Measures on the Management of the List of the Untrustworthy with Serious Violations (Draft Revisions for Solicitation of Public Comment)

[Source]http://www.saic.gov.cn/hd/zjdc/201907/t20190710_303312.html
【意见日期】至2019年8月10日

Chapter I: General Provisions

Article 1: These Measures are formulated on the basis of the "Provisional Regulations on Release of Information by Enterprises" and other laws and regulations, so as to strengthen management of the List of the Untrustworthy with Serious Violations, strengthen credit regulation, and expand public oversight.

Article 2: Management of the List of the Untrustworthy with Serious Violations, as used in these Measures, refers to county-level and higher market supervision management departments, provincial-level and higher drug oversight and management and intellectual property rights management departments (hereinafter 'responsible departments' listing and removal of unlawful and untrustworthy entities, from the list List of the Untrustworthy with Serious Violations, implementing punishments for untrustworthiness, carrying out credit restoration, and so forth, and making announcements through the national enterprise credit information announcement system.

Article 3: These Measures apply to violations the following entities that have violated laws and regulations on market oversight and management (including drug oversight and management and intellectual property rights management) where the circumstances are serious:

(1) enterprises, Individual-operated businesses, and other organizations;

(2) natural persons serving in specified positions that bear responsibility for unlawful and untrustworthy conduct in accordance with relevant laws, regulations, and these Measures;

(3) natural persons that directly participate in market business activities.

Article 4: Entry of entities into the List of the Untrustworthy with Serious Violations should comprehensively consider the entities' subjective malice, the circumstances of violations, the harmful consequences, and other such factors. Where the circumstances are slight and did not create seriously harmful consequences, the may be not entered into the List of the Untrustworthy with Serious Violations.

Article 5: The State Administration for Market Regulation is responsible for leading and organizing the work of managing the List of the Untrustworthy with Serious Violations for the entire country.

Other responsible departments are responsible for the work of managing the List of the Untrustworthy with Serious Violations in their jurisdictional region and field.

Chapter II: Listing Procedures

Article 6: Where entities have any of the following circumstances, the responsible departments are to enter them onto the List of the Untrustworthy with Serious Violations:

(1) Were entered in the irregular business directory, or irregular patent agent business directory for 3 years without having performed corresponding obligations.

(2) Where investigated by responsible departments for relevant violations and were pursued for criminal responsibility.

(3) Violated relevant provisions of laws or regulations and had administrative permits, qualifications, or credentials cancelled or revoked by responsible departments.

(4) Refused to carry out an effective administrative punishment or administrative handling decision by the responsible departments.

(5) Violated obligations to cooperate with investigations, or obstructed responsible departments performance of legally-prescribed regulatory duties, in the course of responsible departments' investigation and case filing, accident investigation, or spot checks of food; such as by refusing to cooperate with investigation, making false or concealing reports, faking or intentionally destroying the scenes of accidents, not immediately organizing rescue, refusing to provide relevant materials, submitting false materials, or concealing, destroying, or transferring evidence.

(6) Caused serious consequences and vile social impact by doing business without a license, and were given administrative punishments by responsible departments.

(7) Directly responsible personnel of market entities that had registration revoked due to provision of false materials or employing other fraudulent tactics to conceal material facts in obtaining registration.

(8) Produced or sold, provided, or used products, goods, or services no suitable for safeguarding physical health and safety in persons and property; causing serious harm to persons' health or security in property, with a vile social impact, and give administrative punishments by responsible departments.

(9) Been found to have defects but not stopped production or sale, or imported defective products, refused to cooperate in investigation of defects, or refused to do a recall after being ordered to do so, and other serious violations of recall responsibility.

(10) Refused to perform responsibilities for products' '3 inclusives' [repair, replacement, return], with vile social impact, and were given administrative punishment by the market oversight and management departments.

(11) Had major product quality safety incidents occur involving violations, and were given administrative punishments by responsible departments.

(12) Produced or sold fake or shoddy medicine, or dealt with as having done so; produced or sold special medicines in violation of laws or regulations, causing the medicine to enter illegal channels.

(13) Drug, medical instrument, or cosmetic enterprises were ordered to stop production or suspend business for rectification.

(14) Produced or imported unregistered special use cosmetics with as well as cosmetics containing illegal additives that might harm people's health, and were given administrative punishments by the responsible departments.

(15) Enterprises engaged in pharmaceutical research, production or sales and their legal representatives or directly responsible managers and other directly responsible personnel submitted false clinical experiment or market permit declaration materials; fabricated production verification records or modified product numbers; or submitted fake lot release declaration materials or employed other fraudulent tactics to obtain lot release proofs.

(16) Where it was decided they should stop accepting trademark representation business.

(17) Received administrative punishments 2 times for trademark encroachment in 5 years; or received administrative notice for irregular patent applications twice within 5 years, or other serious circumstances.

(18) Proprietors' caused, serious consequences and vile social impact by acts of unfair competition or anti-trust, and were given administrative punishment by the market oversight and management departments.

(19) Received administrative punishments 3 times in 2 years for illegal direct sales, or where the circumstances of direct sales are serious; organized and planned direct sales; or received administrative punishments 3 times in 2 years for facilitating direct sales.

(20) Used form clauses or carried out fraud, coercion, malicious collusion, compelled transactions or other tactics to harm national interests of the societal public interest or infringe consumers' lawful rights and interests, causing serious consequences with vile social impact, and were given administrative punishments by the market oversight and management departments.

(21) Online transaction businesses increased the reputation of one's own or others' businesses or products through means such as fake transactions, deleting negative appraisals, authorizing others to publish false positive appraisals; or harmed the reputation of others' businesses or goods through means of distortion or publishing falsehoods, such as making untrue comparisons between their goods and those of other businesses, or making untrue negative appraisals of other business's products; causing serious consequences and vile social impacts, and being given administrative punishments by the market oversight and management departments.

(22) Online transaction plaform operators that have flaws and major flaws in their management systems, or that abuse service agreements, transaction rules, and technological tactics; or avoid or lacklusterly perform obligations to review the qualifications or credentials of businesses in the platform or obligations to safeguard consumers on unreasonable grounds such as commercial secrets or information security, as well as obligations to make information reports to the market oversight and management departments, or not promptly, completely and truthfully reporting; obstructing market oversight and management efforts, creating serious consequences with a vile social impact.

(23) Proprietors that, after collecting advance charges, stop or close business, or move to a different service venue, where the market oversight and management departments are unable to contact the proprietor for 60 days after receiving complaints, seriously infringing consumers' lawful rights and interests.

(24) Published false advertisements causing serious consequences and vile social impact, and were given administrative punishment by the market oversight and management departments.

(25) Cotton businesses that fabricated, altered, or falsely used cotton quality credentials, markers, notary inspection certificates, or notary inspection markers, causing serious consequences and vile social impact, and were given administrative punishment by the market oversight and management departments.

(26) Food business were given administrative punishments other than warnings 3 times in one year, or violated laws and regulations on food safety causing serious harm to consumers' health and vile social impact, and being given administrative punishment by the market oversight and management departments.

(27) Within one year, 5 stores of chain food and beverage enterprises were given administrative punishment by the market oversight and management departments.

(28) Produced food using non-food raw materials, recycled foods, or raw materials exceeding their expiration dates; or adding chemicals other than food additives or other substances possibly hazardous to human health to food, and were given an administrative punishment by the market oversight and management departments.

(29) Used meat that was not inspected in accordance with provisions or did not pass inspections, or meat products from poultry, livestock, game or aquatic animals; and were given administrative punishments by the market oversight and management departments.

(30) The persons who are directly in charge and relevant staff of school cafeterias that violated food safety laws and regulations, creating a major food safety incident.

(31) Produced or sold infant formula, infant supplements, special medical supplements, and other high risk foods, and were given administrative punishments by market oversight and management departments.

(32) Sold, rented, delivered or used special equipment that the state has declared discarded, or produced special equipment without obtaining a permit, without going through inspections, or after failing inspections; causing, serious consequences and vile social impact, and being given administrative punishment by the market oversight and management departments.

(33) Produced, repaired, or sold meters not meeting standards, causing, serious consequences and vile social impact, and being given administrative punishment by the market oversight and management departments.

(34) Inspection certification testing bodies and their staff conducted inspections, testing, or certification without permits or exceeding the scope of their permits; or altered, sold, rented, or loaned permit certificates; or issued false inspection and testing reports or certification outcomes; causing serious consequences with vile social impact, and were given administrative punishment by the market oversight and management departments.

(35) Failed to authenticate products listed for mandatory authentication, or shipped, sold, imported, or otherwise used them in business activities; or obtained authentication of products listed for mandatory authentication, or completed self-declarations of compliance through fraud or bribery; causing serious consequences with vile social impact, and were given administrative punishment by market oversight and management departments.

(36) Other violations of market oversight and management laws and regulations provided for by the State Administration for Market Regulation where the circumstances are serious.

Article 7: Where the responsible departments put entities on the List of the Untrustworthy with Serious Violations, they shall make a listing decision, record relevant information under the entities' names, and announce this on the national enterprise credit information announcement system. The listing decision shall include titles/names, unified social credit codes/identification numbers, the date of listing, the reason for listing, time periods and pathways for rights and remedies, and the decision-making organ.

Article 8: Where entities have situations provided for in article 6(1) of these Measures, 60 days before they have been been listed in the directory of irregular businesses for 3 years, the provincial-level departments for market oversight and management, and for intellectual property rights management, shall make a public announcement on the national enterprise credit information announcement system reminding them to perform their obligations; where at the completion of 3 years, they have still not performed the relevant obligations,

Where entities have other circumstances provided for in article 6, the responsible departments shall enter them in the List of the Untrustworthy with Serious Violations within 10 days of verification.

Chapter III: Removal Procedures

Article 9: Where entities listed in the List of the Untrustworthy with Serious Violations for failure to perform relevant obligations after 3 years of being on the irregular business directory, do not have another situation provided for in article 6 within 5 years of their being listed, they may apply in writing to the relevant department with jurisdiction for removal at the completion of this period. The responsible departments shall conduct verification inspections, and make a decision on removal within 5 working days.

Where entities listed in the List of the Untrustworthy with Serious Violations for other situations provided for in Article 6, do not have another of the situations within 3 years of their being listed, they may apply in writing to the relevant department with jurisdiction for removal at the completion of this period. The responsible departments shall conduct verification inspections, and make a decision on removal within 5 working days.

Article 10: Where the responsible departments remove entities from the List of the Untrustworthy with Serious Violations, they shall make a removal decision and announce it through the national enterprise credit information announcement system. The removal decision shall include titles/names, unified social credit codes/identification numbers, the date of removal, the reason for removal, and the decision-making organ.

Chapter IV: Procedures for Objections, Revocation, Reconsideration, and Litigation

Article 11: Where entities have objections to entry on the List of the Untrustworthy with Serious Violations, they may submit a written application to the responsible department that made the decision within 30 days of the announcement, and submit relevant proofs; and the responsible department is to make a decision on whether to accept it within 5 working days. Where it is accepted, it shall be verified within 20 working days, and the applicant is to be informed of the verification results in writing; where it is not accepted, the applicant shall be informed in writing of the reasons.

Where through verification the responsible departments find that the entry of an entity into the List of the Untrustworthy with Serious Violations was in error, they shall correct it within 5 working days of review.

Article 12: Where the circumstances on which entry into the List of the Untrustworthy with Serious Violations change and are no longer meet entry requirements, entities may apply for removal to responsible departments with jurisdiction, and the responsible departments shall make a decision on revocation within 5 working days of verification, and remove the entity from the List.

Article 13: Entities may apply for administrative reconsideration or initiate administrative litigation regarding decisions to enter them in the List of the Untrustworthy with Serious Violations.

Chapter V: Punishments for Untrustworthiness

Article 14: The responsible departments shall carry out the following restrictive measures against those entered on the List of the Untrustworthy with Serious Violations:

(1) Make it an important factor for consideration in reviews for registration and administrative permits, and when verifying qualifications, credentials, or filings; and lawfully carry out corresponding restrictions or entry prohibitions.

(2) The legal representatives and responsible parties for enterprises entered on the List of the Untrustworthy with Serious Violations because they were listed in the irregular business directory for 3 years, must not serve as the legal representative or responsible party of other enterprises for 3 years.

(3) list as the highest level of credit risk or as a target for key scrutiny, increasing the frequency of oversight inspections.

(4) When administrative punishments involve discretion, increase the force of punishment.

(5) Do not give honorific titles; revoke honorific titles already given.

(6) Do not allow enjoyment of benefit policies.

(7) must not act as a national standard drafting unit.

(8) Where the objects of authentication are entered into the List of the Untrustworthy with Serious Violations, order that the authentication body must not issue an authentication certificate to them. Where the objects of authentication are enterprises that are required to obtain product authentication certificates, they are prohibited from using self-declarations to complete mandatory product authentication eligibility appraisals.

(9) Where online transaction businesses are entered into the List of the Untrustworthy with Serious Violations, order the online trading platform operator to issue a public warning notice to online consumers on the online trading platform, and that they must not provide platform services to them.

(10) Where the enterprises' legal representatives or directly responsible personnel are practicing pharmacists, the licensing departments are to revoke their "Pharmacist Practitioner Registration Certificate" and record it as negative information in the national pharmacist practitioner registry information management system.

The responsible departments shall embed information from the List of the Untrustworthy with Serious Violations in every industry system, establishing and completing mechanisms for inquiries and feedback into information from the List of the Untrustworthy with Serious Violations.

Article 15: The responsible departments shall share information from the List of the Untrustworthy with Serious Violations between government departments, and carry out joint disciplinary action.

Article 16: The responsible departments may send information from the List of the Untrustworthy with Serious Violations to industry associations, professional service bodies, platform enterprises, and so forth, and carry out public joint governance.

Article 17: Where the legal representatives or responsible parties for enterprises that have been entered into the List of the Untrustworthy with Serious Violations for failing to perform obligations after having been included in the irregular businesses directory for three years already serve as the legal representative or responsible party for other enterprises, the relevant enterprises shall complete modification of their registered legal representative or responsible party. Where relevant enterprises do not complete modification of their registered legal representatives or responsible parties, market oversight and management shall investigate and handle it in accordance with law.

Chapter VI: Credit Restoration

Article 18: Entities entered onto the List of the Untrustworthy with Serious Violations that meet the following criteria may apply for removal from the List:

(1) Where entities listed in the List of the Untrustworthy with Serious Violations for the circumstances provided for in article 6(1), performed information announcement obligations before having been in the directory of irregular businesses for 3 years, but failed to apply for removal from the directory and were thus listed, they may apply for removal to the market oversight and management departments or intellectual property rights management departments.

(2) Where entities listed in the List of the Untrustworthy with Serious Violations for the circumstances provided for in article 6(1), proactively performed announcement obligations after having been listed, and have been listed for a full year, they may apply for removal to the market oversight and management departments or intellectual property rights management departments.

(3) Entities listed in the List of the Untrustworthy with Serious Violations for other circumstances provided for in article 6, that can actively correct their unlawful conduct and eliminate negative social impact. After being listed for a full year they may apply to the responsible departments for removal.

Article 19: The responsible departments shall carry out credit restoration in accordance with the procedures below:

(1) Application. Untrustworthy entities may apply to responsible departments with jurisdiction for credit restoration, explain the facts and basis of the application for credit restoration, and attach relevant supporting materials.

(2) Acceptance. After responsible departments receive applications for credit restoration, they shall conduct an initial review of the application materials, and where they meet requirements, accept it and issue an acceptance letter to the applicant; and where they do not meet the requirements, a written notice of non-acceptance is to issued to the applicant and the reasons explained.

(3) Administrative talking-to; Responsible departments shall arrange for the legal representatives and responsible parties of untrustworthy entities applying for credit restoration to participate in administrative talking to, and making of credit pledges, and so forth.

(4) Investigation and verification. Responsible departments shall conduct investigation and verification of applications for credit restoration.

(5) Handling of objections. Responsible departments shall decide whether to permit credit restoration within 5 days after investigation and verification. Where credit restoration is approved, the responsible departments are to announce the credit restoration decision through the national enterprise credit information announcement system, with a 15 day announcement period.

Where there are objections during the announcement period, a verification of the matters objected to should be promptly conducted. Where the objection is not sustained upon verification, or there are no objections during the announcement period, the permission or decision of a provincial-level or higher market oversight and management department, drug oversight and management, or intellectual property rights management departments is required to make a decision approving credit restoration. Where the objection is sustained, do not allow credit restoration and inform the application.

(6) Data Processing. The responsible departments shall stop announcement of the record of untrustworthiness within 5 working days of making a decision to approve credit restoration.

Article 20: Responsible departments may employ methods such as document inspection, on site inspections, and online monitoring, to review and verify facts and supporting documents related to untrustworthy entities' proactive correction of serious untrustworthy violations, performance of relevant obligations, and elimination of negative impact.

Article 21: In any of the following circumstances, the responsible departments carrying out credit restoration shall revoke the decision to allow restoration, and restore the entities to their state before restoration:

(1) Incorrectly implemented credit restoration for entities ineligible for credit restoration.

(2) Entities concealed the true situation or were false and misleading in the course of credit restoration.

(3) The credit restoration decision impacts the societal public interest or the material interests of others, and upon review, stakeholders applications are confirmed.

Article 22: Except as provided otherwise by law, in any of the following situations, credit restoration is not to be granted:

(1) caused serious consequences endangering national security, public safety, people's health and security in property.

(2) After untrustworthy entities obtained credit restoration, they did not perform on credit pledges, and further serious unlawful and untrustworthy conduct occurred, and they were entered onto the List of the Untrustworthy with Serious Violations.

(3) Untrustworthy entities that have already entered liquidation and bankruptcy proceedings (except for enterprises conducting bankruptcy groups based on court judgments)

Chapter VII: Pursuit of accountability.

Article 23: Where the responsible departments do not perform duties in accordance with the relevant provisions of these Measures, the responsible department at the level above is to order corrections; where the circumstances are serious, the responsible management and other directly responsible personnel are to be punished in accordance with law.

Chapter VIII: Supplemental Provisions

Article 24: The State Administration for Market Regulation is to uniformly draft sample documents related to management of the List of the Untrustworthy with Serious Violations

Article 25: The State Administration for Market Regulation is responsible for interpretation of these Measures.

Article 26: These Measures shall take effect on xx/xx/2019.