Provisions on Administrative Law Enforcement Procedures for Internet Information Content Management

Source:http://www.cac.gov.cn/2017-05/02/m_1120902931.htm?from=singlemessage&isappinstalled=0

中国网信网2017-05-02 13:58:19

State Internet Information Office Order 第2号

Chapter I: General Provisions

Chapter II: Jurisdiction

Chapter III: Case Filing

Chapter IV: Investigation and Evidence Gathering

Chapter V: Hearings, talkings-to

Chapter VI: Punishment Decisions and Delivery

Chapter VII: Enforcement and Conclusion

Chapter VIII: Supplemental Provisions

Director Xu Lin

2017/5/2

Provisions on Administrative Law Enforcement Procedures for Internet Information Content Management

Chapter I: General Provisions

Article 1: These Provisions are drafted on the basis of the "People's Republic of China administrative punishment Law" , "People's Republic of China Cybersecurity Law" , and the State Council Notice on Authorizing the State Internet Information Office to take Responsibility for Efforts to Manage Internet Content", so as to regulate and safeguard departments for internet information content management's lawful performance of their duties; to protect the lawful rights and interests of citizens, legal persons, and other organizations; and to preserve national security and the public interest.

Article 2: These regulations apply to the lawful carrying out of administrative law enforcement by departments for internet information content management, and to the administrative punishment of violations of internet information content management laws, regulations, and rules.

"Departments for internet information content management" as used in these regulations refers to the State Internet Information Office and local internet information offices.

Article 3: Departments for internet information content management carrying out administrative law enforcement shall comply with the principles of openness, fairness, and justice; shall make it so that the facts are clear, the evidence is certain, the procedures are legal, and the laws, regulations and rules are correctly applied; and law enforcement documents are standardized.

Article 4: Higher level departments for internet information content management conduct supervision and inspections of lower level departments for internet information content management's administrative law enforcement implementation.

Higher level departments for internet information content management conduct supervision and inspections of lower level departments for internet information content management's administrative law enforcement implementation.

Article 5: Departments for internet information content management shall strengthen the establishment of the law enforcement teams, and establish and complete systems training, testing, evaluation management for a law enforcement personnel and systems for post credentialing.

Law enforcement personnel shall participate in training on legal and operations knowledge that are organized by the departments for internet information content management, and shall pass administrative law enforcement tests or evaluations to obtain law enforcement credentials before they may engage in law enforcement work.

The national department for internet information content management are to uniformly make, approve and issue the law enforcement credentials, or authorize provincial, autonomous region, or directly governed municipality departments for internet information content management to approve and issue them.

Chapter II: Jurisdiction

Article 6: Administrative punishments are in the jurisdiction of the departments for internet information content management for the site where the offense occurs.

The site at which the violation occurs includes the location where the website carrying out the violations is filed, the place of registration for industry and commerce (where the industry and commerce registration site is not the same as the principle place of business, the principle place of business should be used); the residences of those who established, manage, or use the website; the site of network entry, or the location of computers and other terminal equipment.

Article 7: Municipal (Region, Prefecture) level departments for internet information content management have jurisdiction over that administrative region's cases of administrative punishment for internet information content, in accordance with their authority.

Provincial, autonomous region, or directly governed municipality level departments for internet information content management have jurisdiction over that administrative region's major and complicated cases of administrative punishment for internet information content, in accordance with their authority.

The national department for internet information content management has jurisdiction over administrative punishment cases it implements, as well as major or complicated cases of administrative punishments for internet information throughout the entire country.

Provincial, autonomous region, or directly governed municipality departments for internet information content management may draft specific provisions on jurisdiction in that administrative region based on laws, regulations, and rules combined with the actual conditions or that region.

Article 8: Where two or more departments for internet information content management have jurisdiction over the same violation by a party, the first departments for internet information content management to file the case has jurisdiction. When necessary, there may be transfer of jurisdiction to the department for internet information content management at the site where the offense primarily occurred.

Where two or more departments for internet information content management disagree over jurisdiction, they shall resolve it through discussion, where it cannot be so resolved, it is to be reported to the common department for internet information content management above, for designation of jurisdiction.

Article 9: When higher level departments for internet information content management find it necessary, they may directly handle cases in the jurisdiction of lower level departments for internet information content management, and may also transfer cases in their own jurisdiction to be handled by lower departments for internet information content management.

Where, for special reasons, lower departments for internet information content management cannot exercise jurisdiction over cases in their jurisdiction, they may report it to the higher departments for internet information content management to take or designate jurisdiction.

Article 10: Where departments for internet information content management discover that a case is not in their jurisdiction, they shall promptly transfer it to a department for internet information content management with jurisdiction.

The departments for internet information content management receiving it shall promptly inform the transfer departments for internet information content management of the outcome of the case investigation and handling; where they feel the transfer was improper, they shall report to the common department for internet information content management above to designate jurisdiction and must not transfer it again.

Article 11: After the higher departments for internet information content management receive a request for instruction on a contested jurisdiction or report for designation of jurisdiction, they shall make a decision on designating jurisdiction within 10 days, and inform the lower departments for internet information content management in writing.

Article 12: Where departments for internet information content management discover that a case is in the jurisdiction of another administrative organ, they shall promptly transfer it to the relevant organ.

Where departments for internet information content management discover unlawful conduct that is suspected of being a crime, it shall be promptly sent it to the justice organs. Where the judicial organs decide to open a case, the departments for internet information content management shall submit all materials related to the case to the judicial organ within 3 days of receiving the written case-filing notice, and complete the transfer formalities.

Article 13: Where departments for internet information content management shall submit a disposition recommendation where they should lawfully revoke internet news information service permits or cancel Internet News Information Service Licenses, and send the evidence and relevant materials they have obtained to the department for internet information content management that originally issued the license, and that departments for internet information content management is to lawfully make a decision a decision on whether to revoke or cancel licenses.

Chapter III: Case Filing

Article 14: Departments for internet information content management shall promptly investigate and handle the following matters, and complete the "Case Origin Form" (Format as shown in attachment 1):

(1) case leads discovered during oversight inspections.

(2) Where natural persons, legal persons, or other organizations complain, make a collateral appeal or report;

(3) those transferred by higher level organs or reported for inspection and handling by lower level organs;

(4) Those transferred by relevant departments or discovered through other means or channels.

Article 15: The following requirements shall be met when filing an administrative punishment case:

(1) There is suspicion that a violation has occurred;

(2) administrative punishment shall be given in accordance with law;

(3) it is with the scope of administrative punishments for internet information content supervision and management;

(4) it is within the jurisdiction of that departments for internet information content management.

Where it is eligible for filing a case, a "Case Filing Review and Approval Form" (for format see attachment 2) shall be completed and attached to the relevant materials, to be reported within 7 working days to the responsible person for the department for internet information content management to review and file the case, and to designate two or more law enforcement personnel to undertake the case. In special situations, the time for case filing may be extended to 15 working days.

Article 16: Where a case is not filed regarding a complaint, collateral appeal, or report; named complainants, collateral appeal complainants, or informants, shall be informed of the result after it is approved by the responsible party at the department for internet information content management, and a written record of the circumstances relevant to the decision not to file the case is to be made and stored.

Where it is decided not to file a case regarding a case transferred by other departments, the transferring department shall be informed in writing.

Where a case is not filed or case filing is withdrawn, the persons undertaking it shall draft a "Non-approval of Case Filing" (for format see attachment 3) or a "Withdrawal of Case Filing" (for format see attachment 4), and send it for approvals by the responsible party for the department for internet information content management.

Article 17: In any of the following circumstances case-handling personnel shall voluntarily recuse themselves; and parties have the right to apply for the recusal of case-handling personnel:

(1) Is a party to the case or a party's close relative.

(2) Has a direct interest in the case;

(3) Has other connections with case parties that might influence the fair disposition of the case.

The departments for internet information content management are responsible for deciding on the recusal of case-handling personnel. Any party not accepting the decision may apply once for a reconsideration.

The personnel subject to applications for recusal are not to stop investigating and handling the case before a recusal decision is made.

Chapter IV: Investigation and Evidence Gathering

Article 18: When departments for internet information content management conduct case investigations and collect evidence, there must be at least two law enforcement personnel and they shall present their law enforcement credentials. When necessary, specialized personnel may also be hired to assist.

The first time evidence is gathered or collected from a case party, they shall be informed of their right to apply for the recusal of case-handling personnel.

When evidence is gathered or obtained from relevant units or individuals, they shall be informed of the obligation to truthfully provide evidence. Subjects of investigations or relevant personnel shall truthfully answer questions and assist and cooperate in the investigation, promptly provide relevant materials that were stored in accordance with law such as information information released by internet information service providers, information published by users, and log information; and must not obstruct or interfere with the case investigation.

State secrets, commercial secrets, individual private information, and personal information learned of by law enforcement personnel during the course of handling cases shall be kept confidential in accordance with law.

Article 19: Where departments for internet information content management require the assistance of another region's departments for internet information content management in investigation or evidence collection, they shall issue a letter commissioning an investigation. The commissioned departments for internet information content management shall actively provide assistance, and generally complete the relevant work within 15 working days after receiving the letter commissioning the investigation; where it is necessary to extend the period for completion or there is no way to to assist, they shall promptly inform the commissioning departments for internet information content management by letter.

Article 20: Case handling personnel shall lawfully gather evidence related to the case, including electronic data, A/V materials, documentary evidence, physical evidence, witness testimony, party statements, evaluation opinions, inspection reports, inquest records, crime scene records, and records of questioning.

Electronic data refers to data formed during the course of the crime, which is stored, processed, or transmitted in digital form, and can prove case facts, including but not limited to webpages, blogs, microblogs, instant messaging tools, forums, post sites, network drives, emails, backhaul networks, and other means of storing electronic information or documents. Electronic data is primarily stored in computer equipment, mobile communications equipment, internet servers, mobile storage media, cloud storage systems, storage media.

Audiovisual information includes both recorded and visual information.

The provisions on electronic data apply to audio or visual materials stored in electronic media.

Article 21: Evidence lawfully collected by departments for internet information content management before the case is filed or during its review, may be used as a basis for determining the facts. Reliable electronic data obtained through technological measures such as network patrols, may be used as a bass for determining facts.

The gathering and collection of electronic data shall meet the requirements of laws, regulations, rules, national standards, industry standards, and technical regulations; and shall ensure the integrity, legality, accuracy, and relevance of the electronic data gathered or obtained. Otherwise, it must not be used as a basis for determining facts.

Article 22: Before a case is filed, the departments for internet information content management may employ measures such as questioning, queries, inspections, evaluations, and collection of evidence, but must not limit the target of the preliminary investigation's rights in person and property.

After departments for internet information content management file a case, they may employ measures such as prior registration and storage of items, equipment, or venues.

Article 23: In the course of handling cases, the departments for internet information content management shall promptly question witnesses.

Where law enforcement personnel conduct questioning, they shall draft a "record of questioning" (for format see attachment 5), indicating the time, place, matter, matter, process, and other such content. The record of questioning shall be given to the subject of the questioning or relevant personnel to check over and confirm.

Article 24: Departments for internet information content management shall conduct inquests or inspections of premises, items, and networks involved in network information content violations; and promptly collect and fix documentary evidence, physical evidence, audiovisual materials, and electronic data.

Article 25: Departments for internet information content management may commission judicial evaluation establishments to issue evaluation opinions on specialized issues in the case; where they are not within the scope of judicial evaluations, they may commission institutions with the capacity and conditions to issue a testing report or inspection report.

Article 26: Departments for internet information content management may obtain evidence that can prove case facts from relevant units and individuals, and may take photographs, or make recordings, copies and reproductions of the materials as necessary.

The collection of documentary evidence and physical evidence shall be of original documents or items. Where it is difficult to collect the original documents or items, the relevant units or individuals that provided the evidence may sign or affix their seal to a reproduction and indicate 'this item was provided by XXX, and has been found to be without error upon comparison with the original document or item" and also note the date it was certified, its disposition, and sign this or affix a seal.

Audiovisual materials or electronic data that are collected shall be the original storage medium or a backup medium. Where it is difficult to collect the original storage medium or a backup medium, a reproduction may be gathered, noting the means of reproduction, the date of reproduction, and the persons who did the reproduction. Collection of voice materials shall have an attached transcript of the voice content.

Article 27: In situations where evidence could be destroyed or where it would be difficult to obtain later, then upon the approval of the responsible party of departments for internet information content management, law enforcement personnel may lawfully register and store in advance items suspected of being involved in the violations such as computers, servers, hard drives, and mobile storage equipment, memory cards; and a "List of Registered and Stored Items" (for format see Attachment 6) is to be drafted and a "Written Notice of Registration and Storage of Items" (for format see Attachment 7) is to be issued to the parties. During the period of advance registration and storage, parties and other relevant personnel must not damage, destroy, or illegally transfer the evidence.

When departments for internet information content management carry out advance registration and storage, they shall inform the parties or persons in possession to appear, and indicate the relevant circumstances of implementation in the on-scene record.

Article 28: Within 7 days, departments for internet information content management shall make the following disposition decisions regarding advance registered and stored evidence.

(1) where it is necessary to employ measures to preserve the evidence, it is to be returned after preservation measures such as recording, reproduction, photographing, or video have been employed;

(2) where it is necessary to inspect, test, or evaluate; it is to be sent to an institution with relevant credentials for inspection, testing or evaluation.

(3) Where the fact of a violation is established and it shall be confiscated in accordance with law, an administrative punishment is to be made in accordance with law and the violative items confiscated;

(4) Where the fact of a violation is not established, or the fact of a violation is established but there shall not be confiscation in accordance with law, the advance registration and storage is released.

Where a decision is not issued by the time set, advance registration and storage shall be be released.

Article 29: Departments for internet information content management may employ measures such as on-site collection of evidence, remote collection of evidence, or ordering relevant units and individuals to fix and submit [evidence] in order to gather or preserve electronic data.

After on-site or remote evidence collection is completed, a "Electronic Collection of Evidence Work Record" (for format see Attachment 8) shall be drafted.

Article 30: During the course of investigation and collection of evidence, law enforcement personnel shall request that parties sign, leave fingerprints, affix a seal or use other methods to verify records and other materials. Where parties refuse to appear; refuse to sign, leave fingerprints, affix seals, or use other methods of verification; or where there is no way to find parties; two or more law enforcement personnel are to note the reasons on the records or other materials and invite relevant personnel to sign or affix their seal as authenticating witnesses, and may also use methods such as audio or visual recordings to make a record.

Article 31: After the case investigation is completed, the persons undertaking the case are to write a "Case Disposition Opinion Report" (for format see Attachment 9)

Where it is found that the fact of a violation is established and that administrative punishment shall be given, write a "Case Disposition Opinion Report" and a draft administrative punishment recommendation.

In any of the following circumstances, write a "Case Disposition Opinion Report", explaining the reasoning for the disposition to be made, and report it for approval to the responsible person for the department for internet information content management, and then make one of the following dispositions based on different circumstances.:

(1) Where the fact of a violation is found to not be established, the case shall be withdrawn;

(2) Where the violation is slight, and did not cause harmful consequences, an administrative punishment is not given;

(3) where the case is not within the jurisdiction of that organ, it shall be transferred to another administrative organ with jurisdiction.

(4) Where the violation is suspected of constituting a crime, it shall be transferred to the judicial organs.

Article 32: When departments for internet information content management conduct case investigations, where there is already evidence proving facts that constitute a violation, they shall issue a written notice ordering corrections, and order the parties to make corrections or to correct violative conduct within a set period of time.

Chapter V: Hearings, talkings-to

Article 33: Before departments for internet information content management make administrative punishments such as revocation of Internet News Information Service Licenses or larger fines, they shall inform the parties that they have the right to request a hearing. Where parties request a hearing, they shall submit it within 3 days of being informed, and the departments for internet information content management shall organize a hearing. Where parties do not request a hearing in the set time, it is viewed as a waiver of the rights.

Article 34: 7 days before the hearing, the departments for internet information content management shall serve the parties with a "Notification of Hearing to be Held" (for format see Attachment 10) , informing them of the time and place for the hearing.

a "Hearing Record" (for format see Attachment 11) shall be made for hearings, to be signed by the parties, or their seals attached, after they review it and verify their are no errors.

Article 35: Before departments for internet information content management make an administrative punishment decision for violations by internet information service providers, they may follow relevant provisions to give them a talking-to, and make a "record of law enforcement talking-to" (for format see attachment 12) after finishing the talk.

Chapter VI: Punishment Decisions and Delivery

Article 36: Before departments for internet information content management made an administrative punishment decision, they shall complete a "Written Notification of Administrative Punishment Opinion" (for format see attachment 13), informing the parties of the facts of the violation, reasons and basis for the administrative punishment, as well as the rights lawfully enjoyed by the parties to make a statement or defense.

Departments for internet information content management shall fully hear the statements and defenses of the parties. Where facts, reasoning, or evidence submitted by the parties is sustained upon review, it shall be adopted. Where parties have not submitted a statement or defense with 3 working days of receiving the written notification, it will be viewed as waiving these rights.

Departments for internet information content management must not increase punishments due to the statements and defenses of the parties.

Article 37: Administrative punishment punishment decisions that are to be issued shall be reported for review to the responsible persons of the departments for internet information content management. The responsible person for the department for internet information content management is to make the following decisions based on differing situations:

(1) Where there is truly unlawful conduct for which administrative punishments shall be imposed in accordance with law, an administrative punishment decision is to be made in light of the seriousness and specific circumstances;

(2) Where the violation is more minor, and the law allows that an administrative punishment might not be imposed; do not impose an administrative punishment.

(3) Where a violation cannot be established, administrative punishment is not given;

(4) Where the violation constitutes a crime, transfer it to the judicial organs.

Article 38: The responsible persons for departments for internet information content management shall collectively discuss and decide on more serious administrative punishments where the circumstances are complicated or the violation is major. There shall be a written record of decision-making through group discussion.

The departments for internet information content management are to determine the standards for complicated and major violations on the basis of actual conditions.

Article 39: An "Administrative Punishment Decision Certificate" (for format see attachment 14) shall be completed administrative punishment decisions made by departments for internet information content management issuing administrative punishment decisions.

The "Administrative Punishment Decision Certificate" shall indicate the following matters:

(1) the parties' names or entity name, address, and other basic circumstances;

(2) Facts and evidence on the violation of laws, regulation, or rules.

(3) The type of administrative punishment and its basis;

(4) The methods and time for enforcing the administrative punishment;

(5) The paths and time limits for applying for administrative reconsideration or filing an administrative lawsuit if dissatisfied with an administrative punishment decision;

(6) the name of the department for internet information content management making the administrative punishment decision, and the date the decision was made.

Where administrative punishment decisions involve the confiscation of related items, the confiscation proofs shall also be attached.

The "Administrative Punishment Decision Certificate" shall have affixed the seal of the department for internet information content management making the administrative punishment decision.

Article 40: After the "Administrative Punishment Decision Certificate" has been announced, it shall be given to the parties present; where parties are not present, it shall be served on the parties within 7 days in accordance with the relevant provisions of the Civil Procedure Law.

Chapter VII: Enforcement and Conclusion

Article 41: After a "Administrative Punishment Decision Certificate" is served, the parties shall perform on it during the period of the punishment decision.

Where parties truly have financial hardship, they may submit an application for an extension or for installment payments of fines, and submit written materials. Upon review by the those undertaking the case, the period and amounts for the extension or installments is determined, and implemented after being reported for approval to the responsible person for the department for internet information content management.

Article 42: Where internet information service providers violate relevant laws, regulations or rules, and it is necessary for competent departments for telecommunications to close down a website, revoke internet information services value-added telecommunications business licenses, or cancel filings, transfer it to the competent departments for telecommunications for disposition.

Article 43: Where parties enjoy the right to make a statement or defense regarding an administrative punishment given by departments for internet information content management, and are dissatisfied with the administrative punishment decision, they have the right to apply for an administrative reconsideration or to raise an administrative lawsuit in accordance with law.

Where parties are dissatisfied with an administrative punishment decision, and apply for administrative reconsideration or file an administrative lawsuit, enforcement of the administrative punishment does not stop, except as otherwise provided by law.

Article 44: Where parties do not apply for an administrative reconsideration or file an administrative lawsuit in the legally prescribed time period, and also do not perform on the administrative punishment decision, the department for internet information content management that made the administrative punishment may apply to the people's court to compel enforcement.

Departments for internet information content management applying to the people's courts for compulsory enforcement shall complete an "Exhortation to Perform on an Administrative Punishment Decision" (For format see attachment 15), urging the parties in writing to perform obligations, and informing them of the time and method for performing the obligations, their rights to make statements or defenses in accordance with law, and where a additional fines are involved, the amount and method of payment is to be indicated.

The total amount of additional fines must not exceed the amount of the original fine.

Where parties make a statement or defense, the departments for internet information content management shall make a record and review of the facts, grounds, and evidence presented by the parties, and draft a Statement and defense Record, and written Statement or Defense Review Comments. Where the facts, grounds or evidence presented by the parties are sustained, the departments for internet information content management shall adopt them.

Where 10 days after the "Exhortation to Perform on and Administrative Punishment Decision" was served, the parties still do not perform on the administrative punishment decision, the departments for internet information content management may apply to the people's courts to compel enforcement, and complete a "Compulsory Enforcement of Administrative Punishment" (For format see Attachment 16).

Article 45: After performance or enforcement of an administrative punishment decision is complete, the case handling personnel shall complete a "Administrative Punishment Case Conclusion Report" (for format see attachment 17), and organize and bind the materials related to the case, to be archived and stored.

Chapter VIII: Supplemental Provisions

Article 46: Time limits in these Provisions that are calculated in times or days, do not include the time and date on which they start. Where the final day on which a time limit is completed is a holiday, the period is to be completed on the day following the holiday. Unless otherwise provided by laws and regulations.

Article 47: As used in these Provisions, "more than" [or higher], "less than" [up to], and "within" [between] include the number itself.

Article 48: The national department for internet information content management is responsible for drafting document templates for use in administrative law enforcement. Each provincial, autonomous region, or directly governed municipality department for internet information content management may refer to the document templates to draft document templates for use in their administrative region, and issue these themselves.

Article 49: These Provisions take effect on June 1st, 2017.

Attachments:

1. Case Origin Registration Form

2. Case Filing Review and Approval

3. Non-approval of Case Filing

4. Withdrawal of Case Filing Approval

5. Record of Questioning

6. List of Registered and Stored Items

7. Written Notice of Registration and Storage of Items

8. Electronic Collection of Evidence Work Record

9. Case Disposition Opinion Report

10.Notification of Hearing to be Held