Administrative Penalty Measures of the China Banking and Insurance Regulatory Commission
Administrative Penalty Measures of the China Banking and Insurance Regulatory Commission
Administrative Penalty Measures of the China Banking and Insurance Regulatory Commission
Order of the China Banking and Insurance Regulatory Commission [2020] No.8
June 15, 2020
The Administrative Penalty Measures of the China Banking and Insurance Regulatory Commission, adopted at the Third Executive Meeting 2020 of the China Banking and Insurance Regulatory Commission on April 9, 2020, are hereby promulgated and shall come into effect as of August 1, 2020.
Chairman Guo Shuqing
Administrative Penalty Measures of the China Banking and Insurance Regulatory Commission
Chapter I General Provisions
Article 1 In order to regulate the administrative penalty-related conduct of the China Banking and Insurance Regulatory Commission (hereinafter referred to as the "CBIRC") and its local offices and safeguard the order of banking and insurance markets, these Measures are formulated in accordance with the Law of the People's Republic of China on Administrative Penalties, the Law of the People's Republic of China on Banking Regulation, the Law of the People's Republic of China on Commercial Banks, the Insurance Law of the People's Republic of China and other relevant laws.
Article 2 Unless otherwise prescribed by laws or administrative regulations, these Measures shall be implemented where banking and insurance institutions, other entities and individuals (hereinafter referred to as the "Parties") violate laws, administrative regulations or provisions on banking and insurance regulation, and the CBIRC and its local offices shall impose administrative penalties on them in accordance with the law.
Article 3 For the purpose of these Measures, administrative penalties include:
1. warning;
2. fine;
3. confiscation of illegal gains;
4. ordering suspension of business for rectification;
5. revocation of financial or business license;
6. cancelation or revocation of job qualification;
7. limiting of the business scope of an insurance institution;
8. ordering of an insurance institution to stop accepting new business;
9. revocation of a foreign bank's or foreign insurance institution's representative office in China;
10. demanding of replacement of a foreign bank's chief representative, or ordering replacement of the chief representative of a foreign insurance institution's representative office in China;
11. prohibition of engagement in banking work, or prohibition of entry into the insurance industry; and
12. other administrative penalties prescribed by laws and administrative regulations.
Article 4 When imposing administrative penalties, the CBIRC and its local offices shall comply with the following principles:
1. fairness, equity and openness;
2. legality of procedure;
3. suiting of penalty to fault;
4. protection of the legitimate rights and interests of the parties concerned; and
5. combination of penalty and education.
Article 5 The CBIRC and its local offices shall implement an administrative penalty system in which case filing and investigation, trial and decision-making are separated, and set up their administrative penalty committees.
Each administrative penalty committee shall set up a subordinate office located at the legal department of the CBIRC or any of its local offices; where no legal department is yet established, the relevant department shall perform the duties.
Article 6 When penalizing banking and insurance institutions, the CBIRC and its local offices shall investigate, in accordance with the law, relevant responsible personnel for their legal liabilities by ordering disciplinary sanctions, administrative penalties and other ways.
Article 7 A party concerned shall be given a lighter or mitigated administrative penalty in accordance with the law if it falls into any of the following circumstances:
1. the initiative is taken to eliminate or reduce the harmful consequences of its illegal act;
2. commission of an illegal act under the coercion of others;
3. rendering of meritorious service in cooperating with the administrative organ to investigate and penalize any illegal act; or
4. other circumstances where lighter or mitigated administrative penalties shall be imposed in accordance with the law.
No administrative penalty may be imposed if an illegal act is minor and has been corrected in a timely manner, with no harmful consequence caused.
Article 8 A party concerned shall be given a heavier penalty in accordance with the law if it falls into any of the following circumstances:
1. commission of repeated offenses despite repeated investigations;
2. failure to cooperate in regulation and law enforcement;
3. causing of serious harmful consequences, which result in relatively bad social impacts; or
4. other circumstances where heavier administrative penalties shall be imposed in accordance with the law.
Article 9 Under any of the following circumstances, a staff member of the CBIRC or any of its local offices participating in administrative penalty-related work shall apply for withdrawal, and the party concerned and its agent shall also have the right to apply for his or her withdrawal:
1. is a close relative of the party concerned in a case or its agent;
2. has a direct interest in the case;
3. bears any other relationship with the party concerned in the case or its agent, which may affect the fair handling of the case; or
4. other circumstances of withdrawal in accordance with laws, administrative regulations or other provisions.
To apply for withdrawal, the party concerned or its agent shall explain the reasons. Before a decision on withdrawal is made, the relevant staff member shall suspend case investigation and trial, except under special circumstances.
Article 10 The withdrawal of any case investigator or trial person shall be decided by the person in charge of the department to which such relevant person belongs, and the withdrawal of any member of the administrative penalty committee shall be decided by the committee chairman; the withdrawal of the committee chairman shall be decided by the chief person in charge of the banking and insurance regulatory institution to which the administrative penalty committee belongs. If the chief person in charge serves as the committee chairman, whether he or she should withdraw shall be decided by the institution at the next higher level.
Article 11 The parties concerned shall have the right of statement and the right of defense against administrative penalties imposed by the CBIRC and its local offices. Those who object to a decision on administrative penalty shall have the right to apply for administrative reconsideration or file an administrative lawsuit in accordance with the law.
If the facts, reasons and evidence put forward by the parties concerned are tenable, the CBIRC and its local offices shall adopt them and shall not impose heavier penalties as a result of the parties' defenses.
Article 12 Staff members of the CBIRC and its local offices participating in administrative penalty-related work shall keep confidential the state secrets, trade secrets and personal privacy that they have come to know during the investigation and handling of cases.
Chapter II Jurisdiction
Article 13 The CBIRC shall impose administrative penalties against the following illegal acts:
1. those committed by banking institutions with legal person status which are under the direct regulation of the CBIRC, as well as by their practitioners;
2. those committed by insurance institutions with legal person status which are under the direct regulation of the CBIRC, as well as by their practitioners; and
3. other illegal acts that shall be subjected to administrative penalties imposed by the CBIRC.
Article 14 Local offices shall be responsible for imposing administrative penalties against the following illegal acts within their jurisdictions:
1. those committed by banking institutions with legal person status which are under the direct regulation of local offices, as well as by their practitioners;
2. those committed by branches of banking institutions with legal person status and their practitioners;
3. those committed by branches of insurance companies and their practitioners;
4. those committed by insurance intermediaries and their practitioners;
5. illegal establishment of insurance institutions and illegal operation of insurance business; and
6. other illegal acts that shall be subjected to administrative penalties imposed by local offices.
Article 15 If an illegal act is committed in a different place, it shall be under the jurisdiction of the local office of the place where it occurs. The local office of the place where the act occurs shall promptly notify the local office of the place where the perpetrator is located, and the local office of the place where the perpetrator is located shall actively cooperate in the investigation and penalization of the illegal act.
If the local office of the place where an illegal act occurs considers it inappropriate to exercise jurisdiction, it may transfer the case to be under the jurisdiction of the local office of the place where the perpetrator is located.
The local office of the place where an illegal act occurs or the local office of the place where the perpetrator is located may solicit opinions from the other party before making a decision on administrative penalty, and shall inform the other party of the penalty result in writing.
Article 16 If it is found through cross inspection (investigation) or cross-regional inspection (investigation) that an administrative penalty needs to be imposed against an illegal act, the case shall be submitted to the regulatory authority with jurisdiction for filing, investigation and penalization, and relevant evidential materials shall be handed over in due time.
Article 17 If a local office finds that an illegal act is not under its jurisdiction, it shall transfer the case to the local office with jurisdiction. If two or more local offices have jurisdiction over the same illegal act, the local office that files the case first shall exercise jurisdiction.
In the case of unclear or debatable jurisdiction, the local offices shall report the case to their common institution at the next higher level for designation of jurisdiction.
Article 18 An institution at a higher level may directly investigate and penalize illegal acts that shall be investigated and penalized by institutions at lower levels, may also authorize those at lower levels to investigate and penalize illegal acts that shall be investigated and penalized by it, or authorize those at lower levels to investigate and penalize illegal acts that shall be investigated and penalized by other institutions at lower levels.
In the case of authorized jurisdiction, a written authorization document shall be issued.
Article 19 For illegal acts of telemarketing insurance which are under the jurisdiction of local offices, in principle the specific place of jurisdiction shall be determined in accordance with the following requirements:
1.
......
Order of the China Banking and Insurance Regulatory Commission [2020] No.8
June 15, 2020
The Administrative Penalty Measures of the China Banking and Insurance Regulatory Commission, adopted at the Third Executive Meeting 2020 of the China Banking and Insurance Regulatory Commission on April 9, 2020, are hereby promulgated and shall come into effect as of August 1, 2020.
Chairman Guo Shuqing
Administrative Penalty Measures of the China Banking and Insurance Regulatory Commission
Chapter I General Provisions
Article 1 In order to regulate the administrative penalty-related conduct of the China Banking and Insurance Regulatory Commission (hereinafter referred to as the "CBIRC") and its local offices and safeguard the order of banking and insurance markets, these Measures are formulated in accordance with the Law of the People's Republic of China on Administrative Penalties, the Law of the People's Republic of China on Banking Regulation, the Law of the People's Republic of China on Commercial Banks, the Insurance Law of the People's Republic of China and other relevant laws.
Article 2 Unless otherwise prescribed by laws or administrative regulations, these Measures shall be implemented where banking and insurance institutions, other entities and individuals (hereinafter referred to as the "Parties") violate laws, administrative regulations or provisions on banking and insurance regulation, and the CBIRC and its local offices shall impose administrative penalties on them in accordance with the law.
Article 3 For the purpose of these Measures, administrative penalties include:
1. warning;
2. fine;
3. confiscation of illegal gains;
4. ordering suspension of business for rectification;
5. revocation of financial or business license;
6. cancelation or revocation of job qualification;
7. limiting of the business scope of an insurance institution;
8. ordering of an insurance institution to stop accepting new business;
9. revocation of a foreign bank's or foreign insurance institution's representative office in China;
10. demanding of replacement of a foreign bank's chief representative, or ordering replacement of the chief representative of a foreign insurance institution's representative office in China;
11. prohibition of engagement in banking work, or prohibition of entry into the insurance industry; and
12. other administrative penalties prescribed by laws and administrative regulations.
Article 4 When imposing administrative penalties, the CBIRC and its local offices shall comply with the following principles:
1. fairness, equity and openness;
2. legality of procedure;
3. suiting of penalty to fault;
4. protection of the legitimate rights and interests of the parties concerned; and
5. combination of penalty and education.
Article 5 The CBIRC and its local offices shall implement an administrative penalty system in which case filing and investigation, trial and decision-making are separated, and set up their administrative penalty committees.
Each administrative penalty committee shall set up a subordinate office located at the legal department of the CBIRC or any of its local offices; where no legal department is yet established, the relevant department shall perform the duties.
Article 6 When penalizing banking and insurance institutions, the CBIRC and its local offices shall investigate, in accordance with the law, relevant responsible personnel for their legal liabilities by ordering disciplinary sanctions, administrative penalties and other ways.
Article 7 A party concerned shall be given a lighter or mitigated administrative penalty in accordance with the law if it falls into any of the following circumstances:
1. the initiative is taken to eliminate or reduce the harmful consequences of its illegal act;
2. commission of an illegal act under the coercion of others;
3. rendering of meritorious service in cooperating with the administrative organ to investigate and penalize any illegal act; or
4. other circumstances where lighter or mitigated administrative penalties shall be imposed in accordance with the law.
No administrative penalty may be imposed if an illegal act is minor and has been corrected in a timely manner, with no harmful consequence caused.
Article 8 A party concerned shall be given a heavier penalty in accordance with the law if it falls into any of the following circumstances:
1. commission of repeated offenses despite repeated investigations;
2. failure to cooperate in regulation and law enforcement;
3. causing of serious harmful consequences, which result in relatively bad social impacts; or
4. other circumstances where heavier administrative penalties shall be imposed in accordance with the law.
Article 9 Under any of the following circumstances, a staff member of the CBIRC or any of its local offices participating in administrative penalty-related work shall apply for withdrawal, and the party concerned and its agent shall also have the right to apply for his or her withdrawal:
1. is a close relative of the party concerned in a case or its agent;
2. has a direct interest in the case;
3. bears any other relationship with the party concerned in the case or its agent, which may affect the fair handling of the case; or
4. other circumstances of withdrawal in accordance with laws, administrative regulations or other provisions.
To apply for withdrawal, the party concerned or its agent shall explain the reasons. Before a decision on withdrawal is made, the relevant staff member shall suspend case investigation and trial, except under special circumstances.
Article 10 The withdrawal of any case investigator or trial person shall be decided by the person in charge of the department to which such relevant person belongs, and the withdrawal of any member of the administrative penalty committee shall be decided by the committee chairman; the withdrawal of the committee chairman shall be decided by the chief person in charge of the banking and insurance regulatory institution to which the administrative penalty committee belongs. If the chief person in charge serves as the committee chairman, whether he or she should withdraw shall be decided by the institution at the next higher level.
Article 11 The parties concerned shall have the right of statement and the right of defense against administrative penalties imposed by the CBIRC and its local offices. Those who object to a decision on administrative penalty shall have the right to apply for administrative reconsideration or file an administrative lawsuit in accordance with the law.
If the facts, reasons and evidence put forward by the parties concerned are tenable, the CBIRC and its local offices shall adopt them and shall not impose heavier penalties as a result of the parties' defenses.
Article 12 Staff members of the CBIRC and its local offices participating in administrative penalty-related work shall keep confidential the state secrets, trade secrets and personal privacy that they have come to know during the investigation and handling of cases.
Chapter II Jurisdiction
Article 13 The CBIRC shall impose administrative penalties against the following illegal acts:
1. those committed by banking institutions with legal person status which are under the direct regulation of the CBIRC, as well as by their practitioners;
2. those committed by insurance institutions with legal person status which are under the direct regulation of the CBIRC, as well as by their practitioners; and
3. other illegal acts that shall be subjected to administrative penalties imposed by the CBIRC.
Article 14 Local offices shall be responsible for imposing administrative penalties against the following illegal acts within their jurisdictions:
1. those committed by banking institutions with legal person status which are under the direct regulation of local offices, as well as by their practitioners;
2. those committed by branches of banking institutions with legal person status and their practitioners;
3. those committed by branches of insurance companies and their practitioners;
4. those committed by insurance intermediaries and their practitioners;
5. illegal establishment of insurance institutions and illegal operation of insurance business; and
6. other illegal acts that shall be subjected to administrative penalties imposed by local offices.
Article 15 If an illegal act is committed in a different place, it shall be under the jurisdiction of the local office of the place where it occurs. The local office of the place where the act occurs shall promptly notify the local office of the place where the perpetrator is located, and the local office of the place where the perpetrator is located shall actively cooperate in the investigation and penalization of the illegal act.
If the local office of the place where an illegal act occurs considers it inappropriate to exercise jurisdiction, it may transfer the case to be under the jurisdiction of the local office of the place where the perpetrator is located.
The local office of the place where an illegal act occurs or the local office of the place where the perpetrator is located may solicit opinions from the other party before making a decision on administrative penalty, and shall inform the other party of the penalty result in writing.
Article 16 If it is found through cross inspection (investigation) or cross-regional inspection (investigation) that an administrative penalty needs to be imposed against an illegal act, the case shall be submitted to the regulatory authority with jurisdiction for filing, investigation and penalization, and relevant evidential materials shall be handed over in due time.
Article 17 If a local office finds that an illegal act is not under its jurisdiction, it shall transfer the case to the local office with jurisdiction. If two or more local offices have jurisdiction over the same illegal act, the local office that files the case first shall exercise jurisdiction.
In the case of unclear or debatable jurisdiction, the local offices shall report the case to their common institution at the next higher level for designation of jurisdiction.
Article 18 An institution at a higher level may directly investigate and penalize illegal acts that shall be investigated and penalized by institutions at lower levels, may also authorize those at lower levels to investigate and penalize illegal acts that shall be investigated and penalized by it, or authorize those at lower levels to investigate and penalize illegal acts that shall be investigated and penalized by other institutions at lower levels.
In the case of authorized jurisdiction, a written authorization document shall be issued.
Article 19 For illegal acts of telemarketing insurance which are under the jurisdiction of local offices, in principle the specific place of jurisdiction shall be determined in accordance with the following requirements:
1.
......