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The administrative penalties of “confiscating or killing dogs” in the local rules and regulations of provinces and cities are not based on the superior law, and such administrative penalties are suspected to be illegal, which should be withdrawn by the National People's Congress after reviewing the legality of these provisions.

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Undoubtedly, both at the national and local levels, our country has made great progress in the field of pet protection than before the reform and opening up, however, in the field of pet protection and rule of law, there are still many problems, which are not solved not only directly affect the development of our pet industry, but also directly affect the quality of our life and the international image of the country. In this paper, the author will focus on the confiscation or capture of pet dogs in our local rule of law prevails.

The status quo of urban dog management, especially the law enforcement behavior of on-the-spot trapping and confiscation of dogs, has produced many negative social impacts. Many provinces and cities have experienced the law enforcement behaviors of city administrators to catch and kill and confiscate dogs on the spot, and this kind of rough treatment of companion animals hurts the feelings of animal owners, destroys the harmonious social atmosphere, arouses public anger and grievances, triggers social public opinion, and also has a negative effect on the international image of our country. These behaviors of rough treatment of pets that occur around us from time to time prompt us to reflect on what has gone wrong with our rule of law for pets. The following is an example of “confiscation or killing” in the management of urban dogs, reflecting on the problems in the local rule of law for pets.

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“Confiscation or killing of dogs” should be regulated by the Administrative Punishment Law. At present, there are only two kinds of penalties for confiscation of citizens' legal property in China's laws: criminal penalties and administrative penalties. “Confiscation or killing of dogs” is an administrative penalty. Many places (for example, Beijing) will give the relative an “administrative penalty decision letter” after confiscating a dog, which clearly indicates that confiscating a dog is an administrative penalty.

“The confiscation or killing of dogs as an administrative penalty can only be legal under three legal circumstances. “Confiscate or kill dogs” as a local regulations set administrative penalties, ‘Administrative Penalties Law’ is clearly the upper law should comply with, from the perspective of the Administrative Penalties Law, ‘confiscate or kill dogs’ as an administrative penalty can only be in the following three circumstances The lawfulness of “confiscation” as an administrative penalty can only be achieved under three circumstances: the type of “confiscation” stipulated in the Administrative Penalty Law, the type of penalties stipulated in other laws and regulations, and the type of new administrative penalties that the local regulations have the right to establish. After analysis, it was found that “confiscation or killing of dogs”, as an administrative penalty established by local regulations, does not fall into any of these three categories of legality, as analyzed below:

1. “Confiscation or killing of dogs” does not belong to the category of “confiscation” penalties provided for in the Administrative Penalties Law.

Article 9 of the administrative penalty law, the first five categories of specific penalties involving confiscation of only (2): “confiscation of illegal income, confiscation of illegal property”, obviously, the confiscated dog is not illegal income, the same, the confiscated dog is not illegal property.

According to the interpretation of the Chinese National People's Congress website, the confiscation of illegal property refers to the administrative organ's punishment of the illegal party's goods to the state. The “illegal property” that can be the object of confiscation are:

(1) Property illegally obtained by the person concerned. In terms of nature, these properties do not belong to the person concerned, but are illegally occupied by him;

(2) Property owned by the person concerned but confiscated because it was used for illegal activities, such as money used for gambling;

(3) Contraband. Prohibited goods are goods whose production, processing, storage, transportation and sale are expressly prohibited by national laws and regulations, as well as goods prohibited to be carried in certain places, such as flammable and explosive materials found in vehicles, ships and airplanes, pornographic materials such as yellow books and magazines, yellow audio and video tapes, drugs, and propaganda with reactionary contents, and so on.

It follows that confiscated dogs are not illegal property either.

2. “Confiscation or killing of dogs” does not belong to the administrative penalties stipulated in other laws and regulations.

After searching the relevant laws, only the Animal Disease Control Law involves the concept of “confiscation” as an administrative penalty. Although there are six places in the Animal Disease Control Law where “confiscation” is mentioned, none of them can be applied to the proposal. “Confiscation of dogs”.

3. “Confiscation or killing of dogs” does not belong to the local regulations have the right to establish new administrative penalties.

First of all, the confiscation of dogs violates the basic legal principle that illegal behavior and legal consequences are appropriate, and also violates the basic principles of administrative penalty law.

Secondly, local regulations do not have the right to set up new types of penalties, and our laws prohibit local regulations from setting up new types of penalties.

Finally, the Administrative Penalty Law clearly stipulates that only warnings and fines can be applied to summary procedures on the spot, “confiscate or kill dogs” administrative penalties can not be applied to summary procedures, the law does not allow on-the-spot killing, confiscation of dogs.

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Based on the above analysis, it can be concluded that the provisions of local laws and regulations on administrative penalties for killing and confiscation of dogs have no basis in legality, and should be withdrawn by the National People's Congress (NPC) or the Standing Committee of the National People's Congress (NPCSC) after a comprehensive review. The rule of law is the foundation of the country's prosperity and development, and the warm and compassionate treatment of pets is a concrete manifestation of the harmony of the whole society, in order to achieve this purpose, expect the law people and all walks of life to work together!

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This article by JAVY law firm lawyers original, only on behalf of the author's own views, shall not be regarded as JAVY law firm or its lawyers issued formal legal advice or recommendations. If you need to reproduce or quote any content of this article, please indicate the source.