Application & Additional Evidence Filed by CBCGDF Regarding the "Warning" Administrative Penalty Decision Issued by the Ministry of Civil Affairs

 

The China Biodiversity Conservation and Green Development Foundation (CBCGDF) has filed a reconsideration application in response to the "Administrative Penalty Decision" (which namely called "Warming" but actually causes huge harm) issued by the Ministry of Civil Affairs of China. The applicant argues that the factual determination in the penalty decision is erroneous, the penalty procedure is severely unlawful, and the application of the law is incorrect. On May 26th 2023, the Foundation officially filed its Reconsideration Application and Evidence.

First and foremost, the applicant points out that the factual determination made in the administrative penalty decision is incorrect. The "Decision" claims that the applicant inappropriately allocated 500,000 yuan as management fees in the donation project, thereby altering the purpose of the donated funds. However, the applicant has provided an audit report and relevant financial records as evidence, demonstrating that no such management fees were allocated and the donated funds were still exclusively used for the designated project without any changes. These pieces of evidence clearly indicate that the factual determination in the administrative penalty decision is erroneous.

Secondly, the applicant highlights that the administrative penalty procedure has been severely unlawful. According to the administrative penalty law, prior to making an administrative penalty decision, the administrative authority should inform the party concerned of the proposed penalty, the facts, the reasons, and their rights to present statements, arguments, and request a hearing. However, the applicant has not received any notification regarding the evidence mentioned in the administrative penalty decision, which has deprived them of the opportunity to provide targeted defense.

Lastly, the applicant argues that there is a legal error in the application of the administrative penalty. The administrative penalty decision is based on Article 99, Paragraph 1, Subparagraph (3) of the Charity Law of the People's Republic of China, which imposes a warning penalty for unauthorized changes in the use of donated property. However, the applicant has raised a legitimate question regarding the legality of the management fees. According to the provisions of the Charity Law, qualified charitable organizations are allowed to extract management fees as long as they do not exceed ten percent of the total expenditure and unless otherwise specified in the donation agreement. As the applicant's donation agreement does not specify any management fees, their extraction of such fees is not in violation of the law. Therefore, there is an error in the application of the law in the administrative penalty decision.

The applicant also emphasizes that the administrative penalty decision has listed the CBCGDF in the Registry of Abnormal Social Organizations, which has had a very negative impact on their reputation. This has resulted in the applicant facing the dilemma of being unable to raise funds.

This Application was made followed by the suggestions of a group of independant law professionals. Prior to this, the CBCGDF convened an expert meeting on May 4th, which was attended by renowned lawyers, professors and other experts from Peking University, Tsinghua University, Renmin University of China, China University of Political Science and Law, Tianjin University, and other institutions. These independent experts are very professional in legal procedures and they unanimously concluded that the administrative penalty issued by the Ministry of Civil Affairs has serious issues, including factual errors, unlawful penalty procedures, and incorrect application of the law. Therefore, they recommended that CBCGDF continue with their appeal and request the Ministry of Civil Affairs to withdraw the "Warning".

More info:

https://weibo.com/5327744144/4905212407977417

 

Writer: WANG Minna

Translator: Wendy

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