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PROVISIONS
FOR IMPOSING ADMINISTRATIVE PENALTIES CONCERNING THE IMPORT AND
EXPORT COMMODITY INSPECTION OF THE PEOPLE'S REPUBLIC OF
CHINA
(TRIAL IMPLEMENTATION)
(Promulgated by the State Administration of Import and Export
Commodity Inspection on February 20, 1995)
Chapter
I General Provisions
Chapter
II Jurisdiction of Punishment
Chapter
III Acts Violating the Commodity Inspection Regulations and
Rules and Punishment
Chapter
IV Procedures and Implementation of Penalties
Chapter
V Supplementary Provisions
Chapter
I General Provisions
Article
1 With a view to strengthening the inspection and administration
on import and export commodities, standardizing the acts in performing
the commodity inspection according to law, these Provisions are
formulated in accordance with the "Law of the People's Republic
of China on Import and Export Commodity Inspection" (hereinafter
referred to as the Commodity Inspection Law ) and the "Regulations
for the Implementation of the Law of the People's Republic of
China on Import and Export Commodity Inspection" (hereinafter
referred to as the Regulations for the Implementation of the Commodity
Inspection Law).
Article
2 For any citizens, legal persons and
other organizations which violate the "Commodity Inspection Law"
and the "Regulations for the Implementation of the Commodity Inspection
Law", as well as the other laws, regulations or the provisions
concerning the import and export commodity inspection specified
in other rules (hereinafter referred to as the commodity inspection
regulations and rules), are to be imposed administrative penalties,
they should be given punishment in accordance with the relevant
provisions of these Provisions.
Article
3 The administrative penalties concerning
the commodity inspection imposed shall be based on clear facts,
accurate evidence, correct-applying the Commodity Inspection Law,
regulations and rules, lawful procedures and appropriate sentencing.
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Chapter
II Jurisdiction of Punishment
Article
4 For cases violating the commodity inspection
regulations and rules, the commodity inspection authorities in
the place where the violation acts happened or were found, shall
be responsible for investigation and handling. If the party resides
in other place, he/she/it may be transferred to the commodity
inspection authorities in the place of the party's residence for
handling.
Article
5 If act of a party violates the laws,
over which more than two commodity inspection authorities have
the jurisdiction, the case is to be under the jurisdiction of
the commodity inspection authorities that first accepted the case.
The other commodity inspection authorities in relation to the
case, shall coordinate with the commodity inspection authorities
above-mentioned to investigate and deal with the case.
In
case any disputes arise from the jurisdiction of more than two
commodity inspection authorities, they shall be settled through
negociation. If negociation fails to be made, the right of jurisdiction
shall be designated by the higher commodity inspection authorities
or even by the State Administration of Commodity Inspection.
Article
6 With regard to the administrative penalties
concerning the qualification of accreditation marks or rescinding
the import safety quality license, rescinding the export quality
license approved by the State Administration of Commodity Inspection
and cancelling the qualification of designation by the State Administration
of Commodity Inspection or the qualification of designation and
accreditation by the accreditation organizations, they can be
carried out, only after they have been submitted to the State
Administration of Commodity Inspection for approval.
Article
7 In case the violating act of a party
involved in the provisions of other laws, regulations and rules,
the commodity inspection authorities may impose the administrative
penalty in conjunction with the competent departments.
Article
8 If act of a party which violates the
commodity inspection law, regulations and rules constitutes a
crime, the party shall be transferred to the judicial organ and
prosecuted according to the Criminal Law.
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Chapter
III Acts Violating the Commodity Inspection Regulations
and
Rules and Punishment
Article
9 Those who violate the commodity inspection
regulations and rules with any of the following acts, depending
on the seriousness of the case, shall be subject to the penalty
of criticism by circular, warning or suspension of application
for inspection, and may be imposed a fine of 1% up to 5% of the
total commodity value by the commodity inspection authorities:
1.
Marketing or using import commodities which are subject to statutory
inspection without applying for inspection.
2.
Exporting the commodities which are subject to statutory inspection
without applying for inspection.
3.
Importing , marketing or using commodities subject to the import
safety license system or exporting commodities subject to the
export quality license system or hygienic registration/list-entry
system without obtaining the required license or relevant certificates;
4.
Using the vessel's holds or containers without possessing any
certificate to prove their qualified conditions or already found
not up to the requirements through inspection for carrying the
perishable food or frozen goods for export;
5.
Providing or using the packages and containers for shipment of
export dangerous goods without undergoing survey by the commodity
inspection authorities.
6.
Any other acts of evading the compulsory inspection of the commodity
inspection authorities.
Article
10 Those who violate the commodity inspection
regulations and rules by committing any one of the following acts,
depending on the seriousness of the case, shall be subject to
the penalty of criticism by circular, warning or suspension of
application for inspection, and may be imposed a fine of 5% up
to 20 % of the total commodity value by the commodity inspection
authorities.
1.
Marketing or using the import commodities judged by the commodity
inspection authorities through inspection not up to the compulsory
standards or other standards that must be complied with.
2.
Exporting the commodities judged not up to standard through inspection
or random inspection by the commodity inspection authorities.
3.
Intentionally changing the quality, specifications, quantity,
weight and packaging of the export commodities already inspected
and judged up to standard by the commodity inspection authorities;
4.
Intentionally changing the samples drawn by the commodity inspection
authorities;
5.
Intentionally changing or resigning, or impairing the commodity
inspection marks, seals and certification marks on the import
and export commodities and their packages affixed by the commodity
inspection authorities;
6.
Providing or using the packages and containers already judged
by the commodity inspection authorities as substandard for shipment
of outbound dangerous goods;
7.
Applying to the commodity inspection authorities for inspection
not according to the real conditions, obtaining the relevant certificates
and documents from the commodity inspection authorities by dishonest
means.
Article
11 In case the enterprises which have
been approved to use certification marks or granted the import
safety license, export quality license or certificates of hygiene
registration/list-entry are found not up to the specified requirements
set upon reexamination, the commodity inspection authorities shall
instruct them to make improvements within the time limit . If
they still fail to meet the specified requirements beyond the
time limit , their qualification for using the certification marks
shall be cancelled or their import safety quality license, export
quality license or certificates or hygiene registration/list-entry
shall be revoked subject to approval of the State Administration
of Commodity Inspection.
Article
12 For those units which have obtained
the qualification of the certificate of origin with the acts by
providing fake materials, obtaining certificate of origin by dishonest
means, and illegally assigning the certificate of origin, they
shall be subject to the penalty of criticism by circular, or suspension
for the time being and even cancellation of the qualification
for application for certificate of origin.
Article
13 The inspection, superintending and
surveying organizations designated or accredited by the State
Administration of Commodity Inspection and the commodity inspection
authorities, which do not exercise their duties according to the
stipulations or fail to meet the specified requirements through
inspection may be ordered to stop their inspection, superintending
and survey on import and export commodities and order them to
make improvements within the time-limit. If they still fail to
meet the requirements beyond the time limit, their qualification
of designation or accreditation shall be cancelled.
Article
14 Any organizations without approval,
designation and accreditation by the State Administration of Commodity
Inspection or by the commodity inspection authorities authorized
by the State Administration of Commodity Inspection intentionally
conduct the inspection, superintending and surveying business
of import and export commodities, shall be ordered to stop the
inspection, superintending and surveying business unauthorized,
and shall be given a penalty of warning, criticism by circular
or a fine less than 3 times the illegal gains.
Article
15 The accredited personnel including the inspectors, assessors,
personnel engaged in application for inspection, etc. accredited
or registered by the commodity inspection authorities who commit
the acts by violating the commodity inspection regulations and
rules through examination shall be ordered to stop their business
activities for inspection, assessment and application for inspection.
If the acts of violations are serious, their qualification of
accreditation or registration shall be cancelled.
Article
16 For the export commodities already
applied for inspection, but found to be counterfeits of poor quality,
the production and management units shall be ordered to cease
producing and exporting the goods. The counterfeit goods in question
of inferior quality may be destroyed under supervision, a fine
less than the corresponding value of the export commodity may
be imposed exclusively or concurrently.
Article
17 Those who falsify, re-make or illegally
use commodity inspection certificates/documents, seals/stamps,
marks, sealings and quality certification marks, and those who
trade or erase/alter commodity inspection certificates/documents
and marks may be imposed a fine of RMB 5, 000 yuan up to RMB 30,
000 yuan or they may be imposed a fine less than the total value
of the commodities, if the certificates have already been used
for imports or exports
Article
18 The commodity inspection authorities
shall not impose a repeated penalty on the party with the same
acts of violation of law.
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Chapter
IV Procedures and Implementation of Penalties
Article
19 The commodity inspection authorities
when discover or accept the information believe that it is necessary
to impose a penalty on the citizens, legal persons or other organizations,
which commit the acts of violating the commodity inspection regulations
and rules, they should file the case, make investigation and deal
with the case.
Article
20 The personnel of the commodity inspection
authorities in charge of handling the case, when making investigation
and gathering evidence, shall be at least no less than two persons
and show their commodity inspection identity cards.
Article
21 The relevant citizens, legal persons
and other organizations shall provide the commodity inspection
authorities with supports and assistance to make investigation
and gather evidence.
Article
22 The commodity inspection authorities
when investigating the case of violation of law, may adopt the
following measures for investigation and gathering evidence:
1.
Investigate and interrogate the party or insider;
2.
Review, make records or copy the relevant contracts, notes, certificates,
documents and other materials involved in the case;
3.
Investigate or take photos of the relevant articles and scene
involved in the case;
4.
Order the party to keep well the import and export commodities
involved in the acts of violation of law. If necessary, the relevant
commodities shall be sealed up or marked or taken out as evidence.
The
transcript of investigation and interrogation shall be signed
by the party or the insider.
Article
23 In order to clarify the circumstances
of a case, the commodity inspection certificates and documents,
seals/stamps, marks, or sealings which are suspected to be falsified,
remade, illegally used, traded or erased/altered, may be temporarily
seized.
Article
24 For those who violated the commodity
inspection regulations and rules, if the circumstances are obviously
minor, and they can positively recognize their mistakes, timely
correct the acts of violation of law, minimize the dangerous consequences
caused by acts violating the law, or coordinate the commodity
inspection authorities to investigate or handle the case, and
demonstrate meritorious service, a mitigated punishment may be
given to them.
If
the mitigated punishment involves a penalty of fine, the amount
of such fine shall not be less than the specified lower limit
of the amount which is a fine imposed on acts of violation of
law.
Article
25 For those who violate the commodity
inspection regulations and rules, if the circumstances are serious,
or for those who commit repeated acts of violation of law, cause
serious dangerous consequences or obstruct the personnel in carrying
out their inspection duties according to law, or intentionally
transfer, cancel, destroy eridence or the relevant materials,
and cancel the facts of violation of law, a heavier punishment
shall be given to them.
If
the heavier punishment involves a penalty of fine, the amount
of such fine shall not be higher than specified upper limit of
the amount which is a fine imposed on acts of violation of law.
Article
26 For a case which has been filed under
investigation, the acts of violation of the commodity inspection
regulations and rules are clear in fact, the evidence reliable
and complete, the punishment shall be given according to law and
the punishment decision shall be made respectively.
The
punishment decision shall be made by the legal representative
of the commodity inspection authorities.
Article
27 The punishment decision of commodity
inspection shall contain the following contents:
1.
The name, sex, working units or address of the personnel punished,
or the name, address of the units punished, and the name and occupation
of its legal representative;
2.
The major facts of violation of law;
3.
The basis of punishment;
4.
The punishment decision;
5.
The period of time limit for executing punishment;
6.
In case the personnel punished does not agree with the punishment,
the period of time limit for application for reconsideration and
the name and the name and address of reconsideration organ;
7.
The name of the commodity inspection authorities which made the
punishment decision;
8.
The date for imposing the punishment.
The
punishment decision shall contain the stamp of the commodity inspection
authorities which have given the punishment decision.
Article
28 The punishment decision made by the
commodity inspection authorities may be directly sent to the party
for a signed receipt, or by post.
Article
29 In case the punishment decision has
been sent, a service certificate shall be made for return. The
addressee shall record on the service certificate, the date of
service, and sign his name or place upon the service certificate.
The
date indicated on receipt of the service certificate shall be
regarded as the date of service.
In
case the punishment decision is sent by post, the date indicated
on the registration receipt of the post office shall be the date
of service.
Article
30 In case the person punished refuses
to receive the punishment decision, the service person shall record
in the certificate of service the particulars of refusal, and
the date of service refusal. The service certificate shall be
signed or sealed by the service person and the witnesses. Then,
the punishment decision shall be left at the addressee's residence,
the service shall be deemed as completed.
Article
31 The party punished shall pay the fine
within 10 days upon receipt of the punishment decision.
In
case the party punished fail to pay the fine within the specified
time limit, the commodity inspection authorities which have made
the punishment decision, besides order the party to pay the fine
within the time limit, shall collect 30% surcharge for overdue
payment per day, since the date for collecting the surcharge for
overdue payment.
The
fine imposed shall be turned over the state treasury.
Article
32 In case a party does not agree with
the penalty imposed by the commodity inspection authorities, it
may, within 30 days after it receives the punishment decision,
apply to the commodity inspection authorities which have made
the punishment decision, or the higher commodity inspection authorities
or even to the State Administration of Commodity Inspection.
If
the party still disagrees with the decision of reconsideration,
it may bring a suit before the people's court within 30 days after
the date it receives the decision of reconsideration.
During
the period for reconsideration and procedural activities, the
execution of the original punishment decision shall not be terminated.
Unless otherwise specified in laws or regulations and rules, the
execution of the original punishment decision shall be executed
in accordance with the provision specified in laws, regulations
and rules above-mentioned.
If
a party neither applies for reconsideration nor brings a suit,
and fails to execute the punishment decision within the specified
period, the commodity inspection authorities which have made the
punishment decision shall appeal to the people's court for compulsory
execution.
Article
33 The personnel responsible for investigating
the case, upon the conclusion of the case, shall timely place
the materials of the case on file.
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Chapter
V Supplementary Provisions
Article
34 As to the functionaries of the commodity
inspection authorities who abuse their power, practice graft or
embezzlement, cause the party heavy losses by failing to perform
their duties in undertaking punishment work according to law,
the administrative punishment shall be given to them by the commodity
inspection authorities in the place where they are working or
by the higher commodity inspection authorities. If the circumstances
are serious, they shall be prosecuted according to the Criminal
Law.
Article
35 The State Administration of Commodity
Inspection shall be responsible for the interpretation of these
Provisions.
Article
36 These Provisions shall go into effect
as of May 1, 1995.
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