Provisions on the Announcement of Market Oversight and Management Administrative Punishments (Draft Revisions for the Solicitation of Public Comments)

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Source:http://zqyj.chinalaw.gov.cn/index#
Comment Period: Until March 22

Article 1: These Provisions are drafted on the basis of the "Administrative Punishments Law", "Provisional Regulations on the Announcement of Enterprise Information", the "Open Government Information Regulations", and other laws, regulations, and provisions of the State Council, so as to implement the State Council's Plan for the Registration System on Registered Capital, to further transform market oversight and management, to strengthen credit oversight of market entities, to promote social governance, and the order of fair market competition.

Article 2: The departments for market oversight and management, intellectual property rights management, and drug oversight and management shall publicly announce information related to administrative punishment decisions made through the ordinary procedures. The information announced is to mainly include the administrative penalty decision document and a summary of the administrative penalty information.

Article 3: The departments for market oversight and management shall comply with the principles of legality, objectivity, timeliness, and standardization in announcing information on administrative punishments.

Article 4: The departments for market oversight and management shall draft administrative punishment decision documents in strict accordance with the "Market Oversight and Management Provisional Provisions on Administrative Punishment Procedures, and draft a summary of the administrative punishment information to be attached to the front of the administrative punishment decision. The summary of the administrative punishment information is to include: the administrative punishment document number, the basic information on the party given an administrative punishment, the type of unlawful conduct, the content of the administrative punishment, the name of the administrative organ that made the administrative punishment decision, and the date the decision was made.

Article 5: The departments for market oversight and management shall establish and complete systems for secrecy review of administrative punishment information in accordance with the "PRC Law on the Protection of State Secrets" and other relevant laws and regulations. Announcements of administrative punishment information must not leak state secrets, and must not endanger national security, public safety, economic security, and social stability.

Article 6: Departments for market oversight and management that are announcing administrative punishment information shall delete content related to commercial secrets and natural persons' residence (except where identical to their place of business), contact methods, identification numbers, bank account numbers, and other personal information. Where the departments for market oversight and management find that it is necessary to announce them, they shall report for approval to a higher-level department for market oversight and management.

Article 7: Except for deletions made in accordance with article 5 of these Provisions, the content of administrative punishment decision documents released by the departments for market oversight and management shall be the same as that in the administrative punishment decision documents served on the party being given the administrative punishment.

Article 8: When administrative punishment decision documents are served, the departments for market oversight and management shall inform the party receiving the punishment that information on the administrative punishment will be publicly announced.

Article 9: The departments for market oversight and management shall announce information on administrative punishments decisions made using the ordinary procedures against all types of lawfully registered enterprise, sole proprietorships, specialized farmers collectives through the National Enterprise Credit Information Publicity System.

Article 10: Where the market oversight and management department that made an administrative punishment decision and the registration organ for the party receiving the administrative punishment are in the same province, autonomous region, or directly-governed municipality, the department that made the administrative punishment decision shall announce the information on the administrative punishment though the National Enterprise Credit Information Publicity System within 20 working days of making the administrative punishment decision or modifying the administrative punishment decision.

Article 11: Where the department for market oversight and management that made the administrative punishment decision and the registration organ for the party receiving the punishment are not in the same province, autonomous region, or directly-governed municipality, the department that made the administrative punishment decision shall having the department for market oversight and management for the province, autonomous region, or directly-governed municipality in which it is located send notice of the administrative punishment information to the department for market oversight and management of the province, autonomous region, or directly-governed municipality in which the registration organ is located within 10 days of the administrative punishment decision being made or the administrative punishment being modified; and the and the receiving department is then to assist in announcing the administrative punishment information through the National Enterprise Credit Information System.

Article 12: Where circumstances change such as administrative punishment decisions being modified, withdrawn, or found to be unlawful as a result of administrative reconsiderations, administrative litigation, or other reasons, this shall be noted in a conspicuous fashion on the National Enterprise Credit Information Publicity System. The content of the notice is to include the name of the organ that made the decision for the modification or withdrawal, or the finding of illegality, the content of the decision, the date it was made, and other relevant information.

Article 13: Where the departments for market oversight and management discover that the administrative punishment information they announced is incorrect, they shall promptly correct it. Where citizens, legal persons, or other organizations have evidence proving that the administrative punishment information announced by the departments for market oversight and management is incorrect, they have the right to request that that department make corrections.

Article 14: The period for the announcement of administrative punishment information by the departments for market oversight and management is to be 3 years from the announcement. Administrative punishment information for which the announcement period is complete is to be recorded on the National Enterprise Credit Information Publicity System, but is not longer to be publicly announced.

Article 15: Where a set base amount of the disclosure period for administrative punishment information is complete, and the following conditions are met, the party receiving the administrative punishment may apply to the department for market oversight and management that made the administrative punishment decision to end further disclosure:

(1) The party has already performed the obligations provided for in the administrative punishment decision;

(2) The party has not received an administrative punishment given by the departments for market oversight and management applying ordinary procedures since the date on which the administrative punishment decision was made;

(3) The party has not been entered into the directory of abnormal business operations or the List of Untrustworthy Enterprises with Serious Violations;

(4) The party has made a credit pledge that has already been announced through the National Enterprise Credit Information Publicity System.

The base disclosure period for administrative punishment information is to be from 3 months to 1 year with the specific period being separately provided for by the State Administration of Market Regulation on the basis of the circumstances of the application of the administrative punishments.

After the departments for market oversight and management accept an application, they may conduct an administrative admonishment of the party given the administrative punishment, urging them to establish and improve relevant systems, to strictly enforce relevant provisions, and to operate in a law-abiding and trustworthy manner.

Where parties receive administrative punishments or dispositions of an order to stop operations, cancellation (revoking or deregistration) of permits, or cancellation of business permits, as well as in other circumstances provided for by the State Administration for Market Regulation, they must not apply to stop further announcement.

Article 16: The departments for market oversight and management shall conduct a review and verification of the parties' applications within 15 days and make a decision on whether to continue announcement. Where the decision is to stop further announcement, the data on the National Enterprise Credit Information Publicity System shall be adjusted within 5 working days, and the announcement information shall be withdrawn.

Article 17: Each provincial, autonomous region, and directly-governed municipality department for market oversight and management shall promptly improve the National Enterprise Credit Information Publicity System in accordance with these Provisions, by providing usable and convenient methods for searches and access, facilitating public searches and access of administrative punishment information.

Each provincial, autonomous region, and directly-governed municipality department for market oversight and management shall accelerate improvements of the enforcement and case-handling management system, to ensure that data is correct and complete.

Article 18: With the exception of announcements made through the National Enterprise Credit Information Publicity System in accordance with article 9 of these Provisions, information related to other administrative punishment decisions made applying ordinary procedures shall be announced on portal websites, designated websites, and so forth.

The departments for market oversight and management may announce information on all types of administrative punishment given by that department on portal websites, designated websites, and so forth.

Article 19: Departments for market oversight and management shall strictly perform duties to announce administrative punishment information, following the principle of "having the person handling the case, enter the case and be responsible for it" to establish and complete systems for internal review and management of administrative punishment information announcements. The case-handling body shall promptly and correctly record administrative punishment information. The body with responsibility for the work of announcing enterprise credit information shall strengthen routine management and coordination of administrative punishment information announcements.

Article 20: The State Administration for Market Regulation is responsible for guiding and overseeing local departments for market oversight and management's efforts on the announcement of administrative punishment information, and for drafting standards, specifications, and technical requirements related to the announcement of administrative punishment information on the National Enterprise Credit Information Publicity System.

Each provincial, autonomous region, and directly-governed municipality department for market oversight and management is responsible for organizing, guiding, and overseeing the work of all levels of local department for market oversight in their jurisdiction for the announcement of administrative punishment information, and may draft detailed implementation rules on the basis of these Provisions and in consideration of actual conditions.

Article 21: Where the departments for market oversight and management have not performed their duties in accordance with these Provisions, the market oversight and management department at the level above is to order corrections; where the circumstances are serious, the responsible managers and other directly responsible persons are to address in in accordance with the relevant provisions.

Article 22: Where citizens, legal persons, or other organizations apply for the disclosure of information related to administrative punishments, it is to be handled in accordance with the "PRC Regulations on Open Government Information" and relevant laws and regulations.

Article 23: These Provisions are to be interpreted by the State Administration for Market Regulation.

Article 24: These Provisions take effect on ___,___ 20__.

 

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