MOFCOM Decree No.8 of 2018 on the Measures of the Ministry of Commerce for the Implementation of Administrative Penalties

Date: 2019-01-02 01:53:55, Source: MOFCOM, Today/Total Visits : 2/280

The Measures of the Ministry of Commerce for the Implementation of Administrative Penalties, which were adopted upon deliberation at the tenth executive meeting of the current session of the Ministry of Commerce on November 24, 2018, are hereby promulgated and shall come into force as of January 11, 2019. The Measures of the Ministry of Commerce for the Implementation of Administrative Penalties (Trial) (MOFCOM Decree No.1 of 2005) shall be repealed simultaneously.

Minister, Zhong Shan
December 10, 2018

Measures of the Ministry of Commerce for the Implementation of Administrative Penalties

Article 1 The Measures of the Ministry of Commerce for the Implementation of Administrative Penalties (hereinafter referred to as the "Measures") are formulated in accordance with the Law of the People's Republic of China on Administrative Penalties in order to standardize the imposition of administrative penalties by the Ministry of Commerce (MOFCOM), ensure the legality and effectiveness of administrative penalties, protect the legitimate rights and interests of citizens, legal persons and other organizations and safeguard the public interests and economic order.

Article 2 Where a citizen, legal person or any other organization shall be subject to an administrative penalty imposed by the MOFCOM for violating the administration order, the Measures shall apply.

Article 3 The principles of justness and openness shall be followed by the MOFCOM in the imposition of administrative penalties so as to ensure the rights of citizens, legal persons or other organizations to state their cases, to defend themselves, to request hearings, to apply for administrative reconsideration or administrative litigation.

Article 4 Any administrative penalty imposed by the MOFCOM shall be based on laws, administrative regulations and rules and shall be implemented according to legal procedures.

Article 5 Administrative penalties shall be imposed within the statutory scope of power of the MOFCOM. No affiliated organization of the MOFCOM (including internal organs, accredited representatives’ offices, and public institutions directly under the MOFCOM) may impose any administrative penalty in its own name.

Where there is no relevant provision in any law, administrative regulation or rule, the MOFCOM shall not entrust any organization to impose any administrative penalty.

Article 6 The MOFCOM shall adopt a system of separating case investigation from case trial for administrative penalties.

Article 7 The Administrative Penalty Committee shall be established by the MOFCOM to function as the trial organ for cases of administrative penalties of the MOFCOM. The Administrative Penalty Committee shall try cases of administrative penalties by way of holding trial meetings.

The institution of legal affairs of the MOFCOM is the working office of the Administrative Penalty Committee of the MOFCOM, which is responsible for organizing and arranging trial meetings of the Administrative Penalty Committee, organizing hearings, listening to the statements or defenses of the parties concerned, formulating the relevant legal documents and undertaking the daily work of the Administrative Penalty Committee.

Article 8 The business department under the MOFCOM involved in a case of administrative penalty shall act as the investigation organ. Where necessary, the said business department may investigate the case in concert with other departments concerned.

Article 9 Where any relevant department of the MOFCOM finds any act of any citizen, legal person or any other organization to be in violation of the administration order, an investigation shall be started in a timely manner.

Article 10 The investigation organ shall conduct investigations in a comprehensive, objective and impartial manner and collect the relevant evidence, and may, when necessary, conduct inspections in accordance with laws and regulations.

When an investigation or inspection is conducted, there shall not be less than two law enforcement officials. They shall show the party concerned or the relevant persons certificates. A transcript shall be made for related inquiries or inspections.

Where a law enforcement official has direct interests with the party concerned, he or she shall withdraw from the case.

Article 11 Where the investigation into a case of an administrative penalty is concluded, and an administrative penalty is to be imposed, the investigation organ shall prepare a Termination Report for Case Investigation and a catalog of evidence, which shall, along with evidentiary materials, be transferred to the Administrative Penalty Committee of the MOFCOM.

The facts, investigation process and relevant evidence of the case and the laws or regulations violated shall be elaborated in the Termination Report for Case Investigation. A preliminary opinion on the settlement of the case and the basis thereof shall also be included.

Article 12 After the Termination Report for Case Investigation, evidence and other materials are transferred to the Administrative Penalty Committee, the institution of legal affairs shall make a preliminary examination.

Those who are engaged in the examination of administrative penalties for the first time shall obtain legal professional qualifications through the national unified legal professional qualification examination.

Article 13 Where the institution of legal affairs deems that some specific facts are ambiguous in a case, it may require the investigation organ to give explanations and elaborations. Where necessary, the institution of legal affairs may directly investigate into the relevant entities and individuals to find out the truth.

Article 14 Where the institution of legal affairs, through examination, deems that, in a case, the facts are ambiguous or the evidence is not sufficient, it may transfer the case to the investigation organ for supplementary investigation.

Article 15 Where the institution of legal affairs, through examination, deems that the major facts of the case are clear and the evidence is sufficient, it shall prepare a Case Examination Report. The Case Examination Report shall include the basic circumstances of a case, the facts of illegality, the administrative penalty decision to be made and basis thereof.

Article 16 The institution of legal affairs shall submit the Termination Report for Case Investigation, the Case Examination Report and other materials to the Administrative Penalty Committee, which shall try the case in the form of a trial meeting.

Article 17 The Administrative Penalty Committee shall examine the following content of a case:

1. whether or not the facts of illegality are clear;
2. whether or not the evidence is conclusive;
3. whether or not it is in compliance with legal procedures;
4. whether or not the statements and defenses of the parties concerned are well-grounded;
5. which law or regulation shall be applied; and
6. the category and extent of punishment.

Article 18 The Administrative Penalty Committee shall hold a trial meeting and, through collective discussions and sufficient negotiations, put forward the following opinions for settling the case in light of the actual situation:

1. whoever is deemed to be suspected of constituting a crime shall be transferred to the judicial organ by the investigation organ in accordance with the law;

2. where the facts of illegality are not deemed tenable, no administrative penalty may be imposed;

3. where the illegal act is minor and may be exempted from punishment in accordance with the law, no administrative penalty may be imposed; and

4. where there is an illegal act which is subject to an administrative penalty, the category and extent of the administrative penalty to be imposed shall be determined in light of the seriousness of the circumstances and the actual situation.

Article 19 The institution of legal affairs shall, in accordance with the treatment opinions of the trial meeting of the Administrative Penalty Committee, prepare a Notification of an Administrative Penalty, notifying in writing the parties concerned of the facts, reasons and basis of the administrative penalty to be imposed, and notify them of the right of statement and the right to defend themselves in accordance with the law.

Where in an administrative penalty a fine of more than RMB 30,000 is imposed or production or business suspension is ordered, or a permit or license is revoked, the party concerned shall be notified in the Notification of an Administrative Penalty of the right to request a hearing.

Where any party concerned requests to make a statement or defend himself or herself or hold a hearing, the request shall be made to the institution of legal affairs within three days upon receipt of the Notification of an Administrative Penalty.

The institution of legal affairs shall fully attend to the opinions of the party concerned and re-examine the relevant circumstances.

Article 20 Where any party concerned requests the holding of a hearing, the institution of legal affairs shall organize a hearing in accordance with the Law of the People's Republic of China on Administrative Penalties.

Article 21 Where a party concerned has made a statement or defense opinion, or a hearing is held according to an application of the party concerned, which may affect the administrative penalty decision as deemed by the institution of legal affairs upon examination, the Administrative Penalty Committee shall hold a hearing to retry the case.

Article 22 The institution of legal affairs shall prepare an Administrative Penalty Decision in accordance with the treatment opinions of the trial meeting of the Administrative Penalty Committee. The content of the administrative penalty decision shall comply with Article 39 of the Law of the People's Republic of China on Administrative Penalties and, if the party concerned refuses to accept the penalty decision, shall set out the way of and time limit for it to apply for administrative reconsideration or to lodge an administrative lawsuit.

Article 23 After the Notification of an Administrative Penalty and the Administrative Penalty Decision are rendered, they shall be served by the institution of legal affairs on the parties concerned in accordance with Article 40 of the Law of the People's Republic of China on Administrative Penalties and other provisions.

Article 24 The parties concerned shall fulfill the administrative penalty decision within the time limit specified in the Administrative Penalty Decision. In the event that anyone fails to fulfill the administrative punishment decision in the prescribed period, the MOFCOM may take the measures provided in Article 51 of the Law of the People’s Republic of China on Administrative Penalties for enforcement.

Article 25 Where the MOFCOM implements such administrative penalties as imposing fines and confiscating illegal gains, it shall adopt a system of separating fines from payments. Fines and illegal gains confiscated shall be turned over to the local State Treasury by the parties concerned.

Article 26 The Administrative Penalty Decision shall be published on the website of the MOFCOM for public inquiry, unless any national secret, commercial secret or individual privacy or any information which is prohibited in any law or regulation to be made public is involved.

Article 27 The Measures shall not apply to the disciplinary sanctions or other kinds of punishment imposed by the MOFCOM on functionaries of the departments and organs under the MOFCOM.

Article 28 The Measures shall be construed by the MOFCOM.

Article 29 The Measures shall come into force as of January 11, 2019, and the Measures of the Ministry of Commerce for the Implementation of Administrative Penalties (Trial) (MOFCOM Decree No.1 of 2005) shall be repealed simultaneously.


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