|
Decree of the Ministry of Culture
No.40
After the deliberation and adoption at the ministerial meeting of the Ministry of Culture on October 25, 2006, the Measures concerning
the Administration of Wholesale, Retail and Lease of Audio and Video Products are hereby released, and shall enter into force as
of December 1, 2006.
The Ministry of Culture
November 6, 2006
Measures concerning the Administration of Wholesale, Retail and Lease of Audio and Video Products
Chapter I General Rules
Article 1
In order to enhance the administration of wholesale, retail and lease of audio and video products, promote the development and flourish
of the audio and video industry, enrich the cultural life of the masses and promote the construction of socialist material civilization
and spiritual civilization, these Measures are made according to the related provisions of the Regulation concerning the Administration
of Audio and Video Products.
Article 2
These Measures shall be applicable to such activities as the wholesale, retail, and lease, etc. of such audio and video products
as audio tapes, video tapes, gramophone records, compact discs and laser discs, etc. with recorded contents.
Article 3
People conducting the wholesale, retail and lease of audio and video products shall comply with the Constitution and the related
laws and regulations, insist in the orientation of serving people, socialism, and disseminate ideas, morals, scientific and technical
and cultural knowledge beneficial to economic development and social progress.
Article 4
The operation of the audio and video products are prohibited by the state if recorded with any of the following content:
(1)
the content which defies the basic principles determined in the Constitution;
(2)
the content which hurts the national unity, sovereignty or territorial integrity;
(3)
the content which divulges the state secrets, hurts national security or damages the honor or benefits of the state;
(4)
the content which incites the hatred or discrimination of the nationality, damages the solidarity of nationalities, or infringes upon
nationality customs and habits;
(5)
the content which propagates evil cult or feudalistic superstition;
(6)
the content which disturbs the public order or destroys the public stability;
(7)
the content which propagates obscenity, gambling, violence or instigates crimes;
(8)
the content which insults or slanders others, or infringes upon the lawful rights and interests of others;
(9)
the content which endangers public ethics or the excellent national cultural traditions;
(10)
any other content prohibited by any law, administrative regulation, or provision of the state.
Article 5
The Ministry of Culture shall be responsible to supervise and administrate the wholesale, retail and lease of audio and video products
nation-wide.
The cultural affairs administrative department under the local people’s government at or above the county level shall be responsible
to supervise and administrate the wholesale, retail and lease of audio and video products within its own jurisdiction.
Article 6
The state shall apply a license system in aspect of the wholesale, retail and lease of audio and video products. No entity or individual
shall get into the wholesale, retail and lease of audio and video products without permission.
The licenses or approval documents distributed according to these Measures may not be altered, resold, leased, lent, or illegally
transferred in any other form.
Article 7
The Ministry of Culture shall institute the development programming concerning the nationwide market of audio and video products,
and exert macro control over the nationwide market of audio and video products.
The cultural affairs administrative department under the people’s government of the province, autonomous region, or municipality directly
under the Central Government shall, in accordance with the development programming concerning the nationwide market of audio and
video products and the economic and social development of its own region, institute development programs concerning the market of
audio and video products of its own region, and lead healthy development of such a market.
Article 8
The entities conducting the audio and video business are encouraged and supported by the state to circulate domestic audio and video
products and to build up the issuing network and sell audio and video products in the rural areas.
Article 9
Both the cultural affairs administrative department and its functionaries must not, directly or in a disguised form, undertake the
business activities in aspect of the wholesale, retail and lease of audio and video products, or take part in the business activities
of the entities engaged in the wholesale, retail or lease of audio and video products.
Chapter II Operating Entities
Article 10
In order to apply for the establishment of an audio and video product wholesaling entity, the applicant shall report to the cultural
affairs administrative department of the people’s government of the province, autonomous region or the municipality directly under
the central government where it is located to examine and approve, and shall submit the materials as follows:
(1)
an application form including the name, address of the audio and video product wholesaling entity, the name and address of its legal
representative or the chief person in charge, and the major matters on the application;
(2)
a circular concerning the prior approval of the name, and the rules ;
(3)
the registered capital amount and its evidential documents;
(4)
certificate of the property right of the business premise or letter of leasing intent;
(5)
evidential materials concerning the identity of the legal representative or the chief person in charge;
(6)
evidential materials concerning the institutions and personnel proper to the needs of its business scope; and
(7)
other materials as stipulated by laws and administrative regulations.
The cultural affairs administrative department shall, within 30 days from receiving the application, make a decision concerning approving
the application or not. If the application is approved, a License for Operating Audio and Video Products shall be released to the
applicant, and be submitted to the Ministry of Culture for record. The applicant shall obtain the business license according to the
law in the administrative department of industry and commerce with the License for Operating Audio and Video Products; if the application
is disapproved, the reason thereof shall be stated.
Article 11
In order to apply for the establishment of an audio and video product retailing or leasing entity or where an individual applies
for the engagement of the audio and video product retailing or leasing business, the applicant shall report to the cultural affairs
administrative department of the local people’s government at the county level for examination and approval, and shall submit the
materials as follows:
(1)
an application form including the name of the retailing or leasing entity or the business name of the individual and the address,
the name and address of its legal representative or the chief person in charge, and the major matters on the application;
(2)
a circular concerning the prior approval of the name, and the rules;
(3)
certificate of the property right of the business premise or letter of leasing intent;
(4)
evidential materials concerning the identity of the legal representative or the chief person in charge; and
(5)
other materials as stipulated by laws and administrative regulations.
The cultural affairs administrative department shall, within 30 days from receiving the application, make a decision on approving
the application or not. If the application is approved, a License for Operating Audio and Video Products shall be released to the
applicant, and be reported to the cultural affairs administrative department of the local people’s government at the next higher
level for record. The applicant shall obtain the business license according to the law in the administrative department of industry
and commerce with the License for Operating Audio and Video Products; if the application is disapproved, the reason thereof shall
be stated.
An audio and video product wholesaling entity established upon approval may conduct the audio and video retailing and leasing businesses
on the business premise formerly approved for the wholesaling business.
Article 12
In accordance with the related provisions of the state, an audio and video product publishing entity may wholesale and retail the
audio and video products published by itself. If it intends to get into the business of wholesaling or retailing audio and video
products not published by itself, it shall handle the formalities of examination, approval and registration according to Articles
10 and 11 of these Measures.
Article 13
For the purpose of establishing a chained operation entity of audio and video products, the applicant shall satisfy the conditions
as follows:
(1)
having a certain name and rules;
(2)
having a certain business scope;
(3)
having at least 1 million Yuan of registered capital, or at least 5 million Yuan of registered capital if conducting nationwide chained
operations;
(4)
planning to develop 5 or more direct-operation chained stores or 10 or more chained stores of audio and video products;
(5)
having an institution and personnel fit for the needs of its business scope;
(6)
having relevant management system and computer management conditions; and
(7)
other conditions stipulated by laws and administrative regulations.
Article 14
In order to apply for the establishment of a chained operation entity of audio and video products, the applicant shall report to
the cultural affairs administrative department of the people’s government of the province, autonomous region, or the municipality
directly under the central government where it is located; the application for establishing nationwide chained operation entities
of audio and video products shall be examined and approved by the cultural affairs administrative department under the people’s government
of the province, autonomous region or municipality directly under the Central Government where the applicant’s headquarters is located
before it is submitted to the Ministry of Culture for examination and approval.
The following materials hereby shall be submitted by the applicant entity:
(1)
an application form including the name, address of the applying entity, the name and address of its legal representative or the chief
person in charge, and the major matters on the application;
(2)
a circular concerning the prior approval of the name, and the rules;
(3)
amount of the registered capital and its evidential documents;
(4)
certificate of the property right of the business premise or letter of leasing intent;
(5)
evidential materials concerning the identity of the legal representative or the chief person in charge;
(6)
information concerning the institution, distributing departments and systems of distribution management of the chained operation entity
of audio and video products;
(7)
evidential materials concerning the related computer management conditions; and
(8)
other materials as stipulated by laws and administrative regulations.
The cultural affairs administrative department shall, within 30 days from receiving the application, make a decision on approving
the application or not. If the application is approved, a License for Operating Audio and Video Products shall be released to the
applicant, who shall obtain the business license according to the law in the administrative department of industry and commerce with
the License for Operating Audio and Video Products; if the application is disapproved, the reason thereof shall be stated.
Without approval and registration, the characters of “chained operation” must not be used by anyone in the name of an entity, and
anyone may not engage in the business activities of wholesale, retail and lease of audio and video products by ways of chained operation.
Article 15
A chained operation entity of audio and video products may adopt either the pattern of direct chained operation or that of franchise
chained operation, or may operate by both ways. It shall have at least one year of experience in direct chained operation and have
the approval of the original approving department if it chooses the franchise chained operation.
Direct chained operation refers to the uniform operation which is under the direct management of the headquarters, and under which
all the chained stores are opened by the headquarters in wholly-owned form or shareholding form.
Chained operation in the form of franchise shall refer to that the chained stores are established by the headquarters through participating
in shares or, have no asset contact with the headquarters but are authorized the franchise to use the trademark, name, operational
techniques of the headquarters and to sell commodities of headquarters through signing contracts with the headquarters.
The distributing center and the direct-operation chained stores of the chained operation entities of audio and video products shall
use the shop name of their headquarters in their own names. Franchised chained stores may, also use the shop name of their headquarters
upon consent by their headquarters.
Article 16
There is no need for an audio and video chained operation entity built up upon approval to obtain a separate License for Audio and
Video Products Operation to open direct-operation chained stores or build up chained operation counters, but may, after reporting
to the cultural affairs administrative department of the county people’s government of the place where the store is to be located,
obtain the business license at the administrative department of industry and commerce in accordance with law upon the strength of
the copy of the License for Audio and Video Products Operation released by the headquarters of the chained operation entity.
Where an audio and video chained operation entity built up upon approval opens a franchise chained store, it must transact the examination
and approval formalities according to the related provisions of Article 11 of these Measures; where it has already obtained the
License for Audio and Video Products Operation, it shall transact the modification formalities according to the related provisions.
Article 17
Whoever applies for the establishment of an entity conducting the business of operating audio and video products through information
network, it shall transact the examination and approval formalities with reference to the related provisions in Article 10 of these
Measures and report the information concerning its website name or the names of the websites linked to it, its address, its email
address and other materials to the cultural affairs administrative department of the people’s government of the province, autonomous
region, or the municipality where it is located for record.
Article 18
An audio and video product wholesaling or chained operation entity may get into the operation business of audio and video products
through the information network, but it shall, before starting its operations, prepare its License for Audio and Video Products Operation,
its website name or the names of the websites linked to it, its email address, and other materials to report to the cultural affairs
administrative department under the people’s government of the province, autonomous region, or municipality directly under the Central
Government where it is located for approval.
Article 19
An applicant who applies for conducting the wholesaling, retailing or leasing business of audio and video products shall hand in
the related materials to the administrative organ in accordance with the facts and shall be responsible for the authenticity of the
application materials.
Article 20
The cultural affairs administrative department shall publicize the approval documents concerning establishing the wholesaling, retailing,
leasing or chained operation entities, or establishing the entities that may conduct the audio and video products operation through
the information network, or the individuals that may involve in the wholesaling or leasing business of audio and video products,
the public has the right to consult these documents.
Chapter III Operation and Management
Article 21
The entities or individuals that conduct the business of the wholesale, retail and lease of audio and video products shall not operate
the audio and video products as follows:
(1)
those published by an entity that does not conduct the audio and video products publication or those illegally published by an entity
that conducts the audio and video products publication;
(2)
those reproduced by an entity that does not conduct the of audio and video products reproduction or those illegally reproduced by
an entity that conducts the audio and video products reproduction;
(3)
those imported without being approved by the Ministry of Culture;
(4)
those imported for reference in research or teaching or for exhibition or display;
(5)
those that infringe upon other’s copyright; and
(6)
other illegal audio and video products.
Article 22
The entities or individuals that conduct the business to retail and lease audio and video products shall purchase audio and video
products from the audio and video product publishing and wholesaling entities for operation.
As for an audio and video product publishing or wholesaling entity wholesales audio and video products, it shall supply the consignment
voucher according to the related provisions of the state. The consignor entity or the consignee entity shall keep the consignment
vouchers and the related documentary materials for 2 years since the date of the consignment for future inspection.
When selling audio and video products, an audio and video product retailing entity or an individual involving in the business of retailing
audio and video products shall, issue an invoice with the indication of the name, price and amount of the audio and video products.
An audio and video product leasing entity or an individual conducting the business of leasing audio and video products shall register
the time, name and quantity of the leased audio and video products, etc.
Article 23
The anti-forgery marks produced under the supervision of the Ministry of Culture shall be pasted on the audio and video products
published by audio and video product publishing entities and those imported by finished audio and video product import entities.
Article 24
An audio and video product wholesaling, retailing and leasing entity or an individual conducting the business of retailing and leasing
audio and video products shall place its/his License for Audio and Video Products on a marked position in its/his business site.
A direct-operation chained store or chained operation counter shall place the copy of its License for Audio and Video Products Operation
on a marked position in its/his business site.
Article 25
An entity involving in the business to operate audio and video products through the information network shall indicate the serial
number and issuance department of the License for Audio and Video Products Operation on its website or web page. For the audio and
video products in operation, the name, publishing entity, and the audio and video products code under Chinese standards shall be
indicated. If an audio and video product is an imported one, the document number of the approval certificate for import shall be
indicated simultaneously.
Article 26
An audio and video product wholesaling or chained entity shall report the concrete address of its warehouse or distributing center
of audio and video products, the management personnel and the related contact information to the cultural affairs administrative
department which approves it for registration and record within 30 days as of the issuance date of the License for Audio and Video
Products Operation. In case that there is any change concerning such information, it shall report it to the cultural affairs administrative
department which approves it for record within 15 days as of the change date.
Article 27
Any entity or individual must not consign, mail, transport or store the audio and video products prohibited by Article 4 or Article
21 of these Measures from operation, or provide such advantageous conditions as premise or agency for the audio and video products
operation prohibited by Article 4 or Article 21 of these Measures.
Article 28
The cultural affairs administrative department of the people’s government at or above the county level shall enhance the supervision
and management concerning the exhibition, fair, order-placing meeting and other exhibiting activities of audio and video products
according to the related state provisions.
Article 29
The cultural affairs administrative department in-charge of the local people’s government at or above the county level shall accept
the application for appraising whether the audio and video products are illegal or not.
At the time of application, the applicant shall file the application in written form to the cultural affairs administrative department
under the local people’s government at the county level at the place where the audio and video products are acquired, and shall,
hand in the samples of the audio and video products and the related documents and fill in an appraisal registration form of audio
and video products. The source, name, quantity, date and place of acquisition of the audio and video products and the appraisal purpose
and requirements shall be stated in the application letter.
An cultural affairs administrative department that accepts an application for appraising audio and video products shall appoint at
least 2 personnel who are accomplished in the appraisal business to undertake the appraising work, and shall make appraisal conclusion
and issue the written appraisal letter within 10 days since the application acceptance.
The name, vehicle, publishing entity, code under Chinese standards, laser digital storage chip source identification code, anti-forgery
mark and other major features of the audio and video products applied for appraisal, name and address valid certificate and contact
information of the applicant, and the appraisal results and so on shall be indicated in the appraisal letter of audio and video products.
In case the party concerned has any objection to the test results, he may request the cultural affairs administrative department at
a higher level for re-check within 15 days from the day of his receiving the written appraisal letter,, and the cultural affairs
administrative department at the higher level shall issue the written conclusion on re-check within 15 days from the day of its receiving
the application for re-check.
Article 30
In case an audio and video product wholesaling, retailing or leasing entity or a chained operation entity of audio and video products
wants to amend its name, business scope, or to merge another audio and video product wholesaling, retailing or leasing entity or
chained operation entity of audio and video products, or build up another audio and video product wholesaling, retailing or leasing
entity or chained operation entity of audio and video products due to merger or split-up, it shall, transact the formalities of approval
and registration according to the Regulation concerning the Audio and Video Products Administration, these Measures and the related
provisions concerning enterprise registration administration.
In case an audio and video product wholesaling, retailing or leasing entity or a chained operation entity of audio and video products
intends to amend its address, legal representative or principal person-in-charge or to stop its business activities, or in case an
individual involving in the business of retailing or leasing audio and video products wants to amend his business scope, address
or to stop his business activities, it/he shall go through the modification registration or cancellation registration in the administrative
department for industry and commerce that handled the original registration, and shall report to the administrative department of
cultural affairs that granted the original approval for record within 30 days since the registration date. However, if the modification
of the address exceeds the scope of jurisdiction of the original organ that released the license, it/he shall go through the formalities
of examination, approval and registration according to the former paragraph.
Article 31
The cultural affairs administrative department of the local people’s government at or above the county level shall enhance the training
of the employees of the audio and video product wholesaling, retailing or leasing entities for improving the employees’ ability for
understanding the regulations and policies concerning audio and video market and discerning the illegal audio and video products.
Chapter IV Legal Liabilities
Article 32
As for the cultural affairs administrative department or their functionary, by taking advantage of its/his office, accepts the properties
or benefits from others, and approves an audio and video product wholesaling, retailing or leasing entity which does not satisfy
the legal conditions for establishment, or does not conduct its/his duties for supervising, or does not investigate the illegal acts
it/he has found, thus resulting in serious consequences, the person in charge held responsible and other persons held to be directly
responsible shall be subject to criminal liabilities according to the provisions in the Criminal Law concerning the crime of bribes
acceptation, of power abuse, of duty neglector other crime; if the case is not serious enough for him to be imposed upon criminal
punishments, he shall be imposed upon an administrative sanction of demotion or dismissal from his post.
Article 33
In case that any functionary in the cultural affairs administrative department is involved in business activities of wholesaling,
retailing or leasing audio and video products directly or in a disguised form, or takes part in the business activities of an audio
and video product wholesaling, retailing and leasing entity directly or in a disguised form, he shall be imposed upon an administrative
sanction of dismissal from his post or dismissal according to the law.
In case that the cultural affairs administrative department has any of the acts enumerated in the preceding paragraph, the person
in charge held responsible and other persons held to be directly responsible shall be punished according to the preceding paragraph.
Article 34
In case an audio and video product wholesaling, retailing or leasing entity or individual knows perfectly or should know the fact
that the audio and video products it operates including any content prohibited by Article 4 of these Measures, the cultural affairs
administrative department or the law enforcement body authorized subject to law shall order it to terminate the business for internal
rectification and confiscate its audio and video products under illegal operation and its illegal proceeds. If the amount of illegal
operation fund exceeds 10,000, it shall be imposed upon a fine of more than 5 times but less than 10 times the amount of illegal
operation fund in addition; if the amount of illegal operation fund does not exceed 10,000 Yuan, it shall be imposed upon a fine
of at most 50,000 Yuan in addition. As for serious circumstances, its license shall, in addition, be revoked by the original organ
that released it. If he is suspected of a crime, he shall be sent to the judicial department and investigated of the criminal liabilities
according to the law.
Article 35
In case an audio and video product wholesaling, retailing or leasing entity or individual amends its name or business name, address,
legal representative or principal person-in-charge, business scope and so on Without transacting the formalities of examination,
approval and record according to these Measures, the cultural affairs administrative department or the law enforcement body authorized
subject to law shall order it to correct and impose a warning upon it, as for the serious circumstance, order it to stop its business
for rectification or revoke its license.
Article 36
In case any entity commits any of the following acts, the cultural affairs administrative department or the law enforcement body
authorized subject to law shall order it to cease the illegal act, give it a warning and confiscate its audio and video products
under illegal operation and its illegal proceeds. If the amount of illegal operation fund exceeds 10,000 Yuan, it shall be imposed
upon a fine of more than 5 times but less than 10 times the amount of illegal operation fund in addition; if the amount of illegal
operation fund does not exceed 10,000 Yuan, it shall be imposed upon a fine of more than 10,000 Yuan but less than 50,000 Yuan in
addition. As for serious circumstances, its license shall, in addition, be revoked by the original organ that released it. If it
is discredited of a crime, it shall be sent to the judicial department and investigated of the criminal liabilities according to
the law.
(1)
those published by an entity that does not get into the audio and video products publication or those illegally published by an entity
that get into the audio and video products publication;
(2)
those reproduced by an entity that does not get into the audio and video products reproduction or those illegally reproduced by an
entity that get into the audio and video products reproduction;
(3)
those imported without approval from the Ministry of Culture;
(4)
those imported for reference in research or teaching or for exhibition or display; or
(5)
other illegal audio and video products.
Article 37
Any of the following circumstances shall be considered as a “serious circumstance” as mentioned in Articles 34, 35 and 36 of these
Measures:
(1)
Going against the Regulation concerning the Audio and Video Products
| 