Notice of Beijing Municipal Market Supervision Administration on Printing and Distributing the List of Fault Tolerance and Error Correction for Minor Violations (Second Edition)

Jing Shi Jian Fa [2023] No.62

Municipal Market Supervision and Law Enforcement Corps, District Market Supervision Bureau, Beijing Economic and Technological Development Zone Bureau of Commerce and Finance, Comprehensive Law Enforcement Bureau, Fangshan District Yanshan Market Supervision Branch, Municipal Bureau Airport Branch, various offices of Municipal Bureau organs, and various institutions:

　　In order to further implement the "Implementation Outline for the Construction of a Government under the Rule of Law (2021-2025)", realize the unity of political, legal and social effects of law enforcement, and continuously optimize the business environment, according to the Administrative Punishment Law of the People’s Republic of China, the Regulations of Beijing Municipality on Optimizing the Business Environment, and the Provisions on Administrative Punishment Procedures for Market Supervision and Management, the "Error-tolerant and Error-correcting List of Minor Violations of Beijing Municipal Market Supervision Administration (Second Edition)" (below) is formulated.

　　I. Basic principles

　　(1) The principle of legal administration. Adhere to supervision according to law, ensure that law enforcement is well-founded and the procedures are legal, and the results are in compliance with relevant laws and regulations. Fault-tolerant correction of minor violations and strengthening law enforcement supervision in key areas are both important contents of legal supervision and the need to achieve fair supervision, and both cannot be neglected.

　　(2) The principle of reasonable administration. Based on the facts, the nature, circumstances and social harm of the illegal act are comprehensively considered, so that the penalty is equivalent. If the illegal act is minor and corrected in time, and no harmful consequences are caused, no administrative punishment shall be imposed; Administrative punishment may not be imposed on those who violate the law for the first time and have minor harmful consequences and correct them in time.

　　(3) The principle of combining punishment with education. If no administrative punishment is given to minor violations, persuasion and education, persuasion and demonstration, warnings and interviews should be widely used to educate, guide and urge market participants to carry out production and business activities in accordance with the law. For those who refuse to correct or commit crimes again after correction, they shall be punished according to law in combination with the illegal circumstances and the degree of harm, so as to combine leniency with severity, ensure law enforcement without losing strength and highlight the temperature.

　　(4) The principle of social co-governance. Give full play to the role of industry associations, strengthen industry norms, urge market players to strengthen self-discipline, and form a good atmosphere of co-governance with government supervision, industry self-discipline and social participation.

　　Second, the applicable conditions and criteria

　　(1) Applicable conditions

　　According to the first paragraph of Article 33 of the Administrative Punishment Law of the People’s Republic of China, if the illegal act is minor and corrected in time, and no harmful consequences are caused, no administrative punishment will be imposed; Those who violate the law for the first time and have minor harmful consequences and make corrections in time may not be given administrative punishment.

　　(2) Criteria for judging

　　For "minor violations", it should be comprehensively judged by combining the subjective fault of the parties, the amount or amount of property involved, the social harmfulness of the violations, the frequency and duration of the violations, the scope or objects affected by the violations, and the investigation and punishment of the same kind of violations committed by the parties by the administrative organs in a certain period of time.

　　For the "first violation of the law", it refers to the first violation of the law by asking the parties, inquiring about the national enterprise credit information publicity system and the comprehensive law enforcement case handling platform, etc., and no illegal acts of the same nature are found in the parties within two years. Where there are special provisions in the List, those provisions shall prevail.

　　For "no harmful consequences" and "slight harmful consequences", we can comprehensively consider the damage or influence degree of the illegal behavior of the parties to social public interests, social production and life order, administrative order, and the legitimate rights and interests of citizens, legal persons and other organizations, including the time, cost and feasibility of reducing or eliminating the related damage or influence. The degree of damage or influence can be comprehensively judged from the duration of illegal acts, illegal gains, personal injuries and property losses caused, the degree of disturbance to market order and the scope of influence. If the illegal act does not cause personal injury or property loss to the victim, and there is no illegal income, it can be considered as having no harmful consequences; If the victim suffers minor personal injury or property loss, and the amount of illegal income is small, and the harmful consequences have been eliminated or mitigated, it can be considered that the harmful consequences are minor. If there is no victim, the illegal act lasts for a short time, has not caused adverse social impact, and has no illegal income, it can be considered as having no harmful consequences; If the illegal act lasts for a short time, causing a slight social impact, and the amount of illegal income is small, and the parties take timely measures to eliminate or alleviate the social impact, it can be considered that the harmful consequences are minor.

　　For "timely correction", we can comprehensively consider the factors such as the parties taking the initiative to correct the illegal act and eliminating the harmful consequences (related effects) caused by the illegal act, or correcting it and eliminating the harmful consequences (related effects) caused by the illegal act according to the time and requirements stipulated by the administrative organ.

　　III. Applicable procedures

　　After discovering the clues of illegal acts, the case-handling unit shall carry out verification in accordance with the Provisions on Administrative Punishment Procedures of Market Supervision and Management.

　　(1) In the pre-filing verification stage, if the case-handling unit meets the circumstances listed in Article 20 of the Provisions on Administrative Punishment Procedures for Market Supervision and Management after finding out the facts, it may not file a case, but it shall take appropriate forms to urge the parties to make rectification and education, and shall issue a notice to order correction if it is necessary to order correction, and may actively guide the parties to correct illegal acts by comprehensively using administrative guidance methods such as administrative counseling, administrative tips, administrative warnings, administrative interviews and administrative demonstrations. The case handling unit shall fill in the approval form for not filing a case, clarify the verification situation and the specific reasons for not applying the List, and report it to the person in charge of the market supervision department for approval.

　　(II) After filing the case, if the case-handling unit finds that the illegal acts of the parties concerned meet the applicable conditions for not granting administrative punishment, it shall write a report on the end of the case investigation, fill in the approval form of the administrative handling decision, clarify the investigation situation and the specific reasons for not granting administrative punishment, and issue a "Decision on Not Granting Administrative Punishment" after being audited and reported to the person in charge of the market supervision department for approval. After the case is closed, it shall be filed for future reference in accordance with the provisions of Article 78 of the Regulations on Administrative Punishment Procedures for Market Supervision and Management.

　　For cases that are in the list but are determined not to be subject to administrative punishment after investigation and verification, the case-handling unit shall clarify the specific reasons for not applying not to be subject to administrative punishment in the case filing approval form, the case investigation conclusion report and the administrative handling decision approval form.

　　Iv. applicable rules

　　The List is the specific specification of the Provisions on the Application of Administrative Punishment Discretion of Beijing Municipal Market Supervision Administration, and together with the Discretionary Benchmark Table of Administrative Punishment of Beijing Municipal Market Supervision Administration, it constitutes the discretionary benchmark system of administrative punishment of Beijing Municipal Market Supervision.

　　(a) for the illegal acts in the List, the principle of meeting the applicable conditions should be applied; For cases that are in the List but are found not to be exempted from administrative punishment after investigation and verification, and are in line with the situation of mitigating administrative punishment, it is decided to mitigate administrative punishment according to law.

　　(2) For other illegal acts not listed in the List, if it is determined after verification that the nature, circumstances and social harm of the illegal acts of the parties concerned are in line with the situation of not granting administrative punishment or mitigating administrative punishment, it shall be decided not to grant administrative punishment or mitigating administrative punishment according to law.

　　(III) For similar cases that are mitigated according to the same clause, each district bureau shall unify the punishment scale in combination with the actual situation of the jurisdiction. If multiple districts are involved, the municipal bureau shall make overall consideration of regional differences, strengthen guidance based on the principle of fairness and justice, and avoid excessive punishment and adverse social impact.

　　V. Job Requirements

　　(a) actively organize the implementation. Market supervision and management departments at all levels should actively apply the list in accordance with the principle of "exhaustion". When investigating and dealing with illegal acts listed in the List, they should make a decision based on factors such as illegal facts, nature, plot and social harm.

　　(2) Encourage exploration and innovation. Market supervision and management departments at all levels should stick to the bottom line of quality and safety for new technologies, new industries, new formats, new models and other fields, leave enough room for development, and vigorously promote the system of fault tolerance and error correction for minor violations.

　　(3) Strengthen guidance and supervision. Strengthen guidance on the cases where the List is not subject to administrative punishment through spot check of files and administrative reconsideration, and supervise law enforcement. If the facts are unclear or the procedures are illegal, it shall be corrected, and it is necessary to pursue responsibility and accountability, and it shall be handled according to relevant regulations.

　　(4) Strengthen statistical analysis. Market supervision and management departments at all levels should timely, accurately and completely input the cases applying the List into the comprehensive law enforcement case handling platform, and strengthen the statistical analysis of the cases applying the List. At the same time, pay attention to collecting and summarizing the problems found in the application of the List, the feedback from market participants and typical cases. According to the law enforcement practice, the Municipal Bureau will dynamically improve the scope and conditions of application of the List.

　　VI. Others

　　This Notice shall come into force as of the date of promulgation, and the Notice of Beijing Municipal Bureau of Market Supervision on Printing and Distributing the List of Fault Tolerance and Error Correction for Minor Violations (J.J.F. [2020] No.99) shall be abolished at the same time.

Beijing Municipal Market Supervision Administration　　　　

August 22, 2023