Shanghai Releases the First Cross-department List of Minor Violations against Laws and Regulations being Exempt from Punishment
at the Provincial Level in China
On 18 March, Shanghai Bureau of Justice, Administration for Market Regulations of Shanghai and Emergency Management Agency of Shanghai held a press conference and presented relevant information about A List of Minor Violations against Laws and Regulations being Exempt from Punishment in the Market (hereinafter referred to as “A List of Exemptions of from Punishment”) which was jointly promulgated by these three departments lately. In accordance with the provisions of A List of Exemptions from Punishment, 34 business operations that the main market body commits in minor violations against laws and regulations will be exempt from administrative punishment under special circumstances as provided by laws, which involves multiple departments of administrative law enforcement such as market supervision (i.e. industry and commerce, quality control, technical supervision and food safety) and fire control, etc. As reported , it is first cross-department list of exemptions of minor illegal acts from punishment at the provincial level in China, and it is an important measure that Shanghai takes to thoroughly carry out and implement the guiding principles reflected by the important speech delivered by General Secretary Xi Jinping when he visited Shanghai, to put the overall scheme of The Implementation Schedule for Further Optimization of Business Environment in Shanghai into practice, and strive to create a better business environment for enterprises, and Shanghai will provide all kinds of enterprises, especially middle and small-sized enterprises, new forms of industry and innovative enterprises, with more relaxed institutional environment in the primary stage of their development.
Luo Peixin, Deputy Chief of Shanghai Bureau of Justice, Du Guigen, Chief Economist of Administration for Market Regulation of Shanghai, and Li Caiyun, Chief Engineer of Emergency Management Agency of Shanghai attended the press conference, presented relevant information and answered questions of journalists.
Original Purpose: Let enterprises feel “mild law enforcement”
To optimize the business environment, it is important to improve the quality of system establishment. Through preliminary investigation and research, Shanghai Bureau of Justice found that most of main bodies that commit minor illegal acts are middle and small-sized enterprises and innovative enterprises, and they are mainly lately-established enterprises. They don’t have strong consciousness and capability of compliance, and in most cases, these first offenders have just made honest mistakes, and once they are punished, their future operation and development will be greatly hampered. As for minor illegal acts, many front-line administrative law enforcement officers would not or dare not to exempt offenders from punishment. In the absence of definitive legal basis, on the one hand, law enforcement officers will be confused by the question of “what the so-called minor illegal acts exactly refer to”; on the other hand, the administrative departments are afraid that they would be labeled as “administrative omission’ if they leave them unpunished.
To actually solve these realistic problems and put the spirit of “actively explore inclusive and prudential regulation” proposed in The Implementation Schedule for Further Optimization of Business Environment in Shanghai into practice, Shanghai Bureau of Justice, together with the Administration for Market Regulation of Shanghai and Emergency Management Agency of Shanghai, solicited opinions from enterprises by investigating and surveying enterprises in Changning district, having interviews and informal discussions with them. They try to understand the needs of enterprises through face-to-face talks, and also listen to the views of all sides, perform repeated research and study to solve critical issues such as the standard and scope of business operators who committed minor violations against laws and regulations. Finally, by carefully sorting out the general provisions of “no administrative punishment is made” stipulated in The Law of the People's Republic of China on Administrative Penalty and relevant provisions of nearly 20 special regulations, they performed more refined classifications of illegal acts, and then drafted A List of Exemptions from Punishment which is designed to provide the law enforcement officers with guidance and references as to the acts that may be exempt from punishment, so as to improve the effectiveness of law enforcement, effectively invigorate the market and let enterprises feel “mild law enforcement”.
Basic principle: “inclusive and prudential”
When drafting the regulations, Shanghai Bureau of Justice, Administration for Market Regulation of Shanghai and Emergency Management Agency of Shanghai always adhere to the basic principle of being inclusive and prudential. On the one hand, they endeavor to specify and standardize the illegal acts with minor adverse effects that may be exempt from punishment in accordance with the existing legal regulations; on the other hand, they try to prevent the enterprises from making use of A List of Exemptions from Punishment to escape punishment. After careful study and consideration, 34 minor illegal acts in the market included in A List of Exemptions from Punishment are strictly defined, in which 28 ones are within the responsibility of Administration for Market Regulation of Shanghai, which fall into sectors such as industry and commerce, quality-control and food safety, etc.; 6 ones are within the responsibility of the Emergency Management Agency of Shanghai, most of which are fire control-related. They can be further divided into two categories according to the basis of administrative punishment exempted.
Category One includes illegal acts that can be exempt from administrative punishment in accordance with Paragraph 2 of Article 27 of The Law of the People's Republic of China on Administrative Penalty, that is, where a person commits a minor illegal act, promptly puts it right and causes no harmful consequences, no administrative penalty shall be imposed on him, and there are 26 such illegal acts. For example, an enterprise violates the provision of Article 12 of The Advertising Law of the People's Republic of China, that is, if an advertisement involves patented products or patented methods without indicating the patent number or patent category, while there is legal and effective patent certificate, and the offender promptly puts it right and causes no harmful consequences. Another example is that, an enterprise violates Article 28 of The Fire-Control Law of the People's Republic of China, that is, for those who occupy, obstruct or block the evacuation exits and emergency exits, if there is less than two exits (two exits are included) are occupied, obstructed or blocked, and the offender restores it to its original condition on the spot and causes no harmful consequences.
Category Two includes 8 illegal acts that can be exempt from administrative punishment in accordance with relevant provisions of laws and regulations of special domains. For example, an enterprise violates the provision of Article 29 of Regulations on the Administration of Company Registration, that is, the company fails to register the change in the domicile by law, while it is able to register such a change in time after being ordered to apply for the registration within a time limit.
At the same time, for the acts closely related to people’s life, health and property safety such as food safety, fire control, etc., in the principal of prudence, it is clearly provided by A List of Exemptions from Punishment that 4 illegal acts can be exempt from punishment if the offender commits such an act for the first time, and such an act is corrected promptly and has not caused any consequences; the adverse effects of the illegal acts that can be exempt from punishment shall be minor, and the offender is able to rectify it on the spot or restore it to its original condition immediately, without causing harmful consequences. Nevertheless, it is provided that five kinds of inflammable, explosive and other dangerous articles do not apply to the crowded places or places where inflammable, explosive and other dangerous articles are produced, stored and operated.
In the future: put the precautions first and combine education with punishment
The value of administrative enforcement of law doesn’t lie in nothing but punishment; rather, it is intended for the prevention of illegal acts. For this reason, it is provided by A List of Exemptions from Punishment that, for those illegal acts exempt from administrative punishment, besides ordering the offenders to correct such acts, the law-enforcing department should also give them education in time and make sure that the operators engage in business activities in compliance with laws and regulations and the administrative counterparts develop the consciousness of observing laws by providing them with education, supervision and consultancy , in case they commit such illegal acts once again in the future, or even result in major crimes. The aim is to integrate the law effect with the social effect.
After A List of Exemptions from Punishment is introduced, the Administration for Market Regulation of Shanghai and the Emergency Management Agency of Shanghai will lose no time to implement it and sum up the experience through practices. Shanghai Bureau of Justice will provide support and supervision in time. Besides making sure that A List of Exemptions from Punishment are fully and effectively implemented, with joint efforts, it is possible that, these departments will further introduce version 2.0 and 3.0 as the circumstances may require in the future.