated by fishery laws, rules and regulations, a grade of particularly serious violation shall be added accordingly; for any illegal act that will immediately produce great social harm upon its execution, a grade of minor violation shall be canceled; for illegal acts causing serious damage to fishery resources such as killing fish from underwater explosions, with poison, with electricity, or fishing with banned fishing gear, etc., penalty discretion shall be made starting with the serious circumstance; for grades with a large range of discretion, they are further refined into several degrees aligned to relevant illegal circumstances, with the penalty content for each degree clearly defined.    

The gravity of the circumstance of violation is determined based on the seriousness of the actual harm caused. In terms of the combat against IUU, the fish catch or its value through IUU shall be regarded as the criteria for determining the gravity of circumstance; in terms of the protection of aquatic wild animals, the value of the aquatic animals and their products involved in the illegal act shall be regarded as the criterion; in terms of port and shipping supervision, the degree of impact on the grade of causing fishery safety accidents and the fishery management order and other factors shall be regarded as the criterion; in terms of the ecology and environment of fishery waters, the grade of pollution caused to the fishery environment shall be regarded as the criterion.

Q: Is there any notice on implementing The Benchmark?

A: When local fishery law enforcement departments are handling cases of fishery-related violations, they should impose an administrative penalty in line with The Benchmark on the basis of comprehensive investigation and accurate identification of illegal acts and facts. In case of the following circumstances, the grade of penalty shall be adjusted: First, when an offender has committed other illegal acts, the grade of penalty can be up-regulated appropriately; second, when an illegal act has resulted in foreign-related fishery incidents, production safety accidents or other serious social impacts, the grade of penalty can be determined aligned to the serious circumstance or particularly serious circumstance; third, when an offender has deliberately abandoned, transferred or destroyed the illegal fishing catches, the grade of penalty can be determined with an overall consideration of evidence materials such as the on-site law enforcement audio and video records, the video surveillance of the crime scene, and the witness testimony, and other factors such as the length of the ship, the tonnage, the number of the fishing gear; fourth, illegal acts that meet the provisions of impunity or application of a lighter, mitigated or severer punishment shall be dealt with according to law and regulations.