Provisions on the Market Regulatory Procedure for Administrative Punishment (Amended in 2022)
Provisions on the Market Regulatory Procedure for Administrative Punishment (Amended in 2022)
Provisions on the Market Regulatory Procedure for Administrative Punishment (Amended in 2022)
Order of the State Administration for Market Regulation No. 61
September 29, 2022
(Issued by the Order of the State Administration for Market Regulation No. 2, amended for the first time according to Order of the State Administration for Market Regulation No. 42 on July 2, 2021; and amended for the second time according to the Order of the State Administration for Market Regulation No. 61 on September 29, 2022)
Chapter I General Provisions
Article 1 The Provisions are formulated in accordance with the Law of the People's Republic of China on Administrative Penalties, the Administrative Coercion Law of the People's Republic of China and other laws and administrative regulations in order to standardize the administrative penalty procedures for market regulatory departments, safeguard the lawful implementation of administrative penalties by market regulatory departments, and protect the legitimate rights and interests of natural persons, legal persons and other organizations.
Article 2 The Provisions shall apply to the imposition of administrative penalties by market regulatory departments.
Article 3 Market regulatory departments shall abide by the principles of impartiality and openness, and adhere to the combination of punishments and education in imposing administrative penalties, to ensure clear facts, conclusive evidence, correct applicable basis, lawful procedures and appropriate punishments.
Article 4 The imposition of administrative penalties by market regulatory departments shall be subject to the withdrawal system. The relevant persons involved in the handling of cases shall withdraw themselves if they have a direct interest in the cases or have other relations that may affect impartial law enforcement.
The withdrawal of the main principal of a market regulatory department shall be discussed and decided by principals of the market regulatory department collectively; the withdrawal of other principals of the market regulatory department shall be decided by the main principal of the market regulatory department; and the withdrawal of other relevant persons shall be decided by principals of the market regulatory department.
The case investigation will not cease until the decision of withdrawal is made.
Article 5 The market regulatory departments and the relevant persons involved in the handling of the cases shall maintain the confidentiality of state secrets, trade secrets and personal privacy they have known in the course of imposing administrative penalties
Article 6 Market regulatory departments at higher levels shall strengthen the supervision of market regulatory departments at lower levels in the latter's imposition of administrative penalties.
Market regulatory departments at all levels shall strengthen the supervision of their internal agencies and local offices and entrusted organizations in the latter's imposition of administrative penalties.
Chapter II Jurisdiction
Article 7 An administrative penalty shall fall under the jurisdiction of the market regulatory department at or above the county level of the place of occurrence of the illicit act, where the provisions of laws, administrative regulations and departmental rules provide otherwise, such provisions shall prevail.
Article 8 The market regulatory departments at the county level or at the level of cities divided into districts shall govern ex officio administrative penalty cases occurring within their respective jurisdictions. Where the provisions of laws, regulations and rules stipulate that the market regulatory departments at or above the provincial level have the jurisdiction over the cases, such provisions shall prevail.
Article 9 The local offices of market regulatory departments shall, within the scope of authority conferred by their departments, impose administrative penalties in the name of such departments, unless they are authorized by laws and regulations to impose administrative penalties in the name of local offices.
Market regulatory departments at or above the county level may appoint, in writing, within the statutory authority, organizations that meet the conditions prescribed in the Law of the People's Republic of China on Administrative Penalties to impose administrative penalties. The appointed organizations shall, within the scope of appointment, impose administrative penalties in the name of the administrative organs which grant the appointment; and shall not appoint other organizations or individuals to impose administrative penalties.
A letter of appointment shall specify the specific matters, authority, term, etc. of appointment. The administrative organ granting the authority and the organization appointed shall make public the letter of appointment.
Article 10 The illicit acts of online trading platform operators and online trading operators who sell goods or provide services through self-built websites and other network services shall fall under the jurisdiction of the market regulatory departments at or above the county level of the domiciles of such operators.
The illicit acts of the operators within the platforms shall be under the jurisdiction of the market regulatory departments at or above the county level of the places where they actually operate. If the market regulatory departments at or above the county level of the domiciles of the online trading platform operators first discover evidence of illicit acts or receive complaints or reports, they may have jurisdiction over the illicit acts.
Article 11 The imposition of administrative penalties for the use of mass media such as radio, film, television, newspapers, periodicals, and the Internet to release illegal advertisements shall be under the jurisdiction of the market regulatory departments of the places where the advertisement releasers are located. If it is difficult for the market regulatory departments of the places where advertisement releasers are located to govern advertisers and advertisement operators, the illicit situation of the advertisers and the advertisement operators may be transferred to the market regulatory departments of the places where the advertisers and the advertisement operators are located.
With regard to illicit acts related to advertisements on the Internet, if the market regulatory departments of the places where the advertisers or advertisement operators first discover evidence of the illicit acts or receive complaints or reports, they may have jurisdiction over the illicit acts.
The imposition of administrative penalties for the release of illegal advertisements on the Internet by advertisers themselves shall be under the jurisdiction of the market regulatory departments of the places where the advertisers are located.
Article 12 An illicit act of a party, over which two or more market regulatory departments have jurisdiction, shall fall under the jurisdiction of the market regulatory department that places the case on file in the very first place.
Article 13 Where two or more market regulatory departments have a dispute over jurisdiction, they shall solve the dispute through negotiation within seven working days upon occurrence of the dispute, if the negotiation fails, they shall bring the dispute to the common market regulatory department at the next higher level for designation of jurisdiction; or the common market regulatory department at the next higher level may directly designate the competent authority.
Article 14 Where a market regulatory department finds that it has no jurisdiction over a case which is placed on file for investigation and handling, the case shall be transferred to the market regulatory department with competent jurisdiction. If the market regulatory department to which the case has been transferred has any objection to the jurisdiction, it shall report the same to the common market regulatory department at the next higher level for designation of jurisdiction, and shall not transfer the case itself again.
Article 15 Where a market regulatory department at the higher level may, when it deems necessary, directly handles a case that falls under the jurisdiction of a market regulatory department at the lower level, it may also transfer a case under its jurisdiction to a competent market regulatory department at the lower level. A market regulatory department at the higher level may not transfer a case that falls under its jurisdiction as expressly prescribed in laws, regulations and rules to a market regulatory department at the lower level.
A market regulatory department at the higher level may, when it deems necessary, directly handles a case that falls under the jurisdiction of a market regulatory department at the lower level, or may designate a case under the jurisdiction of a market regulatory department at the lower level to other competent market regulatory departments at the lower level.
A market regulatory department at the lower level may request the market regulatory department at the next higher level to exercise or designate the jurisdiction over a case that shall fall under the jurisdiction of the market regulatory department at the lower level if it deems that such case is difficult to handle due to special reasons.
Article 16 Where a market regulatory department at the next higher level is requested to exercise or designate the jurisdiction of a case, it shall designate the jurisdiction of the case within seven working days upon receipt of the submitted materials.
Article 17 Where a market regulatory department finds that a case that is placed on file for investigation and handling falls under the jurisdiction of another administrative department, the case shall be timely transferred to such department in accordance with the law.
Where a market regulatory department finds that an illicit act is suspected of constituting a crime, it shall timely refer the case to a judicial organ, and undergo the procedures for handover of the items involved in the case and other materials related to the case in accordance with relevant regulations.
Chapter III Ordinary Procedures for Administrative Penalties
Article 18 A market regulatory department shall verify the evidence of an illicit act discovered subject to its supervision and inspection powers, or through such means as reporting, transfer by other departments, and assignment by authorities at higher levels, within 15 working days of discovery of the evidence or receipt of materials, and the principal of the market regulatory department shall decide whether to place the case on file; under special circumstances, upon approval by the principal of the market regulatory department, the time limit may be extended by 15 working days, unless otherwise stipulated by laws, regulations and rules.
The time required for testing, inspection, quarantine, appraisal and identification of rights holders shall not be included in the time limit specified in the preceding paragraph.
Article 19 Upon examination, a case shall be place on file if all the following conditions are met:
1. preliminary evidence indicates that there is a violation of market regulatory laws, regulations or rules;
2. administrative penalties shall be imposed in accordance with market regulatory laws, regulations or rules;
3. the case falls under the jurisdiction of the department; and
4. the statutory period for imposing administrative penalties have not expired.
Where a decision to put a case on file is made, a case filing approval form shall be filled out, and the head of the case handling institution shall designate two or more persons who are eligible for administrative law enforcement to be responsible for the investigation and handling of the case.
Article 20 Upon examination, A market regulatory department may make a decision not to put a case on file under any of the following circumstances:
1.
......
Order of the State Administration for Market Regulation No. 61
September 29, 2022
(Issued by the Order of the State Administration for Market Regulation No. 2, amended for the first time according to Order of the State Administration for Market Regulation No. 42 on July 2, 2021; and amended for the second time according to the Order of the State Administration for Market Regulation No. 61 on September 29, 2022)
Chapter I General Provisions
Article 1 The Provisions are formulated in accordance with the Law of the People's Republic of China on Administrative Penalties, the Administrative Coercion Law of the People's Republic of China and other laws and administrative regulations in order to standardize the administrative penalty procedures for market regulatory departments, safeguard the lawful implementation of administrative penalties by market regulatory departments, and protect the legitimate rights and interests of natural persons, legal persons and other organizations.
Article 2 The Provisions shall apply to the imposition of administrative penalties by market regulatory departments.
Article 3 Market regulatory departments shall abide by the principles of impartiality and openness, and adhere to the combination of punishments and education in imposing administrative penalties, to ensure clear facts, conclusive evidence, correct applicable basis, lawful procedures and appropriate punishments.
Article 4 The imposition of administrative penalties by market regulatory departments shall be subject to the withdrawal system. The relevant persons involved in the handling of cases shall withdraw themselves if they have a direct interest in the cases or have other relations that may affect impartial law enforcement.
The withdrawal of the main principal of a market regulatory department shall be discussed and decided by principals of the market regulatory department collectively; the withdrawal of other principals of the market regulatory department shall be decided by the main principal of the market regulatory department; and the withdrawal of other relevant persons shall be decided by principals of the market regulatory department.
The case investigation will not cease until the decision of withdrawal is made.
Article 5 The market regulatory departments and the relevant persons involved in the handling of the cases shall maintain the confidentiality of state secrets, trade secrets and personal privacy they have known in the course of imposing administrative penalties
Article 6 Market regulatory departments at higher levels shall strengthen the supervision of market regulatory departments at lower levels in the latter's imposition of administrative penalties.
Market regulatory departments at all levels shall strengthen the supervision of their internal agencies and local offices and entrusted organizations in the latter's imposition of administrative penalties.
Chapter II Jurisdiction
Article 7 An administrative penalty shall fall under the jurisdiction of the market regulatory department at or above the county level of the place of occurrence of the illicit act, where the provisions of laws, administrative regulations and departmental rules provide otherwise, such provisions shall prevail.
Article 8 The market regulatory departments at the county level or at the level of cities divided into districts shall govern ex officio administrative penalty cases occurring within their respective jurisdictions. Where the provisions of laws, regulations and rules stipulate that the market regulatory departments at or above the provincial level have the jurisdiction over the cases, such provisions shall prevail.
Article 9 The local offices of market regulatory departments shall, within the scope of authority conferred by their departments, impose administrative penalties in the name of such departments, unless they are authorized by laws and regulations to impose administrative penalties in the name of local offices.
Market regulatory departments at or above the county level may appoint, in writing, within the statutory authority, organizations that meet the conditions prescribed in the Law of the People's Republic of China on Administrative Penalties to impose administrative penalties. The appointed organizations shall, within the scope of appointment, impose administrative penalties in the name of the administrative organs which grant the appointment; and shall not appoint other organizations or individuals to impose administrative penalties.
A letter of appointment shall specify the specific matters, authority, term, etc. of appointment. The administrative organ granting the authority and the organization appointed shall make public the letter of appointment.
Article 10 The illicit acts of online trading platform operators and online trading operators who sell goods or provide services through self-built websites and other network services shall fall under the jurisdiction of the market regulatory departments at or above the county level of the domiciles of such operators.
The illicit acts of the operators within the platforms shall be under the jurisdiction of the market regulatory departments at or above the county level of the places where they actually operate. If the market regulatory departments at or above the county level of the domiciles of the online trading platform operators first discover evidence of illicit acts or receive complaints or reports, they may have jurisdiction over the illicit acts.
Article 11 The imposition of administrative penalties for the use of mass media such as radio, film, television, newspapers, periodicals, and the Internet to release illegal advertisements shall be under the jurisdiction of the market regulatory departments of the places where the advertisement releasers are located. If it is difficult for the market regulatory departments of the places where advertisement releasers are located to govern advertisers and advertisement operators, the illicit situation of the advertisers and the advertisement operators may be transferred to the market regulatory departments of the places where the advertisers and the advertisement operators are located.
With regard to illicit acts related to advertisements on the Internet, if the market regulatory departments of the places where the advertisers or advertisement operators first discover evidence of the illicit acts or receive complaints or reports, they may have jurisdiction over the illicit acts.
The imposition of administrative penalties for the release of illegal advertisements on the Internet by advertisers themselves shall be under the jurisdiction of the market regulatory departments of the places where the advertisers are located.
Article 12 An illicit act of a party, over which two or more market regulatory departments have jurisdiction, shall fall under the jurisdiction of the market regulatory department that places the case on file in the very first place.
Article 13 Where two or more market regulatory departments have a dispute over jurisdiction, they shall solve the dispute through negotiation within seven working days upon occurrence of the dispute, if the negotiation fails, they shall bring the dispute to the common market regulatory department at the next higher level for designation of jurisdiction; or the common market regulatory department at the next higher level may directly designate the competent authority.
Article 14 Where a market regulatory department finds that it has no jurisdiction over a case which is placed on file for investigation and handling, the case shall be transferred to the market regulatory department with competent jurisdiction. If the market regulatory department to which the case has been transferred has any objection to the jurisdiction, it shall report the same to the common market regulatory department at the next higher level for designation of jurisdiction, and shall not transfer the case itself again.
Article 15 Where a market regulatory department at the higher level may, when it deems necessary, directly handles a case that falls under the jurisdiction of a market regulatory department at the lower level, it may also transfer a case under its jurisdiction to a competent market regulatory department at the lower level. A market regulatory department at the higher level may not transfer a case that falls under its jurisdiction as expressly prescribed in laws, regulations and rules to a market regulatory department at the lower level.
A market regulatory department at the higher level may, when it deems necessary, directly handles a case that falls under the jurisdiction of a market regulatory department at the lower level, or may designate a case under the jurisdiction of a market regulatory department at the lower level to other competent market regulatory departments at the lower level.
A market regulatory department at the lower level may request the market regulatory department at the next higher level to exercise or designate the jurisdiction over a case that shall fall under the jurisdiction of the market regulatory department at the lower level if it deems that such case is difficult to handle due to special reasons.
Article 16 Where a market regulatory department at the next higher level is requested to exercise or designate the jurisdiction of a case, it shall designate the jurisdiction of the case within seven working days upon receipt of the submitted materials.
Article 17 Where a market regulatory department finds that a case that is placed on file for investigation and handling falls under the jurisdiction of another administrative department, the case shall be timely transferred to such department in accordance with the law.
Where a market regulatory department finds that an illicit act is suspected of constituting a crime, it shall timely refer the case to a judicial organ, and undergo the procedures for handover of the items involved in the case and other materials related to the case in accordance with relevant regulations.
Chapter III Ordinary Procedures for Administrative Penalties
Article 18 A market regulatory department shall verify the evidence of an illicit act discovered subject to its supervision and inspection powers, or through such means as reporting, transfer by other departments, and assignment by authorities at higher levels, within 15 working days of discovery of the evidence or receipt of materials, and the principal of the market regulatory department shall decide whether to place the case on file; under special circumstances, upon approval by the principal of the market regulatory department, the time limit may be extended by 15 working days, unless otherwise stipulated by laws, regulations and rules.
The time required for testing, inspection, quarantine, appraisal and identification of rights holders shall not be included in the time limit specified in the preceding paragraph.
Article 19 Upon examination, a case shall be place on file if all the following conditions are met:
1. preliminary evidence indicates that there is a violation of market regulatory laws, regulations or rules;
2. administrative penalties shall be imposed in accordance with market regulatory laws, regulations or rules;
3. the case falls under the jurisdiction of the department; and
4. the statutory period for imposing administrative penalties have not expired.
Where a decision to put a case on file is made, a case filing approval form shall be filled out, and the head of the case handling institution shall designate two or more persons who are eligible for administrative law enforcement to be responsible for the investigation and handling of the case.
Article 20 Upon examination, A market regulatory department may make a decision not to put a case on file under any of the following circumstances:
1.
......