Laws of the People's Republic of China

the Ministry of Commerce

Order of the Ministry of Commerce of the People's Republic of China

No. 1

The Measures for the Implementation of Administrative Punishments of the Ministry of Commerce (for Trial Implementation), which were adopted at the 18th executive meeting of the Ministry of Commerce after deliberation on December 29, 2004, are hereby promulgated and shall go into effect as of March 1, 2005.

Minister of the Ministry of Commerce Bo Xilai

January 7, 2005

Measures for the Implementation of Administrative Punishments of the Ministry of Commerce (for Trial Implementation)

Article 1

For the purpose of regulating the imposition of administrative punishments by the Ministry of Commerce, ensuring the legality and effectiveness of administrative punishments, protecting the legitimate rights and interests of citizens, legal persons and other organizations and safeguarding the public interest and economic order, the present Measures are formulated in accordance with the Law of People's Republic of China on Administrative Penalty.

Article 2

The present Measures shall apply to the imposition of administrative punishments by the Ministry of Commerce.

Article 3

The "administrative punishments" as mentioned in the present Measures refers to the disciplinary punishments imposed by the Ministry of Commerce in accordance with the provisions of laws, administrative regulations and rules, on any citizen, legal person, or any other organization in violation of the administration order.

Article 4

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

Article 5

Any administrative punishment imposed by the Ministry of Commerce shall be based on laws, administrative regulations and rules and shall be implemented in compliance with the legal procedure.

Article 6

Administrative punishments shall be imposed within the prescribed limits of functions and powers of the Ministry of Commerce. No affiliated organization of the Ministry of Commerce (including instrumentalities, all accredited representatives' offices, public institutions directly under administration, etc.) may impose any administrative punishment in its own name.

The Ministry of Commerce may not entrust any organization as prescribed in Article 19 of the Law on Administrative Penalty to impose any administrative punishment if there is no such provision in any law, administrative regulation or rule.

Article 7

The Ministry of Commerce shall adopt a system that can integrate case investigation with trial for such administrative punishments as warnings and fines of no more than 30,000 Yuan RMB (hereinafter referred to as minor administrative punishments).

The Ministry of Commerce shall adopt a system that can separate case investigation from trial for any administrative punishment except those as mentioned in the first paragraph (hereinafter referred to as serious administrative punishments).

Article 8

For any case involves administrative punishment to be imposed by the Ministry of Commerce, the investigation organ shall be the working department involved in the case. The said working department, if necessary, may investigate the case in collaboration with other departments concerned.

Article 9

Where any department of the Ministry of Commerce finds any act of any citizen, legal person or any other organization in violation with the administration order, the investigation shall be started in a timely manner.

Article 10

Where a minor administrative punishment is to be imposed after the conclusion of the investigation, the investigation organ shall, in accordance with the provisions of Article 31 of the Law on Administrative Penalty, inform in writing the parties concerned of the fact, reason and basis of the administrative punishment and shall notify them of the right to state their cases and the right to defend themselves.

Where any party concerned requests to make statements or to defend himself, the request shall be set forth within 3 days from receipt of the written notice. The investigation organ shall fully attend to the opinion of the party concerned and re-examine the relevant matters concerned.

Article 11

If the investigation organ has re-examined the statements and defense of the parties concerned, and comes to the conclusion that a minor administrative punishment shall be imposed, it shall make an Administrative Punishment Decision and shall, after soliciting the opinions of the institution of legal affairs of the Ministry of Commerce, report it to the relevant leaders of the Ministry.

Article 12

In the process of soliciting opinions as prescribed in Article 11 , if the institution of legal affairs deems that a serious administrative punishment shall be imposed, the investigation organ shall handle the matter according to provisions of Article 13 of the present Measures.

Article 13

Where a serious administrative punishment is to be imposed after conclusion of the investigation, the investigation organ shall write a Termination Report for Case Investigation, which shall be transferred to the Administrative Punishment Committee of the Ministry of Commerce along with all the materials of the case.

The real situation, investigation process, relevant evidences of the case and the laws and regulations violated shall be elaborated in the Termination Report for Case Investigation, and a preliminary opinion of the treatment of the case and the basis thereof shall also be included.

Article 14

The Administrative Punishment Committee established by the Ministry of Commerce functions as the trial authority for cases that involves serious administrative punishments to be imposed by the Ministry of Commerce. The Administrative Punishment Committee shall try the cases by way of holding hearings or trial meetings, etc.

The institution of legal affairs of the Ministry of Commerce is the working body of the Administrative Punishment Committee, which shall take charge of organizing and arranging trial meetings and hearings of the Administrative Punishment Committee, preparing relevant legal documents and undertaking the routine work of the Administrative Punishment Committee.

Article 15

After the Termination Report for Case Investigation and the case materials are transferred to the Administrative Punishment Committee, the institution of legal affairs shall conduct a preliminary examination.

Article 16

Where the institution of legal affairs deems that some specific facts are ambiguous in the case, it may demand an explanation from the investigation organ.

The institution of legal affairs, when necessary, may directly investigate into relevant entities and individuals to find out the truth.

Article 17

Where the institution of legal affairs, upon examination, deems that the facts in the case are ambiguous or the evidences are not sufficient, it may remand the case to the investigation organ for supplementary investigation.

Article 18

Where the institution of legal affairs, upon examination, deems that the major fact therein is clear and the evidences are sufficient, it shall put forward a preliminary opinion for treatment according to law. If any administrative punishment is to be imposed, it shall, in accordance with the provisions of Article 31 of the Law on Administrative Penalty, inform in writing the parties concerned of the fact, reason and basis of the administrative punishment to be imposed, and notify them of the right to make statements and the right to defend themselves according to law.

If any party concerned requests to make statement or defense, the request shall be set forth within 3 days from receipt of the written notice. The institute of legal affairs shall fully attend to the opinions of the party concerned and re-examine the case.

Article 19

Before making any decision on the administrative punishment by imposing a larger amount of fine, ordering the suspension of production or business, or by revoking any permit or license, the Ministry of Commerce shall notify in writing the parties concerned of the right to request for hearing.

Article 20

Where any party concerned requests for holding a hearing, the Administrative Punishment Committee of the Ministry of Commerce shall arrange the hearing in accordance with the provisions of Section III, Chapter V of the Law on Administrative Penalty.

Article 21

After re-examination or hearing, the institution of legal affairs shall submit all the case materials to the Administrative Punishment Committee, which shall try the case in form of a trial meeting.

Article 22

The Administrative Punishment Committee shall examine the following matters of a case:

(1)

Whether or not the facts of illegality are clear;

(2)

Whether or not the evidences are conclusive;

(3)

Whether or not it is in compliance with the legal procedure;

(4)

Whether or not the statements and defending explanations of the parties concerned are well-grounded;

(5)

Which law or regulation shall apply;

(6)

The category and extent of punishment.

Article 23

Through collective discussions and sufficient negotiations, the Administrative Punishment Committee shall put forward the following opinions for treatment in light of different circumstances of the cases concerned:

(1)

Whoever is suspected of constituting a crime shall be reported to the competent leader of the Ministry by the investigation organ and, upon the approval thereof, be transferred to the judicial body;

(2)

Where the facts are not deemed as illegal, no administrative punishment may be imposed;

(3)

Where the illegal act is venial and may be exempted from punishment according to law, no administrative punishment may be imposed.

(4)

Where the illegal act shall be subject to administrative punishment, the institution of legal affairs shall, in light of the trial opinions of the Administrative Punishment Committee, make an Administrative Punishment Decision, and report it to the competent leader of the Ministry for approval.

Article 24

After the Administrative punishment Decision is made, the investigation organ shall, in accordance with the provisions of Article 40 of the Law on Administrative Penalty and Section II, Chapter VII of the Civil Procedural Law, deliver it to the parties concerned on the spot, or serve it on the parties concerned or on the agent thereof within 7 days since the date when the Decision is made. The investigation organ shall keep the return receipt of service, and file all after the conclusion of the case.

The addressee shall give a clear indication of the date of receipt on the return receipt of service and affix his signature or seal on it. The date of receipt indicated by the addressee shall be the service date. For the service by way of mail, the service date shall be the date of receipt as indicated on the registered return receipt.

Article 25

The parties concerned shall carry out the administrative punishment decision within the time limit as specified in the Administrative Punishment Decision. In case anyone fails to carry out the administrative punishment decision within the prescribed period, the Ministry of Commerce may take the measures prescribed in Article 15 of the Law on Administrative Penalty for enforcement.

Article 26

Where the Ministry of Commerce implements administrative punishments by imposing fines and confiscating illegal gains, it shall adopt a system of separation of fines from collections. The fines and confiscated illegal gains shall be input into the special account for fines and confiscated money as opened by the Ministry of commerce in the fine-collection organization. The fines and confiscated money shall all be turned over to the State Treasury.

Article 27

Where the parties concerned truly have financial difficulties and need to defer the payment of fines or to pay them by installments, they shall, before the payment date as prescribed in the Administrative Punishment Decision, file an application with the investigation organ, with related certification materials (including financial reports) enclosed.

Article 28

The investigation organ shall, after receipt of an application, deliberate it in collaboration with the institution of legal affairs of the Ministry of Commerce, put forward opinions, report it to the competent leader of the Ministry and, upon the approval thereof, make a Reply to the Deferment of Payment or Payment by Installments.

Article 29

Where the parties concerned are approved to defer the payment of fines or pay them by installments, they shall make the payment within the specific period as prescribed in the Reply to the Deferment of Payment or Payment by Installments, and shall not apply again for further deferring payment or paying by installments.

Where the parties concerned fail to gain the approval, they shall pay the fines within the specific period as prescribed in the Reply to the Deferment of Payment or Payment by Installments.

Article 30

After the implementation of administrative punishment decision is concluded, the investigation organ shall file the case materials in a timely manner. The materials to be archived shall mainly include such case-related materials as the Termination Report for Case Investigation, the pre-notification of administrative punishment, the materials of statements and explanations of the parties concerned, the notes of hearings, the Administrative Punishment Decision, the return receipt of service and the related evidentiary materials.

Article 31

The Administrative Punishment Decision shall be made public on the website of the Ministry of Commerce for public inquiry, unless any national secret, business secret, or individual privacy is involved.

Article 32

The present Measures shall not apply to the administrative punishment for the personnel in the instrumentalities of the Ministry as imposed by the Ministry of Commerce, or any other decision on personnel treatment.

Article 33

The power to interpret the present Measures shall be vested in the Ministry of Commerce.

Article 34

The present Measures shall go into effect as of March 1, 2005.