ISSUING AUTHORITY:

The State Administration for Market Regulation

DATE OF ISSUANCE:

October 10, 2022

EFFECTIVE DATE:

October 10, 2022

On October 10, 2022, the State Administration for Market Regulation (SAMR) issued the Guidelines on Regulating Administrative Penalty Discretion of Market Supervision and Management (the “Guidelines”).

In order to implement the newly revised the Law of the People's Republic of China on Administrative Penalties, to further standardize the discretion of administrative penalties, and to promote the market supervision departments to strictly standardize fair and civilized law enforcement, SAMR issued the Guidelines on October 10, 2022.

According to Article 3 of the Guidelines, market regulatory authorities shall adhere to the following principles when exercising the discretionary power of administrative punishment: (1) the principle of legality; (2) the principle of equivalence to the fact, nature, circumstances and degree of social harm of the illegal act; (3) the principle of fairness and justice; (4) the principle of combining punishment with education; (5) the principle of comprehensive discretion (taking into account the circumstances of individual cases, regional economic and social development, subjective and objective conditions of the parties and other relevant factors).

The Guidelines set out the followings in standardizing the exercise of the discretionary power of administrative punishment and promoting the strict standardization of fair and civilized law enforcement:

First, the rule of fairness and justice shall be added to the basic principles for exercising the discretionary power of administrative punishment, so as to prevent the occurrence of abnormal punishments and different punishments for same types of cases, and to stabilize market expectations.

Second, in view of the obvious improper and unfair application of the basis of administrative penalty discretion in individual cases, certain procedures are added to adjust the administrative penalty to protect the interests of both market players and individuals to the greatest extent.

Third, if it is clear that administrative punishment needs to be mitigated below the type or range of statutory punishment, strict evaluation shall be carried out to avoid the abuse of discretionary power.  

Fourth, while emphasizing that the market supervision department shall take laws, regulations and rules as the basis for implementing administrative penalties, there is a benchmark for the discretion of administrative penalties, and the application of such benchmark for the discretion of administrative penalties shall be clarified in the administrative law enforcement decision.

The Guidelines became effective on October 10, 2022.

Reference:

市场监督管理总局印发《关于规范市场监督管理行政处罚裁量权的指导意见》的通知