Legal information

Article introduction: Article 118 of the "Atmospheric Pollution Prevention and Control Law" stipulates that if catering service operators that emit oil fumes fail to install oil fume purification facilities, use oil fume purification facilities abnormally, or fail to take other oil fume purification measures, and emit oil fumes in excess of emission standards, the relevant responsible persons will be punished. So, what is the legal remedy in this case?

Part One: Original text of the law

1. Article 118 of the "Atmospheric Pollution Prevention and Control Law" stipulates that if a catering service operator that emits oil fume in violation of the provisions of this law fails to install oil fume purification facilities, uses oil fume purification facilities abnormally, or fails to take other oil fume purification measures, and discharges oil fume in excess of emission standards, the supervision and management department determined by the local people's government at or above the county level shall order it to make corrections and impose a fine of not less than 5,000 yuan but not more than 50,000 yuan; if it refuses to make corrections, it shall be ordered to suspend operations for rectification.

2. Anyone who violates the provisions of this Law and builds, renovates or expands a catering service project that generates oil smoke, odor or exhaust gas in a residential building, a commercial-residential complex without a dedicated flue, or a commercial floor adjacent to the residential floor in a commercial-residential complex will be ordered to make corrections by the supervision and management department determined by the local people's government at or above the county level; if the company refuses to make corrections, it will be closed down and a fine of not less than RMB 10,000 but not more than RMB 100,000 will be imposed.

3. Anyone who violates the provisions of this Law by barbecuing food in the open air or providing a venue for barbecuing food in the open during periods and areas prohibited by the local people's government shall be ordered to make corrections by the supervision and management department determined by the local people's government at or above the county level, and the barbecue tools and illegal gains shall be confiscated, and a fine of not less than 500 yuan but not more than 20,000 yuan shall be imposed.

Part 2: Legal Interpretation

Question: If it is found on site that no oil fume purification facilities are installed and engaged in business operations, is it directly punished or does it need to be monitored and determined to exceed the standard before the punishment can be imposed? Is the exceedance test conducted in accordance with GB18483 "Fume Emission Standard for Catering Industry (Trial)"?

Answer: 1. According to the provisions of Article 118, Paragraph 1 of the "Atmospheric Pollution Prevention and Control Law", in violation of the provisions of this Law, catering service operators who emit oil fumes fail to install oil fume purification facilities, use oil fume purification facilities abnormally, or fail to take other oil fume purification measures, and emit oil fumes in excess of emission standards, shall be punished in accordance with the provisions of Articles 10, 60, 61 and 62 of the "Environmental Administrative Punishment Measures". Ying Ting believes that it can be: warning; fine; ordering to suspend production for rectification, ordering to suspend production, business, or closure; suspending or revoking licenses or other licensing documents; confiscation of illegal income and illegal property; administrative detention; and other administrative penalties set by laws and administrative regulations.

2. The parties concerned shall implement the penalty decision within the time limit specified in the administrative penalty decision letter. If you apply for administrative reconsideration or file an administrative lawsuit, the execution of the administrative penalty decision will not be stopped. If the party concerned fails to apply for administrative reconsideration, file an administrative lawsuit, or implement the penalty decision within the time limit, the environmental protection department that made the penalty decision shall apply to the People's Court for enforcement.

3. Applications for compulsory enforcement by the people's court should comply with the provisions of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Enforcement of the Administrative Litigation Law of the People's Republic of China" and should be filed within the following time limits:

(1) If the party concerned does not apply for administrative reconsideration and does not file an administrative lawsuit after the administrative penalty decision is served, within 180 days starting from 60 days after the penalty decision is served;

(2) If the party concerned does not file an administrative lawsuit after the reconsideration decision is served, within 180 days starting from 15 days after the reconsideration decision is served;

(3) If the party concerned does not file an appeal after the first-instance administrative judgment, within 180 days starting from 15 days after the date of delivery of the judgment;

(4) If the party concerned does not file an appeal after the first-instance administrative ruling, within 180 days starting from 10 days after the date of delivery of the ruling;

(5) Within 180 days from the date of delivery of the administrative judgment of second instance.

Part Three: Legal Remedies for Administrative Penalties in the Catering Industry

If you operate a restaurant, hotel or other catering industry, you will be punished by relevant departments because your oil fume emissions or sewage emissions exceed standards. If you think the handling by the relevant departments is inappropriate, you can safeguard your legitimate rights and interests in accordance with Article 35 of the Administrative Penalty Law. That is, Article 35 of the Administrative Penalty Law stipulates that if the party concerned is dissatisfied with the administrative penalty decision made on the spot, he may apply for administrative reconsideration or file an administrative lawsuit in accordance with the law. If you encounter unclear legal issues, you can consult a professional lawyer to find a solution.

Yingting reminds you that please pay attention to the following legal deadlines so as not to miss the opportunity to protect your rights.

(1) Article 9 of the Administrative Reconsideration Law stipulates that if citizens, legal persons or other organizations believe that a specific administrative act infringes upon their legitimate rights and interests, they may file an application for administrative review within 60 days from the date of becoming aware of the specific administrative act; however, exceptions are made where the application period prescribed by law exceeds 60 days. If the statutory application deadline is delayed due to force majeure or other legitimate reasons, the application deadline will continue to be calculated from the date the obstacle is removed.

(2) Article 44 of the Administrative Litigation Law stipulates that for administrative cases within the scope of the People's Court, citizens, legal persons or other organizations may first apply to the administrative agency for reconsideration. If they are not satisfied with the reconsideration decision, they may then file a lawsuit with the People's Court; they may also file a lawsuit directly with the People's Court. Laws and regulations stipulate that one must first apply to the administrative agency for reconsideration. If one is dissatisfied with the reconsideration decision and then files a lawsuit in the People's Court, the provisions of laws and regulations shall apply. Article 45 stipulates that citizens, legal persons or other organizations that are dissatisfied with the review decision may file a lawsuit with the People's Court within 15 days from the date of receipt of the review decision. If the review authority fails to make a decision within the time limit, the applicant may file a lawsuit with the People's Court within fifteen days from the expiration of the review period. Except as otherwise provided by law. Article 46 stipulates that if a citizen, legal person or other organization directly files a lawsuit with the People's Court, it shall do so within six months from the date when it knows or should know that the administrative action has been taken. Except as otherwise provided by law. Except for cases filed over real estate, the People's Court will not accept cases filed more than five years from the date of administrative action.