Provisions of Shanghai Municipality on the Administrative Penalty Procedure of Market Supervision and Administration

 2018-10-15  1026



(Promulgated by Decree No. 43 of Shanghai Municipal People's Government

on September 5, 2016)

 

Chapter I  General Provisions

 

Article 1 (Purposes and Basis)

With a view to unifying the administrative penalty procedure of market supervision and administration, standardizing the exercise of their functions and powers of the market supervision and administration organs according to law, protecting the legitimate rights and interests of the citizens, legal persons or other organizations, these Procedures are formulated in accordance with the Administrative Penalty Law of the People's Republic of China, and the Administrative Compulsion Law of the People's Republic of China, and other laws and regulations, and in the light of the actual circumstances of this Municipality.

Article 2 (Application Scope)

These Procedures shall apply to the implementation of administrative penalties and related administrative law enforcement of the district/county market supervision and administration bureaus (hereinafter referred to as the district/county market supervision bureaus) in this Municipality.

Article 3 (Education and Instruction)

When investigating and dealing with violations of the law, the principle of combining punishment with education shall be adhered to, and the approaches of guidance, advice and other means shall be adopted for educating citizens, legal persons or other organizations to consciously abide by the law.

Article 4 (Level Guidance and Supervision),

The municipal industry and commerce administration department, quality and technical supervision department, food and drug supervision and administration department and the municipal department in charge of prices (hereinafter referred to as the municipal competent departments) shall strengthen the professional guidance and supervision of the district/county market supervision bureaus for handling the cases of administrative penalties; and supervision shall be exercised over the major cases of administrative penalties handled by the district/county market supervision bureaus.

Article 5 (Execution Connection)

The municipal competent departments shall, jointly with the municipal public security organ, establish and perfect the connection mechanism of administrative law enforcement and criminal justice, make clear the procedures and materials for transferring cases in the relevant professional areas.

The district/county market supervision bureaus shall, upon discovery of illegal acts that may probably constitute a crime, transfer the cases to the judicial organs in accordance with the relevant provisions of the State and this Municipality.

 

Chapter II  Jurisdiction

 

Article 6 District Jurisdiction

The administrative penalties shall be imposed by the district/county market supervision bureaus of the jurisdiction where the illegal acts are committed. Where there are other provisions of laws and administrative regulations, such provisions shall prevail.

Where two or more district/county market supervision bureaus have the jurisdiction over the same illegal acts, the district/county market supervision bureau filing the case first shall have the jurisdiction over the said case.

Article 7 (Designated Jurisdiction)

Where disputes over jurisdiction occur, the district/county market supervision bureaus, upon failure of negotiation, the case shall be submitted to the municipal competent departments for designation of jurisdiction. The district/county market supervision bureaus, when experiencing difficulties due to special reasons in handling the cases deemed by them to be within their jurisdiction, may report to the municipal competent departments for jurisdiction or designation of jurisdiction. The municipal competent departments shall, within 5 working days from the date of receiving the materials submitted, designate the department of jurisdiction for the said case.

The municipal competent departments, if necessary, may directly handle the cases under the jurisdiction of the district/county market supervision bureaus; they may also designate certain district/county market supervision bureaus for handling the cases under their own jurisdiction.

For the cases of administrative penalties designated by the municipal competent departments for jurisdiction of administrative penalty cases, the district/county market supervision bureaus shall handle the transfer procedures within 3 working days from the date of receiving the decisions of jurisdiction designation.

Article 8 (Transfer Jurisdiction)

Upon discovery of the cases handled by them not under their jurisdiction, the district/county market supervision bureaus shall promptly handle the case transfer formalities, and have the articles and materials related to the said cases transferred to the district/county market supervision bureaus or other administrative departments with jurisdiction.

Upon considerations of improper case transfer, the departments receiving the transfer shall report to their common administrative organs at the next higher level for jurisdiction designation, and shall not transfer again or return the cases on their own.

 

Chapter III  General Procedure of Administrative Penalty

 

Section 1  General Provisions

 

Article 9 (Procedural Requirements for Administrative Examination)

Administrative examination or investigation shall be conducted by no few than two administrative law enforcement officials, and their certificates of administrative law enforcement shall be produced as well.

Administrative law enforcement officials, while conducting administrative examination, shall inform the parties concerned of the contents, requirements and their related rights and obligations, and make records.

Article 10 (Avoidance)

In one of the following circumstances, the administrative law enforcement officials shall voluntarily avoid, and the parties concerned shall have the rights to apply for their avoidance.

1. The administrative law enforcement officials are parties of the case or the parties's close relatives;

2. The administrative law enforcement officials themselves or their close relatives have direct stake in the case; or

3. The administrative law enforcement officials have other relations with the parties concerned, which may affect the justice of the case.

The decisions for avoidance of administrative law enforcement officials shall be made by the persons in charge of the district/county market supervision bureaus.

Before the decisions of avoidance are made, the persons who shall voluntarily avoid or are challenged shall not cease the investigation of the case.

Article 11 (Correction Order)

The district/county market supervision bureaus, when ordering the parties to correct violations of the law, shall make clear the contents and time limits for correction.

The time limits for correction shall be determined in accordance with the provisions of laws, rules, regulations or technical specifications. The time limits for correction are generally not more than 30 days in the absence of such provisions of laws, rules, regulations or technical specifications; under the necessity of exceeding the time limits of 30 days, it shall be reported to the persons in charge of the district/county market supervision bureaus for approval.

Article 12 (Investigation Assistance)

The district/county market supervision bureaus, under the necessity of investigation assistance of the other district/county market supervision bureaus, shall make such requests in writing to the bureaus concerned.

The district/county market supervision bureaus shall, upon receiving the requests for investigation assistance, complete the investigation within 15 working days. Under the necessity of prolonging the time limits for investigation assistance due to special circumstances, the time limits may be extended to 15 working days, and the requesting district/county market supervision bureaus shall be informed.

 

Section 2  Case Filing

 

Article 13 (Filing Conditions)

The district/county market supervision bureaus shall file the cases of suspected illegal acts, which are under their jurisdiction.

Article 14 (Filing Time Limit)

The district/county market supervision bureaus shall, upon the discovery of clues for illegal acts via exercising inspection power or complaints and reports, transfer and assignment, within 10 days from the date of receiving the clues, check and decide whether to file a case; the time limits may be extended to 15 days under special circumstances.

The time needed by inspection, testing, verification, appraisal and that needed by other administrative organs for investigation are not included in the time limits specified in the preceding clause.

Article 15 (Filing Results)

Approval documents shall be filled in for filing or not filing a case and submitted to the persons in charge of the district/county market supervision bureaus for approval.

Upon the decision to file a case, the district/county market supervision bureaus shall inform the parties concerned of the filing decision, and designate more than 2 administrative law enforcement officials to investigate and handle the case.

 

Section 3  Investigation and Evidence Collections

 

Article 16 (Investigation Requirements)

After a case is filed, the administrative law enforcement officials shall conduct investigation and collect evidence in a comprehensive, objective and impartial manner.

When collecting evidence from the parties or the persons concerned, the administrative law enforcement officials shall inform them of the obligations to provide relevant information, answer questions truthfully and assist in the investigation.

When collecting evidence from the parties for the first time, the administrative law enforcement officials shall inform the parties concerned of the rights to apply for avoidance.

Article 17 (Investigation Contents)

The facts for investigation and evidence collection mainly include:

1. the basic information of the parties;

2. whether there are illegal acts;

3. whether the illegal acts are conducted by the parties;

4. the time, place, manner and consequence of the illegal acts; and

5. other facts relevant to the case.

Article 18 (Types of Evidence)

The administrative law enforcement officials shall collect and produce evidence relevant to the case according to law. The evidences include the following:

1. documentary evidence;

2. material evidence;

3.audio-visual materials;

4.electronic data;

5.the witnesses's testimonies;

6.the parties's statements;

7.appraisal opinions; and

8.the records on the scene.

The above evidences shall be used as the basis for ascertaining the facts when they conform to the provisions of laws, rules, and regulations, and their truthfulness is verified. The provisions of the preceding clause shall be applicable to the evidences obtained before a case is filed.

Article 19 (Proof Material Providing)

The administrative law enforcement officials may require the parties and witnesses to provide evidences related to the case, and the material providers shall sign or seal the relevant proof materials. 

Where suspected counterfeit products are found in the investigation of a case, the district/county market supervision bureaus may hand them over to the companies whose products are counterfeited or other right holders to discern, identify and provide proof materials.

Article 20 (Documentary and Material Evidence)

The administrative law enforcement officials shall collect the original documentary and material evidences as proof.

When it is difficult to collect the original documents, the xerocopy, photocopy or transcription may be collected. After proof by the providers, the issuing date and the source of the evidences shall be indicated and both the providers and the administrative law enforcement officials shall sign and seal the said evidences.

When it is difficult to collect the original materials, certified copies of the original evidence and other evidences such as photos and video recordings may be collected. After proof by the providers, the issuing date and the source of the evidences shall be indicated and both the providers and the administrative law enforcement officials shall sign and seal the said evidences.

Article 21 (Audio-visual Materials)

The administrative law enforcement officials shall collect the original media of audio-visual materials such as audio and video recordings, which are related to the case as evidence. When it is difficult to collect the original media, duplicates may be collected, and the producing methods and time, the producers and proof objects shall be indicated.

The audio-visual materials with sound shall be accompanied by written records of the sound contents.

Article 22 (Electronic Data)

The administrative law enforcement officials shall collect the original media of electronic data. When it is difficult to collect the original media, evidences may be obtained by way of taking photos and recording videos, copy and replication and having the contents printed and fixed as written evidences. The producing methods and time, the producers and proof objects shall be indicated at the time of collection.

When it is difficult for the administrative law enforcement officials to collect the evidence themselves in the circumstances that the electronic data is deleted, tampered with or the contents are complicated, the district/county market supervision bureaus may entrust in writing a qualified appraisal institution with the task of inspection and analysis and written opinions shall be made by the appraisal institution.

Article 23 (Record of Inquiries)

When the administrative law enforcement officials make inquiries with the parties and witnesses, such inquiries shall be done individually and written records shall be made for such inquiries.

 The records of inquiry shall be submitted to the persons being inquired of for check, and the administrative law enforcement officials shall read them out to the persons being inquired who have difficulty in reading. If there is any error or omission in the records of inquiry, the persons being inquired shall be allowed to make corrections or supplements. The corrections or supplementary parts shall be confirmed by the persons being inquired with signature, seal or fingerprint.

When the records of inquiry are checked and proved to be correct, the records shall be confirmed by the persons who have been inquired of with their signature or seal or fingerprint on each page of the records. The administrative law enforcement officials shall sign the records of inquiry.

Article 24 (Inspection, Testing, Verification and Appraisal Opinion)

Under the necessity of carrying out the inspection, testing, verification and appraisal of the matters in a case, the district/county market supervision bureaus shall in writing entrust a qualified institution with the legal qualification of inspection, testing, verification and appraisal to carry out the task. Without corresponding statutory institutions, other qualified institutions may be entrusted for the task.

The inspection, testing, verification and appraisal opinions shall be signed or sealed by the personnel of inspection, testing, verification and appraisal and the official seals shall be added to them.

The parties concerned shall be informed of the inspection, testing, verification and appraisal opinions. Where there are re-inspection provisions of laws, rules and regulations, the parties concerned shall be informed of their rights of application for re-inspection in writing at the same time.

Article 25 (Records on the Scene)

The administrative law enforcement officials, while producing records on the scene, shall specify the situation of the scene, the records shall be signed or sealed by the administrative law enforcement officials and the parties concerned. When it is necessary, taking photos and recording videos and other ways may be taken to record the scene.

Article 26 (Overseas Evidence)

For the evidences obtained outside of the People's Republic of China, their sources shall be explained and certified by the public notary organs in the host countries, and shall be authenticated by the embassies or consulates of the People's Republic of China in those countries, or proof procedures shall be gone through according to the provisions of the relevant treaties signed by the People's Republic of China and the countries from which the evidences are obtained.

The languages and the texts of the foreign evidences shall be provided with a Chinese version translated by qualified translation agencies or other accurate Chinese versions.

For the evidences obtained in Hongkong Special Administrative Region, the Macao Special Administrative Region and the Taiwan region of the People's Republic of China, the proof procedures shall be gone through in accordance with the relevant provisions of the State.

Article 27 (Order for Business Suspension)

The district/county market supervision bureaus, when finding simultaneously the following circumstances in the operators's illegal acts in their inspection of the properties related to price offences, may order the parties concerned to suspend the relevant business after the approval of the persons in charge of the district/county market supervision bureaus.

1. The illegal acts are complicated or serious and heavy punishment may be imposed after facts are found out.

2. Illegal acts will continue, if the relevant business is not suspended.

3. It may affect the identification of illegal facts, and if the relevant business is not suspended and other measures are not sufficient to ensure the identification.

The parties concerned shall be notified of the orders to suspend the relevant business in writing, and the suspension shall be strictly limited to the scope of business related to the illegal acts, and the unrelated business shall not be included in the scope of suspension.

The time limits of the suspension order for the relevant business shall not be more than 15 days; where the situation is complex, 15 days may be extended at most after the approval of the persons in charge of district/county market supervision bureaus.

Article 28 (Sampling Procedures)

The district/county market supervision bureaus shall notify the parties concerned that they shall be present at the scene when sampling.

The administrative law enforcement officials shall produce sampling documents, cover the samples with seals, and the sampling documents shall be signed or sealed by the administrative law enforcement officials and the parties concerned.

Where there are other provisions of the State and this Municipality on the sampling mechanisms or manners, those provisions shall prevail.

Article 29 (Handling Failure of Cooperation and Presence of the Parties in Investigation and Evidence Collection)

In the course of investigation and evidence collection, under one of the following circumstances, reasons shall be indicated by two law enforcement officials in the written records and sample collection documents, and audio-visual recordings and other materials shall be added as proof; when necessary, a third party may be invited as a witness:

1. The parties concerned refuse to be present or not present due to objective reasons.

2. The parties concerned refuse to sign, seal or confirm by other ways when required to sign, seal the written records and evidence collection documents or refuse to confirm by other ways.

Article 30 (Final Investigation Report)

Upon the completion of the investigation of a case, the handling bodies shall produce written reports.

The contents of the reports shall include the basic information of the parties concerned, the causes, facts and evidences of the cases, process of investigation and proposals for handling; as to the cases for which administrative penalties are to be imposed, the nature of the cases, the basis for the application of the penalty discretionary standards, the basis of penalties and the proposals for penalties shall be included as well.

Article 31 (Proposals for Handling)

The handling bodies shall, according to different circumstances, put forward the following proposals:

1. Administrative penalties are proposed for actual offences.

2. Closure of the cases is proposed for the offences that are not proved.

3. Administrative penalties are not proposed for minor offences with correction being made in a timely manner, and no harmful consequences being caused.

4. Administrative penalties are not proposed for the offences beyond the limitation of prosecution.

5. Transfer to relevant organs is proposed for the cases that shall be transferred to other administrative organs for handling or the cases that shall be transferred to judicial organs for suspected crimes.

6. Other circumstances for handling in accordance with the law.

 

Section 4  Review and Notification

Article 32 (Review)

Upon the completion of the investigation of a case, the handling bodies shall submit the final investigation reports and relevant materials to the legal institutions for review.

Article 33 (Review Contents)

The contents of review mainly include:

1. whether the handling bodies have jurisdiction over the case;

2. whether the basic information of the parties concerned is clear;

3. whether the facts of the case are clear and the evidences are sufficient;

4. whether the determination as to the nature of the case is accurate;

5. whether the basis for application is correct;

6. whether the application of the penalty discretionary standards and proposals for handling are appropriate; and

7. whether the procedure is lawful.

Article 34 (Report for Approval)

The legal institutions shall put forward written opinions of review to the handling bodies in a timely manner, and will send back the relevant materials of the cases to the handling bodies.

The handling bodies shall submit the final investigation reports, the review opinions, the adoption of the review opinions and related materials to the persons in charge of the district/county market supervision bureaus for review and approval.

Article 35 (Penalty Notification)

Upon the approval of the administrative penalty proposals, the district/county market supervision bureaus shall notify the parties concerned in writing of the facts, reasons, basis, contents of the administrative penalties be imposed and the parties's rights of statement and defense in writing.

The parties concerned are deemed to waive their rights of statement and defense if failing to exercise these rights within 3 working days of receiving the notification of administrative penalties.

Where there is overpayment made by the consumers or other operators due to the parties's price offences, the district/county market supervision bureaus shall also inform the parties of the amount that they shall refund, the confiscation of the non refunded amount, and the fines to be imposed according to their refunding states.

Article 36 (Review of Statement and Defense)

The district/county market supervision bureaus shall fully listen to the statements and defenses of the parties, and record the facts, reasons, and evidences presented by the parties. The legal departments of the district/county market supervision bureaus shall review the matter.

The facts, reasons or evidences presented by the parties concerned shall be adopted if they are valid. Aggravated administrative penalties shall not be allowed because of the parties's statements and defenses.

Article 37 (Hearing)

Where the administrative penalties to be imposed by the district/county market supervision bureaus are in the scope of hearing, the parties concerned shall be informed of their rights to request a hearing.

The Provisions of Shanghai Municipality on Administrative Penalty Hearing Procedures are applicable to the hearing for administrative penalties organized by the district/county market supervision bureaus.

Article 38 (Legal Review of Major Administrative Penalty Decision)

Legal reviews shall be conducted for the major decisions of administrative penalties in accordance with the relevant provisions of this Municipality.

 

Section 5  Decision

 

Article 39 (Decision Making)

The persons in charge of the district/county market supervision bureaus shall, according to the investigation reports, examination opinions, review comments, hearing records and other materials, make decisions of administrative penalties or other handling decisions according to law.

As to the heavier administrative penalties to be imposed for the complex or serious offences, the persons in charge of the district/county market supervision bureaus shall make decisions via collective discussion.

The criteria of heavier administrative penalties to be imposed for the complex or serious offences shall be determined by the municipal competent departments.

Article 40 (Time Limit for Business Suspension and Rectification)

The time limits for business suspension and rectification shall not be more than 7 days at the most when the district/county market supervision bureaus make penalty decisions of business suspension and rectification for the parties of price offences

Article 41 (Written Decision of Administrative Penalty)

The district/county market supervision bureaus shall produce written decisions of administrative penalties when making decisions of administrative penalties. The contents of the written decisions of administrative penalties include:

1. the parties's name, address, and other basic information;

2. the facts and evidences of the violations of laws, rules or regulations;

3. the contents and basis of the administrative penalties;

4. the circumstances and reasons of the adoption of the parties's statements and defenses;

5. the manners and time limits of the enforcement of administrative penalties;

6. the ways and time limits of application for administrative reconsideration or bringing an administrative lawsuit in the case of refusing to accept the decisions on administrative penalties;

7. the names of the district/county market supervision bureaus and the dates of making the decisions; and

8. other contents that shall be stated in accordance with the law.

The decisions of administrative penalties shall be affixed with the seals of the district/county market supervision bureaus.

Article 42 (Active Disclosure of Administrative Penalty Decision)

The administrative penalty decisions made by the district/county market supervision bureaus shall be actively disclosed in accordance with the provisions of the Procedures of Shanghai Municipality on the Active Disclosure of Administrative Penalty Case Information.

Article 43 (Written Decision of Impunity)

Written decisions of impunity shall be produced with clear statements of the facts of offence, reasons and basis for impunity of administrative penalties by the district/county market supervision bureaus and shall be delivered to the parties concerned upon making impunity decisions of administrative penalties.

Article 44 (Time Limit for Case Handling)

Decisions of case handling shall be made within three months after a case is filed; when handling decisions cannot be made within the time limits, the time limits may be extended to 3 months at most after the approval of the persons in charge of the district/county market supervision bureaus; when handling decisions cannot be made after the extended time limits due to special circumstances, it shall be submitted to the municipal competent departments to decide whether the time limits shall be extended again or the duration of extension.

The time required for hearing, announcement, inspection, testing, verification and appraisal in the case handling process shall not be included in the time limits for case handling.

Where the provisions of the laws, rules and regulations provide that the district/county market supervision bureaus shall order the parties to rectify first, and due to the parties's failure of fulfilling the obligations of correction as required, penalties are imposed upon the parties by the district/county market supervision bureaus, the time required for the parties to fulfill the obligations of correction is not included in the time limits for case handling.

 

Chapter IV  Summary Procedure of Administrative Penalty

 

Article 45 (Scope of Summary Procedure of Administrative Penalty)

Where illegal facts are conclusive and legal basis are solid, a fine of 50 yuan or less is imposed on citizens and a fine of 1,000 yuan or less on legal persons or other organizations or a warning is given to them, decisions of administrative penalties may be made on the spot. But administrative penalties may not be imposed on the spot for the cases of which the types and ranges of penalty meet the requirements of the provisions of the preceding clause after mitigation of punishment.

Article 46 (Punishment Procedure on the Spot)

When investigating and handling offences on the spot to which the summary procedures on the spot applicable, illegal facts shall be investigated and necessary evidences shall be collected on the spot, and the relevant provisions of Article 9,10 and 11 shall be followed.

Article 47 (Notification of Punishment on the Spot)

Before making decisions of administrative penalties on the spot for the cases to which summary procedures are applicable, the administrative law enforcement officials shall inform the parties of the facts, reasons, and basis of the decisions of administrative penalties, and their rights of statement and defense according to law.

Article 48 (Written Decision of Punishment on the Spot)

The administrative law enforcement officials shall, when making decisions of administrative penalties on the spot, fill out written decisions of administrative penalties which are uniformly produced with predetermined formats and numbers.

The decisions of administrative penalties shall state clearly the parties's basic situation, illegal behavior, basis for administrative penalty, the type, amount, time, spot of penalty, remedy system and the name of district/county market supervision bureau with the stamp of the very bureau and the sign or seal of the administrative law enforcement officials.

The decisions of administrative penalties shall be delivered on the spot to the parties concerned, who shall sign or seal the documents. Where a party refuses to sign or seal, the administrative law enforcement officials shall state the situation.

Article 49 (Record Keeping)

In two working days after the decisions of administrative penalties made on the spot, the administrative law enforcement officials shall submit the relevant materials of the case to the district/county market supervision bureaus for the record.

 

Chapter V  Preservation Registration, Seizure, Detention in Advance

 

Article 50 (Taking Measures for Preservation Registration in Advance)

Under the circumstances that the evidences may be lost or difficult to obtain later, the district market supervision bureaus may take the measures for preservation registration in advance against the evidences relating to the suspected offences.

To take and remove the measures for preservation registration in advance, it shall be approved by the persons in charge of the district market supervision bureaus.

The administrative law enforcement officials shall, when registering and preserving the relevant evidences, count the evidences on the spot, and issue notices of evidence registration and preservation in advance and property lists to the parties concerned. The parties and administrative law enforcement officials shall sign or seal the said notices.

During the periods of registration and preservation in advance, the parties concerned or the relevant persons shall not damage or destroy or transfer the evidences.

Article 51 (Removing Measures for Preservation Registration in Advance)

The following measures shall be taken within 7 days for the evidences registered for preservation in advance:

1. Evidence preservation measures shall be taken in a timely manner by way of taking notes, replication, taking photos and recording videos, depending on the circumstances.

2. Evidences that need inspection, testing, verification and appraisal shall be timely sent to the relevant institutions for inspection, testing, verification and appraisal.

3. Seizure and detention measures shall be taken according to law for the evidences that need to be seized and detained, according to law.

4. Decisions of removing the preservation registration measures shall be made for the evidences and properties in the circumstances that the illegal facts are not conclusive, or though the illegal facts are conclusive, seizure and detention measures shall not be taken in accordance with the law.

Article 52 (Seizure and Detention Procedures)

The district market supervision bureaus, when investing cases, may take seizure, detention and other compulsory administrative measures after the approval of the persons in charge of the district market supervision bureaus in accordance with the law. Seizure and detention measures shall be removed in a timely manner in the circumstances provided by the provisions of Article 28 of the Administrative Enforcement Law of the People's Republic of China.

The seized premises, facilities or properties, shall be preserved with the seals bearing the stamps of the district market supervision bureaus. No one shall be allowed to arbitrarily unseal the preserved premises, facilities or properties.

Lists shall be produced for the seized goods. The administrative law enforcement officials and the parties concerned or the relevant persons shall sign or seal the lists.

Article 53 (Management of Seized and Detained Properties)

The district market supervision bureaus shall properly keep the seized and detained premises, facilities or properties, and shall not use or damage them.

The fresh and living things or other properties not easy to keep may be disposed in advance by way of auction or sale, with the parties's written consents and the approval of the persons in charge of the district market supervision bureaus and after relevant measures are taken to retain the evidences.

Article 54 (Handling of Unclaimed Property)

The district market supervision bureaus shall notify the parties to claim in time the goods of which the measures of preservation registration or seizure and detention in advance are removed according to law.

Where the parties are not indeterminate or the parties are unavailable for contact, the district market supervision bureaus shall notify the parties to claim the properties within six months of the announcement by way of public announcement. As to the goods claimed by no one after the expiration of the claim period designated in the announcement, the district market supervision bureaus may dispose the said goods by way of auction or sale in accordance with the relevant regulations. The money thus obtained shall be kept in the special accounts of the district market supervision bureaus

The money obtained from the disposed goods, if claimed by no one within one year from the disposal date, shall be turned over to the State treasury after the deduction of necessary expenses of goods storage and handling. Where there are provisions of laws and administrative regulations, such laws and administrative regulations shall prevail.

Article 55 (Handling of the Parties Uncooperative and Not Present)

Where the parties refuse to sign or seal the records as required when registration for preservation, seizure or detention and other measures are taken in advance, it shall be stated in the records; where the parties are not present, witnesses shall be invited to present on the scene, and the witnesses and administrative law enforcement officials shall sign or seal the records.

 

Chapter VI  Implementation

 

Article 56 (Performance Obligations)

After the decisions of administrative penalties are made in accordance with the law, the parties shall pay the administrative penalties within the time limits of the administrative penalty decisions.

Article 57 (Deferred Payment or Installment)

The parties applying for deferred payment or installment of fines or illegal gains shall submit written applications attached with the relevant supporting materials.

The district/county market supervision bureaus shall, when the parties's applications for deferred payment or installment of fines or illegal gains are permitted after the approval of the persons in charge of the district/county market supervision bureaus, notify the parties in writing of the time limits of the deferred payment or installment.

Article 58 (Written Decision of Additional Fine)

Where the parties fail to pay the fines or the illegal gains to be confiscated within the time limits, the district/county market supervision bureaus may impose additional fines according to law; and the amount of the additional fines shall not exceed the amount of the original fines or the illegal gains.

The district/county market supervision bureaus shall, when deciding to impose additional fines, produce and send written decisions of additional fine to the parties concerned.

The names and address of the parties concerned, reasons and basis of the decisions of additional fines, the specific amount of the fines, payment time, means of relief, names and seals of the administrative organs, and date shall be stated in the written decisions of additional fine.

Article 59 (Application for Court Enforcement)

The district/county market supervision bureaus may, when the parties fail to apply for administrative reconsideration or bring an administrative lawsuit within the prescribed time limits, or fail to perform the decisions of administrative penalties, apply to the people's courts for mandatory enforcement according to law.

 

Chapter VII  Closure and Supervision

 

Article 60 (Closing Documents)

The administrative law enforcement officials shall produce closing documents within 15 working days, and close the cases after the approval of the persons in charge of the district/county market supervision bureaus when there exists one of the following circumstances:

1. Decide to withdraw the case;

2. Decide not to impose administrative penalties or not to impose administrative penalties again;

3. The case is transferred to a department which has jurisdiction over the case or to a judicial organ;

4. The decision of administrative penalties is performed or the enforcement is completed;

5. The enforcement is completed, or the enforcement procedure is terminated after the judgment or ruling of the people's courts; or

6. Other circumstances in which a case shall be closed in accordance with the law.

Article 61 (Disposal of Confiscated Property)

Except the goods that shall be destroyed in accordance with the law, all the confiscated illegal properties shall be sold through auction by entrusted auction houses with legal qualifications for public auction or shall be dealt with in accordance with the relevant provisions of the State. Confiscated bills shall be dealt with uniformly by the relevant departments.

The destruction of goods shall be conducted in accordance with the relevant provisions of the State; where there are no such provisions, the destruction shall be conducted under the supervision of two or more administrative law enforcement officials after the approval of the persons in charge of the district/county market supervision bureaus. Destruction records shall be produced by the administrative law enforcement officials. The administrative law enforcement officials shall sign or seal the destruction records and record videos, take photos, and file for future reference.

Fines and the money obtained from the confiscated goods shall be turned over to the State treasury. No unit or individual shall be allowed to withhold, divide privately or divide in a disguised form.

Article 62 (Filing)

The materials formed in the process of case handling shall be filed. Each case shall be filed separately with one original and a duplicated cope for each.

Article 63 (Re-examination Procedure)

The municipal competent departments may, in accordance with their duties and functions, instruct the district/county market supervision bureaus to re-examine their decisions of administrative penalties made according to these Provisions within a prescribed time limits.

The district/county market supervision bureaus shall, within the prescribed time limits, separately organize the personnel to examine the original decisions of administrative handling and submit the decisions of examination to the municipal competent departments.

 

Chapter VIII  Time Period and Service

 

Article 64 (Time Period)

Time period is calculated in terms of the day, month and year, the beginning date of the time period is not included in the calculation.

Where the expiration date of a time period falls on a holiday, then the day immediately following the holiday shall be regarded as the expiration date. But the handling periods of the district/county market supervision bureaus shall not be postponed.

The transit time shall not be included in the time period. Administrative law enforcement documents delivered before the expiration date shall not be deemed overdue.

Article 65 (Service of Penalty Decision)

Written decisions of administrative penalties shall be delivered to the parties on the spot after announcement; where the parties are not present, the district/county market supervision bureaus shall deliver the decisions of administrative penalties to the parties within 7 days in accordance with Article 66 and 67 of these Provisions.

Article 66 (Ways of Service)

The administrative penalty documents shall be delivered directly to the addressees. Where the addressee is a citizen, the adult family member(s) living with the addressee shall sign for the documents when the addressee is absent; where the addressee is a legal person or other organization, the legal representative of a legal person, the principal person-in-charge of other organization or the person in charge of receiving documents of that legal person and organization shall sign the documents; where the addressee has commissioned an agent to receive the documents, the agent may be allowed to sign the documents. Where the addressee has designated an agent to receive the documents for the district/county market supervision bureau, the documents shall be delivered to the agent who shall sign the documents.

Where the addressee or his/her adult family member living with him refuses to accept the documents, the sender may invite the representatives of the relevant grass-roots organization or the addressee鈥檚 unit to present on the scene, explain the situation to them, and record the reasons and date of refusal on the proof of service, which shall be signed or sealed by the sender and the witnesses, and leave the documents at the addressee's residence; the sender may also leave the documents at the addressee's residence, and record the service process by taking photos, record videos and other means. In this way, the service is deemed to be effected.

The district/county market supervision bureaus may, according to the actual circumstances, deliver the documents by way of mail service, commissioned service; the documents except the administrative penalty decisions may also be delivered with the addressee鈥檚 consent by way of fax or e-mail that can confirm the receipt of the service.

Article 67 (Service by Announcement)

Where the addressee鈥檚 whereabouts is unknown, or the documents cannot be delivered by way of direct service, retention service, commissioned service or postal service, the service by announcement may be adopted. Where the service of announcement is adopted, the district/county market supervision bureaus may post the announcement in the notice-boards of the district/county market supervision bureaus and the residence of the addressee; the announcement may also be made via newspapers, government websites and other media. Where an announcement is posted at the residence of the addressee, the posting process shall be recorded by taking pictures, recording videos and other means of recording.

The service is deemed to be effected after 60 day from the issuing date of the announcement,

After the service of announcement, the reasons and process shall be recorded in the files of the case.

 

Chapter IX  Supplementary Provisions

 

Article 68 (Concept)

The terms of 鈥渁bove's, 鈥渓ess than's and 鈥渨ithin's in these Provisions include the number itself.

The handling bodies mentioned in these Provisions refer to the administrative law enforcement agencies and market regulators of the district/county market supervision bureaus.

The persons in charge of the district/county market supervision bureaus as mentioned in these Provisions refer to the principal responsible persons or the persons in charge of the supervision.

Article 69 (Liability)

The staff of district/county market supervision bureaus that illegally impose administrative penalties shall be investigated for administrative responsibilities in accordance with the Procedures of Shanghai Municipality on Fault Responsibility Investigation in Administrative Law Enforcement and other regulations; where the violation is serious and suspected of a crime, it shall be transferred to judicial organs.

Article 70 (Applicable Special Provisions)

The handling of complaints, reporting and notification in the administrative penalty process of cases of the district/county market supervision bureaus shall be dealt with in accordance with the relevant provisions of the State.

These Provisions are applicable to the implementation of the administrative penalties for trademark violations by the Intellectual Property Office of Pudong New Area.

Article 71 (Application Reference)

The municipal competent departments, when imposing administrative penalties, may refer to, besides those clearly defined in these Provisions, the relevant provisions that conform to the record keeping of filing time limits, suspension of relevant business, penalty decisions on the spot  and other relevant provisions of these Procedures.

Article 72 (Effective Date)

These Provisions shall be effective as of November 1, 2016.