Announcement of the State Administration for Market Regulation on Publicly Soliciting Opinions on the”Administrative Measures for the List of Seriously Illegal and Untrustworthy Enterprises (Revised Draft for Solicitation of Comments)”
By: Date: 2021-02-11 Categories: authoritativerelease Tags: ,
   In order to further deepen the construction of the credit system of market entities, the State Administration of Market Supervision has drafted the”Administrative Measures for the List of Seriously Violating and Untrustworthy Enterprises (Revised Draft for Solicitation of Comments)”, which is now available to the public Open for comments. The public can put forward opinions through the following channels and methods:

  1. Log in to the website of the State Administration for Market Regulation (URL:http://www.samr.gov.cn) and enter the”Interaction” column on the homepage Soliciting surveys” for comments.

  2. Send comments by letter to:Credit Supervision Department, State Administration of Market Supervision, No. 8 Sanlihe East Road, Xicheng District, Beijing (Postal Code:100820)

  3. Send comments to:[email protected]

  The deadline for feedback is March 12, 2021.

  Attachment:”Administrative Measures for the List of Seriously Illegal and Untrustworthy Enterprises (Revised Draft for Solicitation of Comments)” and drafting instructions

  Market Supervision Administration

   February 10, 2021

  Attachment download


  Management Measures for the List of Seriously Illegal and Untrustworthy Enterprises (Revised Draft for Solicitation of Comments)

   Chapter One General Provisions

   Article 1 In order to standardize the management of the list of companies that are seriously illegal and untrustworthy by the market supervision and management department, strengthen credit supervision, expand social supervision, and promote integrity and self-discipline, it is formulated in accordance with relevant laws and regulations This approach.

   Article 2 The term “seriously illegal and untrustworthy enterprises” as used in these Measures refers to violations of market supervision and management laws and administrative regulations, which have been subject to administrative penalties and administrative rulings by the market supervision and management department. And enterprises with bad nature, serious circumstances, and greater social harm.

   The management of the list of severely illegal and untrustworthy enterprises referred to in these Measures refers to the fact that the market supervision and management department includes or removes the parties from the list of severely illegal and untrustworthy enterprises, and implements credit constraints and joint Punishment and credit restoration, and publicized through the national enterprise credit information publicity system.

   Chapter 2 Jurisdiction

  Article 3 The State Administration for Market Regulation is responsible for organizing and guiding the management of the list of severely illegal and untrustworthy enterprises nationwide.

   The market supervision and management department at or above the county level shall be responsible for the management of the list of seriously illegal and untrustworthy enterprises in accordance with these regulations.

   The management of the list of serious illegal and untrustworthy enterprises shall be managed by the market supervision and management department of the registration place.

   where the illegal act occurred is inconsistent with the place of registration, the market supervision and management department that made the administrative decision shall be included in the list of serious illegal and untrustworthy enterprises. Within 5 working days from the day when the listing decision is made, the information on the list of seriously illegal and untrustworthy enterprises shall be exchanged to the market supervision and management department of the registration place. The market supervision and administration department of the registration place shall record it under the name of the enterprise within 5 working days and publish it through the national enterprise credit information publicity system.

   Article 4 If two or more market supervision and management departments dispute the jurisdiction of the list of seriously illegal and untrustworthy enterprises, they shall within 5 working days from the date of the dispute Resolve through negotiation; if negotiation fails, report to the common higher-level market supervision and management department to designate jurisdiction.

   The upper-level market supervision and management department may directly govern the management of the list of seriously illegal and untrustworthy enterprises under the jurisdiction of the lower-level market supervision and management department if it deems it necessary. If the lower-level market supervision and management department believes that the management of the list of seriously illegal and untrustworthy enterprises under its jurisdiction is difficult to handle due to special reasons, it may report to the higher-level market supervision and management department for jurisdiction or designate jurisdiction. The higher-level market supervision and management department shall determine the competent department within 7 working days from the date of receipt of the submitted materials.

   Chapter III Inclusion Circumstances

   Article 5 The party who violates market supervision and management laws and regulations and has one of the following situations that endanger the health and safety of the people is subject to administrative penalties by the market supervision and management department, and If the nature is bad, the circumstances are serious, and the social harm is greater, it will be included in the list of serious illegal and untrustworthy enterprises:

   (1) Use non-food raw materials, recycled food, raw materials beyond the shelf life to produce food, or add substances harmful to human health in food; production and operation fail to comply with regulations Registered health food, formula food for special medical purposes, and infant formula milk powder.

   (2) Production and sales of meat or meat products that have not been quarantined in accordance with regulations or have failed quarantine; production and sales have died of illness, poisoning, and the cause of death is unknown Poultry, livestock, beasts, aquatic animal meat and their products; illegal procurement and processing of wild animals.

   (3) Illegal production and sale of drugs (vaccine) with special regulatory requirements in the country; production, import, and sales of drugs (vaccine) that have not obtained drug approval documents .

  (4) Production and sale of unregistered Class II and Class III medical devices.

   (5) Production and sale of infant and children’s cosmetics that have illegally added substances that may harm human health.

  (6) Selling, renting, or using special equipment that has not obtained a production license, has been explicitly eliminated by the state, has been scrapped, has not been inspected, or is unqualified; It is filled with mobile pressure vessels and gas cylinders that meet the requirements of safety technical specifications.

   (7) Exceeding the permitted scope for inspection, testing, or certification; issuing false or seriously inaccurate inspection, testing, certification, or accreditation conclusions; without certification Products listed in the compulsory product certification catalog are used for ex-factory, sales, import or other business activities.

   (8) Producing and selling counterfeit and shoddy products.

  Article 6 The party who violates market supervision and management laws and regulations, commits one of the following acts that disrupt fair market competition order, and is subject to administrative penalties and administrative rulings by the market supervision and management department, and If the nature is bad, the circumstances are serious, and the social harm is greater, it will be included in the list of serious illegal and untrustworthy enterprises:

   (1) After the pre-paid fees, the premises are closed and closed or relocated, and the goods or services are not provided in accordance with the agreement, the residence and operation registered in the enterprise by the market supervision and management department 30 days after the site and the market supervision and management department announced on the website, they still cannot get in touch, infringing on the legitimate rights and interests of consumers.

   (2) Organizing, planning, or providing convenient conditions for MLM.

   (3) It is decided to permanently stop accepting trademark agency business; malicious trademark applications; intentional infringement of intellectual property rights.

   (4) Engaging in unlicensed and unlicensed production and operation; administrative licenses, filing, qualifications, and qualifications have been revoked or revoked.

   Article 7 The party violates market supervision and management laws and regulations, and has one of the following circumstances for refusing to perform legal obligations, and is subject to administrative penalties by the market supervision and management department, and the nature is bad and the circumstances are Serious and socially harmful ones will be included in the list of serious illegal and untrustworthy enterprises:

   (1) It is confirmed that there are hidden dangers or defects that may damage the health and life safety of consumers, and the production, sales or import of products has not been stopped, and the recall is still Refusing to recall, in violation of the obligation to recall.

   (2) An e-commerce platform operator has not fulfilled his obligation to protect consumers and refuses to make corrections after being ordered to make corrections.

  Article 8 Other circumstances that violate market supervision and management laws and administrative regulations and are subject to administrative penalties by the market supervision and management department, and are of bad nature, serious circumstances, and greater social harm , Included in the list of serious illegal and untrustworthy enterprises.

   Chapter 4 Included in the removal program

  Article 9 Before the market supervision and management department makes a decision to be included in the list of severely illegal and untrustworthy enterprises, it shall serve the party concerned with a notice to be included in the list of severely illegal and untrustworthy enterprises. Inform the facts, reasons, and basis for the list of companies that intend to be included in the list of serious illegal and untrustworthy enterprises.

  The party concerned may raise an objection to the market supervision and management department within 10 working days from the date of receipt of the notice.

   If there is no objection after the expiration of the term, the market supervision and management department shall make a decision to be included in the list of severely illegal and untrustworthy enterprises within 5 working days. If an objection is raised during the objection period, the market supervision and management department shall conduct verification and may hold a hearing when necessary. A decision on listing or not to be listed shall be made within 5 working days from the date of verification, and the decision shall be delivered to the parties.

   The listing decision should include the name (name), unified social credit code (identity document type, identity document number), listing date, listing reasons, listing The basis, the time limit and means of rights relief, and the decision-making authority.

   Article 10 If the party concerned is included in the list of seriously illegal and untrustworthy enterprises for three years, the market supervision and management department of the registration place shall remove the list of seriously illegal and untrustworthy enterprises. And stop publicizing relevant information through the national enterprise credit information publicity system, and lift relevant management measures.

   has been included in the list of severely illegal and untrustworthy enterprises due to being included in the list of abnormal operations for three years, and the party concerned applies for removal after fulfilling the obligation of publicity, the market supervision and management department of the registration place Remove them from the list of companies with serious violations of law and trust in a timely manner. Where laws and administrative regulations provide otherwise, those provisions shall prevail.

   Chapter 5 Management Measures

  Article 11 The market supervision and management department shall implement the following management measures on the parties included in the list of severely illegal and untrustworthy enterprises:

   (1) As an important consideration when reviewing registration, filing and administrative licenses, qualifications, and qualifications. In accordance with relevant laws and administrative regulations, implement corresponding qualification restrictions or industry prohibition measures.

  (2) is listed as the key supervision object.

   (3) Convenience measures based on corporate integrity, such as notifications and commitments, shall not be applied.

   (4) No honorary titles, commendations and rewards shall be granted to market supervision and management departments.

  (5) It shall not be entrusted to undertake government procurement projects.

  (6) Other management measures required by laws and administrative regulations.

  Article 12 The market supervision and management department shall interconnect and share the list of severely illegal and untrustworthy enterprises with other relevant departments, establish and improve information inquiry, application and feedback mechanisms, and promote Share sharing, and implement joint punishments in accordance with relevant laws and administrative regulations.

   Chapter 6 Credit Repair

   Article 13 The parties who have been included in the list of severely illegal and untrustworthy enterprises for one year, after fulfilling their legal obligations and rectifying and correcting errors, may follow the provisions of these Measures The procedure applies to the market supervision and management department that made the decision to remove the list of companies with serious violations of law and trust, and implement credit restoration.

   The decision to approve credit restoration made by market supervision and management departments at all levels shall be reported to the market supervision and management department at the next higher level for approval.

  Article 14 The procedures for implementing credit restoration include:

   (1) Application. The party concerned shall file an application for credit restoration, explain the facts and reasons, and attach relevant evidence materials such as fulfilling legal obligations, rectifying and correcting errors.

   (2) Accepted. The market supervision and management department shall decide whether to accept the application within 3 working days from the date of receipt of the application. If it is accepted, a notice of acceptance shall be issued to the party concerned; if it is not accepted, a notice of non-acceptance shall be issued to the party concerned and the reasons shall be given.

   (3) Check and verify. The market supervision and management department shall, within 10 working days from the date of acceptance, adopt online inspection, written inspection, on-site inspection and other methods for inspection and verification, and require the parties to make a credit commitment. In the process of inspection and verification, the legal representative, person in charge and other personnel may be organized to participate in administrative interviews, administrative guidance or credit training. Credit training shall not charge any fees.

   (4) Make a decision. The market supervision and administration department shall, within 5 working days from the date of completion of the inspection and verification, make a decision to approve or disapprove credit restoration. If it needs to be reported to the higher-level market supervision and management department for approval, it can be extended by 5 working days. The decision should include the name (name), unified social credit code (identity document type, identity document number), date of listing, reason for listing, basis for listing, time limit and means of rights relief, and reasons for granting or not granting credit restoration And the basis and decision-making authority.

   (Five) stop publicity. The market supervision and management department shall remove the parties from the list of severely illegal and untrustworthy enterprises within 5 working days from the date of making the decision to approve credit restoration, stop publicizing relevant information through the national enterprise credit information publicity system, and remove relevant management measures.

   Article 15 If the party has one of the following circumstances, no credit restoration will be granted:

   (1) Causes serious harm to national security, public safety, and the safety of people’s lives, health and property.

   (2) has been included in the list of serious illegal and untrustworthy enterprises twice or more.

   (3) Due to violation of relevant laws and regulations, the time limit for restricted or prohibited industry access has not expired.

   Article 16 Under one of the following circumstances, the market supervision and management department that made the decision to approve credit restoration shall revoke the decision to approve credit restoration and restore it to the previous state :

  (1) Wrongly implement credit repairs for situations that do not comply with Article 13 of these Measures.

   (2) The parties deliberately concealed the true situation and resorted to fraud in the application for credit repair procedures, and the circumstances were serious.

  (3) The relevant stakeholders believe that credit restoration should not be done, and the reason for verification is valid.

   Chapter 7 Error Correction, Relief and Supervision Procedures

   Article 17 If the administrative decision based on the list of severely illegal and untrustworthy enterprises is revoked, the market supervision and management department shall revoke the party’s inclusion in the severely illegal and untrustworthy The list of enterprises was decided, and the parties concerned were promptly removed from the list of enterprises with serious violations of law and dishonesty.

  Article 18 The parties concerned may be included in or removed from the list of severely illegal and untrustworthy enterprises and the decision not to grant credit restoration may apply for administrative reconsideration or file an administrative lawsuit in accordance with the law.

   Article 19 If the market supervision and management department fails to perform its duties in accordance with the relevant provisions of these Measures, the higher-level market supervision and management department shall order it to make corrections; if the circumstances are serious, it shall be liable The responsible persons in charge and other directly responsible persons shall be dealt with in accordance with relevant regulations.

   Chapter 8 Supplementary Provisions

   Article 20 The service and hearing procedures stipulated in these Measures shall be implemented in accordance with the relevant regulations of the State Administration for Market Regulation.

   Article 21:These Measures shall apply to the management of the list of enterprises with serious violations of laws by the drug supervision and management department and the intellectual property management department.

   Article 22 The format of management documents for the list of severely illegal and untrustworthy enterprises shall be uniformly formulated by the State Administration for Market Regulation.

   Article 23 These regulations are interpreted by the State Administration for Market Regulation.

   Article 24 These Measures shall come into force on the day of 2021. The former State Administration of Quality Supervision, Inspection and Quarantine”Guiding Opinions on Strengthening the Management of Serious Quality Untrustworthy Enterprises” (GuoQianQiQi [2015] No. 289) on June 26, 2015, and the original State Administration for Industry and Commerce Order on December 30, 2015 The”Interim Measures for the Administration of the List of Seriously Illegal and Untrustworthy Enterprises” promulgated by No. 83 shall be repealed at the same time. If the provisions on the management of the list of severely illegal and untrustworthy companies in the”Administrative Measures on Patent Agency” promulgated by Order No. 6 of the State Administration for Market Regulation on May 1, 2019, are inconsistent with these Measures, these Measures shall be implemented.

   Drafting instructions on the”Management Measures for the List of Seriously Illegal and Untrustworthy Enterprises (Revised Draft for Solicitation of Comments)”< /span>
   In order to further deepen the construction of the credit system of market entities, since 2019, the State Administration of Market Supervision has been based on comprehensively deepening the reform of “delegation, regulation, and service” and transforming government functions. It is necessary to work closely with the overall background of the reform of the market supervision department, closely integrate the reality of credit supervision, and on the basis of extensive consultations, the former State Administration for Industry and Commerce promulgated and implemented the Interim Measures for the Administration of the List of Seriously Violating and Untrustworthy Enterprises (hereinafter referred to as the Measures)”) was revised to form the”Administrative Measures for the List of Seriously Illegal and Untrustworthy Enterprises (Revised Draft for Solicitation of Comments)” (hereinafter referred to as”Measures (Revised Draft for Solicitation of Comments)”). The revision is now explained as follows:

   1. The necessity of revision

   (1) The management of the list of severely illegal and untrustworthy enterprises is an important starting point for the credit supervision of the market supervision department.

   The management of the list of severely illegal and untrustworthy enterprises is an important part of credit supervision, an important basis for the implementation of inter-departmental joint disciplinary action, and an important part of improving market supervision efficiency means. Strengthening the management of the list of severely illegal and untrustworthy enterprises, urging untrustworthy subjects to know and fear, keep the fear, and abide by the rules, and realize the”high-hanging sword and strengthen punishment”, which is of great significance to effectively improve the efficiency of market supervision and promote the steady and orderly development of the socialist market economy .

   (2) Revising the “Measures” is an objective need to establish a standardized and unified management system for the list of companies that seriously violate the law.

   At present, the management system for serious violations and untrustworthiness of the market supervision department is scattered in the former State Administration for Industry and Commerce, the former General Administration of Quality Supervision, Inspection and Quarantine, and the State Intellectual Property Office. In the document, there are objectively inconsistencies in legal hierarchy, standards, and procedures. Credit supervision, as a basic work that runs through all business areas of market supervision, should unify the situation of serious violations and untrustworthiness in the field of market supervision, establish a standardized and unified management system for the list of serious violations and untrustworthy enterprises, and achieve the inclusion of standards, procedures, punishment for dishonesty and credit restoration Legalization, standardization and standardization will give full play to the fundamental role of credit supervision.

  (3) Amending the “Measures” is an urgent need to improve the management system of the list of seriously illegal and untrustworthy enterprises.

   With the renewal of regulatory concepts and new requirements for functional transformation, the original”Measures” showed incompatibility problems. For example, the listing situation is not comprehensive, the criteria for listing is not scientifically complete, the procedures for service notification are incomplete, improper penalties and credit restoration mechanisms are not perfect. By prudently adjusting the listing situation, scientifically standardizing listing standards, improving service and hearing procedures, and improving credit repair mechanisms, we will improve the management system for the list of seriously illegal and untrustworthy enterprises, give full play to the effectiveness of credit supervision, and further optimize the business environment.

   2. Drafting process

   Beginning in April 2019, after multiple rounds of extensive consultation with relevant departments, provinces (autonomous regions, municipalities), market supervision departments, the public, industry associations and Opinions of enterprises, comprehensive revision of the”Measures”. In July 2019, public opinions were solicited through the websites of the Ministry of Justice and the State Administration for Market Regulation. At the same time, it once again solicited opinions from the member units of the Inter-Ministry Joint Conference for the Construction of the Social Credit System and the market supervision departments of various provinces (autonomous regions and municipalities). On December 12, 2019, in accordance with the recommendations of the National Development and Reform Commission, the General Administration suspended the revision of the Measures. During the period, in-depth research and further modification and improvement were conducted on the content of the listing situation, standards, procedures, disciplinary measures, and credit restoration through subject research and seminars. On October 13, 2020, the revised”Measures” and drafting instructions were again sent to the member units of the Inter-ministerial Joint Conference on Social Credit System Construction and the market supervision departments of various provinces (autonomous regions and municipalities) for comments. In December 2020, we will once again solicit the opinions of relevant departments and bureaus of the General Administration and local market supervision departments, and hold a symposium with relevant industry associations, enterprises and experts to revise and improve the relevant provisions again.

   3. Main principles of revision

   (1) Adhere to laws and regulations. Circumstances that are listed on the list of seriously illegal and untrustworthy enterprises are, in principle, circumstances that violate market supervision laws and administrative regulations, receive administrative penalties, administrative decisions, are bad in nature, have serious circumstances, and have greater social harm. Those that lack legal and regulatory basis shall not be included in the list of companies that have seriously violated the law.

   (2) Adhere to the strictest standards. In principle, they are all cases of serious illegal and untrustworthy situations in various business areas of market supervision, and general illegal and untrustworthy situations are not included in the management of the list of serious illegal and untrustworthy enterprises.

   (3) Adhere to due process. In accordance with the relevant provisions of administrative punishment laws and regulations, the service procedures have been improved, and the hearing procedures have been added to fully protect the parties’ legal rights such as the right of objection and the right of reply.

   (4) Sound credit restoration. In accordance with the principles of combining punishment and education, and inclusive and prudent supervision, further improve the credit restoration mechanism. The parties are allowed to perform credit repairs after they have corrected serious illegal and untrustworthy behaviors, giving them opportunities to rebuild their credit and reform, and further stimulate market vitality.

   Fourth, the main content

   The”Measures (Revised Draft for Soliciting Comments)” includes 8 chapters and 24 articles.

   Chapter 1 General Provisions, mainly clarifies the legislative purpose, stipulates the basic concepts and main content.

   The second chapter of the jurisdiction part, generally in accordance with the principle of”who registers, who controls”, the market supervision departments at all levels are responsible for serious violations of laws and untrustworthiness in their jurisdictions Enterprise list management. If the place where the illegal act occurred is inconsistent with the place of registration, the market supervision department that made the administrative penalty shall be included in the list of enterprises that have seriously violated the law. At the same time, it stipulates the procedures for designated jurisdiction and jurisdiction disputes, which is conducive to the comprehensive settlement of the jurisdiction issues of various serious illegal and untrustworthy enterprises.

   Chapter 3 stipulates the circumstances for inclusion. In accordance with the principle of listing of serious illegal and untrustworthy enterprises, the listing conditions provided by the various business lines of the State Administration of Market Supervision, the State Drug Administration, and the State Intellectual Property Office have been unified and standardized, and the same or similar circumstances have been refined and integrated, and non-compliant listings have been eliminated. The principled situation is expressed in terms of fields and terms in accordance with the three situations that seriously endanger the health and life safety of the people, seriously undermine the order of fair market competition, refuse to perform legal obligations and seriously affect the credibility of administrative agencies. At the same time, the degree of untrustworthiness of the listed circumstances is balanced to ensure that the severity is basically the same.

   Chapter 4 stipulates to be included in the removal procedure. First, in order to fully protect the legal rights of the parties such as the right of objection and the right of defense, the notification procedure and hearing procedure before listing have been added. The method of service refers to the”Interim Provisions on the Procedures of Administrative Punishment for Market Supervision and Administration”, and informs the facts, reasons and basis to be included. The parties concerned may raise objections to the market supervision department within 10 working days from the date of receipt of the written decision, and may apply for a hearing if necessary. The second is to shorten the publicity period. After being included in the list of severely illegal and untrustworthy enterprises, they can be removed from the market supervision department after three years, further shortening the publicity period. At the same time, the system should be well connected and exit channels should be cleared, so as to solve the problem of the large backlog of serious illegal and untrustworthy enterprises.

   Chapter 5 provides sanctions for dishonesty. In order to effectively enhance the efficiency of credit supervision, six disciplinary measures have been stipulated in accordance with the spirit of the documents of the Party Central Committee and the State Council. The specific disciplinary measures that have been clearly stipulated by laws and regulations will not be repeated. At the same time, in order to strengthen the application and implement the disciplinary measures, it is stipulated that the list of seriously illegal and untrustworthy enterprises should be embedded in various business systems, and the inquiry and feedback mechanism should be established and improved to promote sharing.

   Chapter VI stipulates the standards, procedures, and supervision of credit restoration. One is that those who are included in the list of severely illegal and untrustworthy enterprises can apply for credit repair one year after the expiry date. This not only enables the untrustworthy parties to be vigilant, receive education, and ensure effective punishment, but also protects the parties’ credit repair rights. Second, the parties must fulfill their legal obligations and make rectifications and corrections before they can apply for removal to ensure the effectiveness of credit restoration. The third is to submit relevant certification materials when applying for removal, and after the market supervision department has checked and verified and interviewed, repairs can be made only after the approval of the market supervision department at the higher level to ensure the seriousness and authority of credit restoration. The fourth is to stipulate the provision of opinions to ensure the supervision rights of relevant stakeholders over credit restoration.

   Chapter 7 stipulates procedures for error correction, relief and supervision. Provisions are made for market supervision departments’ self-correction procedures, internal supervision procedures, as well as the parties’ reconsideration and litigation rights, to fully protect the legitimate rights and interests of the parties, and prompt the market supervision departments at all levels to carry out the management of the list of severely illegal and untrustworthy in accordance with laws and regulations.

   Chapter 8 Supplementary Provisions clarifies the implementation department and service, hearing procedures, effective time, etc. of the management of the list of severely illegal and untrustworthy enterprises.