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The National People’s Congress
Order of the President of the People’s Republic of China
No.63
The Law of the People’s Republic of China on Administrative Punishments, adopted at the Fourth Session of the Eighth National People’s
Congress on March 17, 1996, is promulgated now, and shall enter into force as of October 17, 1996
President of the People’s Republic of China: Jiang Zemin
March 17, 1996
Law of the People’s Republic of China on Administrative Punishments ContentsChapter I General Provisions
Chapter II Classification and Establishment of Administrative Punishments
Chapter III Organs for Implementing Administrative Punishments
Chapter IV Jurisdiction and Application of Administrative Punishments
Chapter V Decision on Administrative Punishments
Section 1 Summary Procedure
Section 2 General Procedure
Section 3 Hearing Procedure
Chapter VI Execution of Administrative Punishments
Chapter VII Legal Responsibility
Chapter VIII Supplementary Provisions
Chapter I General Provisions
Article 1
This Law is enacted in pursuance of the Constitution to regulate the establishment and implementation of administrative punishments,
to ensure and supervise the effective exercise of administration by the administrative organs, to safeguard public interests and
social order, to protect lawful rights and interests of the citizens, legal persons or other organizations.
Article 2
This Law applies to the establishment and implementation of administrative punishments.
Article 3
Administrative punishments which shall be imposed on citizens, legal persons or other organizations for the acts committed in violation
of administrative order shall be stipulated by laws, regulations or rules in accordance with this law, and shall be implemented by
administrative organs in accordance with the procedure stipulated by this Law.
Administrative punishments shall be null and void, if they are inflicted without legal basis or without the observation of the legal
procedure.
Article 4
Administrative punishments shall abide by the principles of being fair and just and open to the public.
The establishment and implementation of administrative punishments must take facts as the base and correspond to the facts, nature
and seriousness of the illegal acts as well as to the extent of the harm thereby caused to the society.
Stipulations on imposing administrative punishments for illegal acts must be promulgated and if not, shall not serve as the legal
basis for administrative punishments.
Article 5
Implementing administrative punishments and checking illegal acts shall adhere to the combination of punishments and education, in
order to educate citizens, legal persons or other organizations to observe the law of their own accord.
Article 6
Citizens, legal persons or other organizations have the right to state their cases and defend themselves in respect of the administrative
punishments imposed on them , and if they refuse to accept the administrative punishments, shall have the right, according to law,
to apply for administrative reconsideration or institute an administrative law suit.
Citizens, legal persons or other organizations who have sustained damage on account of administrative punishments imposed on them
in violation of law, have the right to lodge their claims.
Article 7
Citizens, legal persons or other organizations, being imposed on administrative punishments for illegal acts, who have thereby caused
damage to other people, shall bear civil responsibility according to law.
In case illegal act has constituted a crime, criminal responsibility shall be investigated according to law, and criminal punishment
shall not be substituted by administrative punishments.
Chapter II Classification and Establishment of Administrative Punishments
Article 8
Classification of Administrative Punishments:
(1)
Warning;
(2)
Fine;
(3)
Forfeiture of illegal earnings, forfeiture of illegal property;
(4)
Order to stop production and business;
(5)
Suspension or withdrawal of permits, suspension or withdrawal of licenses;
(6)
Administrative detention; and
(7)
Other administrative punishments as stipulated by law or administrative regulations.
Article 9
Various administrative punishments can be established by law.
Administrative punishment which restrains personal liberty can only be established by law.
Article 10
Administrative regulations can establish whatever administrative punishments except those restraining personal liberty.
Where stipulations are already formulated by law on administrative punishments for illegal acts, specific stipulations to be formulated
by administrative regulations must come within the scope of acts, classification and extent stipulated by law for imposing administrative
punishments.
Article 11
Local regulations can establish administrative punishments except those restraining personal liberty and withdrawing enterprises’
business licenses.
Where stipulations are already formulated by law or administrative regulations on administrative punishments for illegal acts, specific
stipulations to be formulated by local regulations must come within the scope of acts, classification and extent stipulated by law
or administrative regulations on imposing administrative punishments.
Article 12
Rules formulated by Ministries and Commissions under the State Council may incorporate specific stipulations on administrative punishments
within the scope of acts, classification and extent stipulated by law or administrative regulations.
Where law and administrative regulations have not been formulated, the rules formulated by the Ministries and Commissions under the
State Council referred to in the preceding paragraph, may establish administrative punishments as warning and fine for acts violating
administrative order. And the limits of fines shall be stipulated by the State Council.
The State Council may authorize the organs directly under the State Council charged with the right to inflict administrative punishments
to stipulate administrative punishments in accordance with the stipulations of the preceding paragraphs 1 and 2 of this Article.
Article 13
Rules formulated by the people’s governments of provinces, autonomous regions and municipalities directly under the central government,
the people’s governments of the cities where the people’s governments of provinces and autonomous regions are seated, and the people’s
governments of large cities approved by the State Council, can incorporate specific stipulations on administrative punishments within
the scope of acts, classification and extent stipulated by law or regulations.
Where law and regulations have not been formulated, the rules formulated by the people’s governments referred to in the preceding
paragraph may establish administrative punishments as warning and fine for acts violating administrative order. And the limits for
fines shall be stipulated by the standing committees of the People’s Congress of the provinces, autonomous regions and municipalities
directly under the central government.
Article 14
Any other documents of a regulative character other than those provided in Articles 9, 10, 11, 12 and 13 shall not establish administrative
punishments.
Chapter III The Organs for Implementing Administrative Punishments
Article 15
Administrative punishments shall be implemented by the authorized administrative organs within the scope of their functions and powers.
Article 16
The State Council or the people’s governments of provinces, autonomous regions and municipalities directly under the central government
authorized by the State Council may determine whether an administrative organ has the right to exercise relevant administrative punishments,
but the right to exercise administrative punishments restraining personal liberty can only be performed by the public security organs.
Article 17
Functional organizations empowered by law or regulations in charge of the administration over public affairs may implement administrative
punishments within the scope of the lawful authorization.
Article 18
Administrative organs may, according to law, regulations and rules and within their lawful authorization, entrust the organizations
qualified for the conditions stipulated in Article 19 of this Law to implement administrative punishments, and the administrative
organs shall not entrust another organization or person to implement the administrative punishments.
The entrusting administrative organ shall be responsible for the supervision over the acts of the entrusted organization to implement
the administrative punishments, and shall bear legal responsibilities consequent upon such acts.
The entrusted organization shall, within its authorization, implement administrative punishments in the name of the entrusting administrative
organ, and shall not entrust another organization or person to implement same administrative punishments.
Article 19
The entrusted organization must be qualified for the following conditions:
(1)
Organizations formed according to law and in charge of public affairs;
(2)
Manned with personnels well-informed of related law, regulations, rules and business; and
(3)
Where technical tests or technical appraisal are required, shall have the means to conduct such tests and appraisal.
Chapter IV Jurisdiction and Application of Administrative Punishments
Article 20
Administrative punishments come under the jurisdiction of the administrative organs with the right to make administrative punishments
of the people’s governments at county level and above in the place where illegal acts have taken place, unless otherwise provided
by law or administrative regulations.
Article 21
Dispute over jurisdiction shall be referred to an administrative organ common to the disputing organs at a higher level which will
determine the jurisdiction.
Article 22
Where the illegal acts constitute crimes, the administrative organs must transfer the case to judicial organs for investigation of
criminal responsibility according to law.
Article 23
Administrative organs, when implementing administrative punishments, shall order the parties to make, or within a specified period
of time to make corrections to their illegal acts.
Article 24
A party shall be subjected to no more than one fine for the same illegal act as administrative punishment.
Article 25
Persons under the age of 14, having committed illegal acts, shall not be imposed on administrative punishments, but their guardians
shall be ordered to discipline them; persons at the age of 14 but under 18 committing illegal acts shall be imposed on either light
or mitigated administrative punishments.
Article 26
Mental patients committing illegal acts when unable to determine or control their acts, shall not be imposed on administrative punishments,
but the guardians shall be ordered to look after them. Patients suffering intermittent mental disorder committing illegal acts when
in normal mental order, shall be imposed on administrative punishments.
Article 27
Parties shall be imposed on administrative punishments, either light or mitigated, subject to one of the following instances:
(1)
Take initiative in removing or minimizing the consequential damage;
(2)
Commit illegal acts on account of being coerced by others;
(3)
Contribute in cooperation with administrative organs to investigation into and handling with illegal acts; or
(4)
Any other instances for which administrative punishments can be light or mitigated according to law.
No administrative punishment shall be imposed for trifle illegal acts which have been timely checked without causing consequent damage.
Article 28
Where the illegal acts constitute an offense for which criminal detention or fixed-term imprisonment has been rendered by the people’s
court, the administrative detention imposed on the party by the administrative organ shall, according to law, be deducted from the
period of criminal detention or imprisonment.
Where the illegal acts constitute an offense for which fine is imposed by the people’s court, the fine inflicted on the party by the
administrative organ shall be set off.
Article 29
No administrative punishment shall be given for illegal acts which have not been discovered within two years, unless otherwise provided
by law.
The time limit in the preceding paragraph shall be computed from the day of the occurrence of the illegal acts, or from the day of
the termination of continuous or consecutive illegal acts.
Chapter V Decision on Administrative Punishments
Article 30
Where citizens, legal persons or other organizations shall according to law be given administrative punishments for acts violating
administrative order, the administrative organ must ascertain the facts; no administrative punishments shall be imposed if facts
about the illegal acts remain unclear.
Article 31
Administrative organs, before making a decision on administrative punishments, shall inform the party of the facts, causes and legal
basis for making such a decision, and advise the party of the rights which the law confers on him.
Article 32
The party has the right to state the case and defend himself. The administrative organ must hear in full the party’s opinions, and
shall review and examine the facts, causes and evidence submitted by the party. The administrative organ shall adopt the facts, causes
and evidence submitted by the party if they are sustainable.
The administrative organ shall not aggravate punishments on account of the party’s statements or defense.
Section 1 Summary Procedure
Article 33
A decision on administrative punishments of a fine less than fifty renminbi yuan on citizens or less than a thousand renminbi yuan
on legal persons or other organizations, or a warning, can be made on the spot for confirmed illegal acts with sound legal basis,
and the party shall execute said administrative punishments according to Articles 46, 47 and 48 of this Law.
Article 34
Law administering personnels making a decision on administrative punishments on the spot, shall show to the party the identification
certificates for administering law, and fill in the official printed form and the statement of decision on administrative punishments
with serial number on it. The statement of decision on administrative punishment shall be given to the party on the spot.
The statement of decision on administrative punishment in the preceding paragraph shall carry the illegal acts done by the party,
legal basis for the administrative punishment, sum of the fine, time and place, name of the administrative organ, and shall be signed
or stamped by the law administering personnels.
The decision on administrative punishment, made by the law administering personnels on the spot, must be filed with their administrative
organ.
Article 35
The party who refuses to accept the decision on administrative punishment made on the spot, may according to law apply for administrative
reconsideration or lodge an administrative law suit.
Section 2 General Procedure
Article 36
Except the case, stipulated in Article 33 , where the administrative punishment may be given on spot, the administrative organ, finding
that administrative punishment shall according to law be inflicted on a citizen, legal person or other organization for their acts,
must conduct an overall, objective, fair and just investigation, collect relevant evidence, or may conduct, when necessary, an inspection
according to law or regulations.
Article 37
No less than two law administering personnels shall be present on the scene when the administrative organ conducts investigation or
inspection, and shall show their certificates to the party or related persons who should give truthful reply to inquiries and cooperate
in the investigation or inspection, without obstructing the process. Written records shall be made of the inquiries or inspection.
The administrative organ, when collecting evidence, may take evidence by random sampling and, when evidence may possibly be lost or
collected with difficulty at a later time, may preserve them with registrations being made, subject to the approval by the responsible
person of the administrative organ. Decision on the disposal shall be timely made within seven days during which period the party
or related persons shall not destroy or transfer such evidence.
Law administering personnels, having direct concern therein with the party concerned, shall withdraw.
Article 38
Following the conclusion of the investigation, responsible persons of the administrative organ shall examine the findings of the investigation
and according to various circumstances of the case, make the following decisions respectively:
(1)
Decision on administrative punishment shall be made according to the seriousness and particulars of the case if there are illegal
acts for which administrative punishment should be imposed;
(2)
Administrative punishment shall not be inflicted if illegal acts are minor ones for which administrative punishments may not be inflicted
according to law;
(3)
No administrative punishment shall be imposed if illegal acts are not sustainable; and
(4)
Illegal acts which constitute a crime shall be transferred to the judicial organ.
Where serious administrative punishment shall be imposed for complicated or major illegal acts, the decision shall be made through
collective consideration by the responsible persons of the administrative organ.
Article 39
The administrative organ, inflicting administrative punishment according to Article 38 of this Law, shall draw up a statement of
decision on administrative punishment. The statement of decision on the administrative punishment shall carry the following items:
(1)
The name or post_title of the party and address;
(2)
The facts and evidence concerning the violation of law, regulations or rules;
(3)
Classification and legal basis of the administrative punishment;
(4)
Method and time limit for executing the administrative punishment;
(5)
Avenue and time limit for application for administrative reconsideration and for the institution of an administrative law suit, if
the party refuses to accept the administrative punishment; and
(6)
The name of the administrative organ making such punishment and the date of the decision.
Decision on administrative punishment must carry the official stamp of the administrative organ making the administrative punishment.
Article 40
The statement of decision on administrative punishment shall be delivered to the party on spot after pronouncement, and in absence
of the party, the administrative organ shall, according to Civil Procedure Law, serve within seven days the statement of the decision
to the party.
Article 41
In case the administrative organ and its law administering personnels fail, before making the decision on administrative punishment,
to inform the party of the facts, causes and legal basis for making such a decision, or refuse to hear the party’s presentation of
the case and defense, as stipulated in Articles 31 and 32 of this Law, the administrative punishment can not be established, unless
the party has waived his right to the presentation and defense.
Section 3 Hearing Procedure
Article 42
The administrative organ before making a decision on the administrative punishment such as ordering to stop production and business,
withdrawing the permit or license, or large sum of fine, shall advise the party of the right to hearing. And the administrative organ
at the request of the party shall organize hearing, and the party shall not bear the expenses for the hearing. Hearing shall be organized
in the following manner:
(1)
The party shall, within 3 days after being informed by the administrative organ, notify them of the party’s request for hearing;
(2)
The administrative organ shall notify the party of the time and place of the hearing seven days before it;
(3)
Hearing shall be held in public, with the exception that the state’s or commercial secret or personal privacy is involved;
(4)
Hearing shall be presided over by the personnel appointed by the administrative organ other than the investigators of the case and
the party, submitting that the presider has direct interest in the case, have the right to apply for the withdrawal;
(5)
The party may attend in person or appoint one or two agents to the hearing;
(6)
At hearing the investigators state the facts of the illegal acts done by the party, present the evidence and make suggestion on administrative
punishment; the party may make defense and question the evidence; and
(7)
Written records on the hearing shall be made which shall be examined to see no error with it, and signed or stamped by the party.
The party who takes objection to administrative punishment on restraint of personal liberty, shall act according to the Regulations
on Administrative Penalties for Public Security.
Article 43
Following the hearing, the administrative organ shall make the decision in accordance with the provisions of Article 38 of this Law.
Chapter VI Execution of Administrative Punishment
Article 44
After the decision on administrative punishment is made in accordance with law, the party shall execute the decision within the time
limit prescribed in the decision.
Article 45
The execution of the administrative punishment shall not be suspended when the party refuses to accept the decision and applies for
administrative reconsideration or lodge an administrative law suit, unless otherwise provided by law.
Article 46
The administrative organ making the decision on fine shall be separated from the collecting agency of the fine.
The administrative organ making the decision on administrative punishments and its law administering personnels shall not collect
fines on their own authority, with the exception of the fines collected on spot in accordance with Articles 47 and 48.
The party shall, within fifteen days from the day of receiving the statement of decision on administrative punishment, pay the fines
to the appointed bank. The bank shall, after receipt of the fines, hand them directly to the state treasury.
Article 47
In case a decision is made on administrative punishment on spot in accordance with the provisions of Article 33 of this Law, the
law administering personnels may collect fines on spot, subject to one of the following instances:
(1)
A fine less than twenty renminbi yuan imposed according to law; or
(2)
Fines, if not collected on spot, shall be hardly executed.
Article 48
Administrative organs and their law administering personnels, having made the decisions on fines in accordance with Articles 33 and
38, may collect them on spot at the request of the parties, provided the parties in remote border areas, or on waters, or in area’s
with inconvenient traffic, have difficulties when paying the fines to the appointed banks.
Article 49
Administrative organs and their law administering personnels collecting fines on spot, must issue to the parties the uniform receipt
for fines printed and issued by the financial departments of provinces, autonomous regions and municipalities directly under the
central government, and without issuing the uniform receipts for fines printed and issued by the financial departments, parties have
the right to refuse the payment of fines.
Article 50
Law administering personnels collecting fines on spot shall, within two days from the day of fine, hand the fines over to the administrative
organs; fines collected on spot on waters shall be handed over to the administrative organs within two days from the day of disembarkation.
Administrative organs shall within two days hand the fines over to the appointed banks.
Article 51
In case of failure by the party to execute the decision on administrative punishment within the prescribed time limit, the administrative
organ making the decision on the punishment may take the following measures:
(1)
In case of failure to pay the fine in time, an additional fine shall be imposed amounting to three per cent of the original fine on
a daily rate basis;
(2)
In accordance with law, the sealed up or seized property can be put to auction to pay, or appropriation of the frozen bank deposit
can be made for payment of, the fine; or
(3)
Apply to the people’s court for enforcement.
Article 52
At the request of the party assuredly in economic difficulty, payment of fine may be postponed or made in installments, subject to
the approval by the administrative organ.
Article 53
Illegal property which has been confiscated with the exception of those to be destroyed according to law, must be auctioned publicly
or otherwise disposed of according to relevant stipulations of the state.
Fines, confiscated illegal earnings or proceeds of the illegal property by auction must be handed over in its entirety to the state
treasury, and shall not be withheld or shared privately and secretly in any manner by any administrative organs or individuals. Financial
departments shall not return in any forms to administrative organs making decisions on administrative punishments, the fines, confiscated
illegal earnings or proceeds by auction of the confiscated illegal property.
Article 54
Administrative organs shall establish and complete the system of supervision over administrative punishments. And people’s governments
at county level and above shall strengthen the supervision and inspection over administrative punishments.
Citizens, legal persons and other organizations have the right to lodge their complaints or make report on the punishments imposed
by the administrative organs. Administrative organs shall make conscientious examinations and take initiative in correction if anything
is found wrong with the administrative punishments.
Chapter VII Legal Responsibility
Article 55
Where administrative organs implement administrative punishments in one of the following instances, superior administrative organs
or other related departments shall order said administrative organs to make correction and may give disciplinary sanctions according
to law to personnels in charge, and other personnels, bearing direct responsibility:
(1)
No legal basis for imposing administrative punishments;
(2)
Alterations made on one’s own authority in classification and extent of administrative punishments;
(3)
Violations of the legal procedure for administrative punishments; or
(4)
Violations of Article 18 of this Law on entrustment of implementing punishments.
Article 56
If administrative organs implementing punishments on parties do not use documents and receipts specially designed for, or use those
documents and receipts which are not printed and issued by lawfully appointed departments for, fines and confiscated property, the
parties have the right to reject the punishments and make report thereon. Superior administrative organs or other related departments
shall collect the illegal documents and receipts for destruction, and impose disciplinary sanctions on the personnels in charge,
and other personnels, bearing direct responsibility.
Article 57
Where administrative organs collect fines on their own authority in violation of Article 46 of this Law or financial departments
return to administrative organs fines or proceeds of auction in violation of Article 53 of this Law, superior administrative organs
or related departments shall order said administrative organs or financial departments to make corrections and impose disciplinary
sanctions on the personnels in charge, and other personnels, bearing direct responsibility.
Article 58
Fines, confiscated illegal earnings or property which have been withheld or shared privately or secretly in any manner by the administrative
organs, shall be recovered by financial departments or other related departments and disciplinary sanctions shall be imposed on the
personnels in charge, and other personnels, bearing direct responsibility, or if the case is so serious as to constitute a crime,
criminal responsibility shall be investigated.
Law administering personnels abusing their authority to demand or accept and take into their possession other’s property or collected
fines, shall be charged with criminal responsibility if the such acts constituted an offense; and disciplinary sanctions shall be
imposed on them if the acts are minor ones not sufficient for a crime.
Article 59
Administrative organs using or damaging the property held in custody, thereby causing loss or damage to the party, shall make compensation
according to law, and disciplinary sanctions shall be imposed on the personnels in charge, and other personnels, bearing direct responsibility.
Article 60
Administrative organs implementing inspective or executive measures in violation of law, thereby causing personal or property damage
to citizens, or causing loss to legal persons or other organizations, shall make compensation according to law, and disciplinary
sanctions shall be imposed on the personnels in charge, and other personnels, bearing direct responsibility; criminal responsibility
shall be investigated according to law if the case is so serious as to constitute a crime.
Article 61
Where administrative organs seek private interest for the units themselves by withholding cases which should be transferred to judicial
organs according to law for determination of criminal responsibility and substitute administrative punishments for criminal punishments,
superior administrative organs or other related departments shall order said administrative organs to make corrections, or otherwise
impose disciplinary sanctions on the personnels in charge bearing direct responsibility, if they refuse to correct themselves. Those
who play favoritism and protect illegal acts shall be charged with criminal responsibility by applying mutatis mutandis the provisions
of Article 188 of the Criminal Law.
Article 62
Where law administering personnels who have neglected their duties resulting in failure to check or punish illegal acts which should
be checked or punished, have caused damage to lawful rights of citizens, legal persons or other organizations, to public interest
and social order, the personnels in charge, and other personnels, bearing direct responsibility shall be imposed on disciplinary
sanctions according to law, and if the cases are so serious as to constitute crimes, criminal responsibility shall be investigated
according to law.
Chapter VIII Supplementary Provisions
Ar
| Category |
SECURITIES |
Organ of Promulgation |
The State Council |
Status of Effect |
In Force |
| Date of Promulgation |
1997-12-25 |
Effective Date |
1998-04-01 |
|
|
|
Interim Measures for the Administration of Securities and Futures Investment Consultancy |
Chapter I General Provisions
Chapter II Securities and Futures Investment Consultancy Agencies
Chapter III Securities and Futures Investment Consultants
Chapter IV Securities and Futures Investment Consultancy Business
Chapter V Penalty Provisions
Chapter VI Supplementary Provision
(Approved by the State Council on November 30, 1997 and promulgated by
the Securities Commission under the State Council on December 25, 1997)
Chapter I General Provisions
Article 1 These Measures are formulated with a view to strengthening
the administration of securities and futures investment consultancy activities
and safeguarding the lawful rights and interests of investors and public
interest of society.
Article 2 These Measures must be complied with in engaging in securities
and futures investment consultancy business within the territory of the
People’s Republic of China.
The securities and futures investment consultancy referred to in these
Measures means the activities of the agencies and their consultants engaging
in the securities and futures consultancy business in providing direct or
indirect paid-for consultancy services for securities and futures investors
or clients with securities and futures analyses, forecasts or proposals and
other services in the following forms:
(1)to accept the entrustment of an investor or client and provide
securities and futures investment consultancy services;
(2)to hold seminars, lectures and analysis meetings on securities and
futures investment consultancy;
(3)to publish articles, commentaries and reports on securities and
futures investment consultancy in newspapers and periodicals, and to provide
securities and futures investment consultancy services through such mass
media as radio stations, television stations and others;
(4)to provide securities and futures investment consultancy services
through telephone, fax, computer networks and other telecommunications
systems; and
(5)other forms authenticated by the China Securities Supervisory and
Control Commission(hereinafter referred to as CSSCC).
Article 3 A business permit must be obtained from CSSCC in pursuance of the provisions of these Measures for engaging in securities
and futures
consultancy business. No institution or individual shall engage in securities
and futures investment consultancy business in the forms listed in Article 2
of these Measures without the permission of CSSCC.
Securities operations agencies, futures brokerage firms and their staff
should comply with the provisions of these Measures in engaging in securities
and futures investment consultancy business beyond the respective scope of
those agencies.
Article 4 Relevant provisions of relevant laws, regulations, rules and
CSSCC must be complied with and the principle of objectiveness, fairness,
honesty and good faith must be adhered to in engaging in securities and
futures investment consultancy.
Article 5 CSSCC and its authorized local securities and futures
supervisory and control departments(hereinafter referred to as local
securities control offices(securities commissions) shall be responsible
for the supervision and control of securities and futures investment
consultancy business and be responsible for the implementation of these
Measures.
Chapter II Securities and Futures Investment Consultancy Agencies
Article 6 The following qualifications shall be met for application for
the operational qualifications of an agency for securities and futures
investment consultancy:
(1)for an agency engaging in either securities or futures investment
consultancy business respectively, there are over five full-time persons with
employment qualifications for securities and futures investment consultancy;
for an agency engaging in securities and futures investment consultancy
business simultaneously, there are over ten full-time persons with employment
qualifications for securities and futures investment consultancy; among
its high-ranking managerial personnel, there must be at least one person with
employment qualifications for securities or futures investment consultancy;
(2)has a registered capital of over RMB one million Yuan;
(3)has a fixed business site and telecommunications and other information
transmission facilities commesurate with the business;
(4)has a company constitution;
(5)has sound internal management rules; and
(6)has other qualifications required by CSSCC.
Article 7 Securities operations agencies and futures brokerage firms
should conform to the qualifications provided for in Article 6 of these
Measures before they may apply for engagement in securities and futures
investment consultancy business beyond the respective scope of those agencies.
Other agencies engaging in consultancy businesses that conform to the
qualifications provided for in Article 6 of these Measures may apply for
concurrent operations of securities and futures investment consultancy
business.
Article 8 An agency applying for operational qualifications for
securities and futures investment consultancy shall follow the following
procedures of examination and approval:
(1)An applicant shall file an application at the local securities control
office(securities commission) of the locality authorized by CSSCC(where the
local securities control office(securities commission) is not authorized by
CSSCC, an applicant shall apply directly to CSSCC, same hereinafter), the
local securities control office(securities commission) puts forth preliminary
remarks on the examination upon agreement after examination and verification;
(2)the local securities control office(securities commission) shall
submit the application papers agreed upon to CSSCC, and CSSCC shall issue a
business permit to the applicant upon examination and approval and despatch
a copy of the approval document to the local securities control office
(securities commission); and
(3)CSSCC shall release to society the information on the applicants who
have obtained the business permits in the form of announcements.
Article 9 An agency applying for operational qualifications for
securities and futures investment consultancy should present the following
documents:
(1)an application form uniformly printed by CSSCC;
(2)articles of associaation of the company;
(3)business license of the legal entity;
(4)list of high-ranking managerial personnel and professional staff
engaging in securities and futures investment consultancy of the agency and
their educational background, work experiences and certificates of employment
qualifications;
(5)the mode of investment consultancy business and rules and regulations
for internal management;
(6)certificate for the business site, address for correspondence,
telephone number(s) and fax number(s) of the agnecy;
(7)a capital certification report provided by a certified accountant; and
(8)other documents the presentation of which is required by CSSCC.
Article 10 A report on the changes shall be submitted to the local
securities control office(securities commission) within five working days
starting from the date of occurence of the changes when changes occur in the
business mode, business site, main person-in-charge and professional staff
with employment qualifications for securities and futures investment
consultancy and go through the formalities for the changes.
Article 11 Securities and futures investment consultancy agencies should
apply to local securities control offices(securities commissions) for annual
inspection between January 1 and April 30 every year. The following documents
should be presented in going through the annual inspection:
(1)an application report for annual inspection;
(2)Annual business report; and
(3)financial accounting statements audited by a certified accountant.
Local securities control offices(securities commissions) should, within
20 working days starting from the date of receipt of the documents listed in
the preceding paragraph, put forth remarks of examination and verification
on the annual inspection applications; those agreed to upon examination and
verification shall be submitted to CSSCC for examination and approval.
A securities and futures investment consultancy agency that fails to
present the annual inspection report on expiry of the specified time period
or fails to pass the annual inspection upon examination and verification
must not continue to engage in securities and futures investment consultancy
business.
Chapter III Securities and Futures Investment Consultants
Article 12 A person who engages in securities and futures investment
consultancy business must obtain the employment qualifications for securities
and futures investment consultancy and join an agency with operational
qualifications for securities and futures investment consultancy before he/she
may engage in securities and futures investment consultancy.
Any person who has no emplyment qualifications for securities and
futures investment consultancy or who has the employment qualifications for
securities and futures investment consultancy however has not worked in a
securities and futures investment consultancy agency must not engage in
securities and futures investment consultancy business.
Article 13 A securities and futures investment consultant who applies
to obtain employment qualifications for securities and futures investment
consultancy must have the following qualifications:
(1)has the nationality of the People’s Republic of China;
(2)has full ability for civil acts;
(3)with moral integrity, honesty and has good professional ethics;
(4)has not been subjected to criminal peanlty or severe administrative
sanctions relating to securities and futures business;
(5)has an educational background of regular college course and above;
(6)has more than two years of experience in securities business in the
case of a securities investment consultant, and has more than two years of
experience in futures business in the case of a futures investment consultant;
(7)has passed the qualification examination for securities and futures
employees uniformly organized by CSSCC; and
(8)other qualaifications prescribed by CSSCC.
Article 14 A securities and futures investment consultant who applies
to obtain the employment qualifications for securities and futures investment
consultancy shall follow the following procedures for examination and
approval:
(1)An applicant shall file an application at the local securities control
office(securities commission) of the locality authorized by CSSCC(where the
local securities control office(securities commission) is not authorized by
CSSCC, the applicant shall apply to CSSCC direct, same hereinafter), the
local securities control office(securities commission) shall put forth
remarks on the preliminary examination upon agreement after examination and
verification; and
(2)the application papers agreed to upon examaination and verification by
the local securities control office(securities commisssion) shall be submitted
to CSSCC, CSSCC shall issue a certificate of qualification to the applicant
upon examination and approval and despatch a copy of the approval document to
the local securities control office(securities commission).
Article 15 A securities and futures investment consultant who applies to
obtain employment qualifications for securities and futures investment
consultancy should present the following documents:
(1)an application form uniformly printed by CSSCC;
(2)the identity card;
(3)the diploma(s);
(4)report card of the qualification examaination for securities and
futures emplyees;
(5)materials explaining past behavior issued by the employer unit or
the subdistrict office of the place of domicile; and
(6)other materials required to be submitted by CSSCC.
Article 16 When a securities and futures investment consultant who has
obtained the employment qualifications applies for business operations,
the securities and futures investment consultancy agency he/she joins
shall file an application at the local securities control office(securities
commission) of the locality wherein the agency is located, the application
shall be submitted to CSSCC for examination and approval upon consent of the local securities control office(securities commission)
after examination
and verification; whoever is approved for business operations shall be
issued a business license by CSSCC.
Article 17 A securities and futures investment consultant with the
acquisition of the employment qualifications should go through annual
inspection for business operations simultaneously at the time of annual
inspection of the securities and futures investment consultancy agency he/she
has joined. A securities and futures investment consultant with the
acquisition of the employment qualifications who however has no business
operations in a securities and futures investment consultancy agency,
his/her employment qualifications will automatically become invalid at
the expiration of 18 months from the date of the acquisition.
Article 18 No securities and futures investment consultant shall
concurrently engage in business operations in two or more than two securities
and futures investment consultancy agencies.
Chapter IV Securities and Futures Investment Consultancy Business
Administration
Article 19 A securities and futures investment consultancy agency and
its investment consultants should provide securities and futures investment
consultancy services for investors or clients with the acknowledged attitude
of the trade: discretion, honesty, diligence and fulfilment of responsibility.
Articlw 20 A securities and futures investment consultancy agency and
its investment consultants should use the relevant information and materials
completely, objectively and accurately to provide investment analyses,
forecasts and proposals to investors or clients, and must not quote or
alter relevant information and materials out of context; sources and
copyright owners shall be annotated in quoting relevant information and
materials.
Article 21 A securities and futures investment consultancy agency and
its investment consultants must not provide investment analyses, forecasts
or proposals to investors or clients on the basis of false information,
market rumors or inside information.
Article 22 When publishing articles, reports or views on investment
consultancy in newspapers, periodicals, radio stations, television stations
or other media, a securities and futures investment consultant must annotate
the name of the securities and futures investment consultancy agency in which
he/she is employed and the true name of the individual and make full
explanation on investment risks. A securities and futures investment
consultancy agency must annotate the name and address of the agency, the
telephone number(s) for contact and the name(s) of the contact in providing
securities and futures investment consultancy faxes to investors or clients.
Article 23 A securities and futures investment consultancy agency
should apply to the local securities control office(securities commission)
for the record in co-sponsorship or assisting in sponsorship of a page or
a program on securities and futures investment consultancy with newspapers,
periodicals, radio stations and television stations or in business cooperation
with departments of telecommunications services. Materials for the record
include contents of cooperation, time of beginning and termination,
layout of a printed sheet or time band of the program, the person-in-charge of the project, etc, and affix the seals of the units
of the two sides.
Article 24 No securities and futures investment consultancy agency and
its investment consultants shall engage in the following activities:
(1)engaging in securities and futures buying and selling as an agent of investors;
(2)making commitments on returns on securities and futures investment to
investors;
(3)agreement with investors on the sharing of returns or losses of the
investment;
(4)buying and selling of stocks for himself/herself and securities with
the nature and function of stocks and futures;
(5)manipulating the market or engaging in inside trading by exploiting
the consultancy services in collaboration with others; and
(6)other fraudulent acts in securities and futures prohibited by
laws, rules and regulations.
Article 25 The investment analyses, forecasts or proposals on the same
question provided to different clients by a securities and futures investment
consultancy should be consistent.
A securities operations agency with self-managed businesses should be
consistent in providing consultancy suggestions on the same question to the
public of society and its self-managed department and must not mislead
the public of society out of requirements for profit-gaining of its self-
managed businesses in engaging in securities investment consultancy
business beyond the scope of the agency.
Article 26 Securities and futures information briefs, newsflash and
trends compiled and issued by a securities operations agency or futures
brokerage firm for the internal use of the agency and the information systems
shall be restricted to use within the agency only and must not be provided
to the public of society through any channel.
The underwriter or the person who recommends the listing and their
subordinate securities investment consultancy agencies of the company whose
public issuance of shares approved by CSSCC must not publish in mass media
its report on the analysis of investment value written for clients.
Article 27 CSSCC and local securities control offices(securities
commissions) have the power to conduct inspection over the business activities
of securities and futures investment concultancy agencies and investment
consultants, the securities and futures investment consultancy agencies and
their investment consultants to be inspected should cooperate and not
interfere and obstruct.
CSSCC and local securities control offices(securities commissions) and
their functionaries should pay attention to the protection of the business
secrets involved in the process of business inspection.
Article 28 Securities and futures investment consultancy agencies
should put the investment consultancy materials they provide to investors
or public of society in safekeeping for two years starting from the date
of provision.
Article 29 Local securities control offices(securities commissions)
shall, on the basis of the complaints or reports of investors or public of society, have the power to demand the securities and futures
investment
consultancy agencies and their investment consultants to explain the
situation and provide relevant materials.
Article 30 Any unit or individual that uncovers the acts of securities
and futures investment consultancy agencies, investment consultants or other
agencies and individuals in violation of the provisions of these Measures
may lodge a complaint or make a report to local securities control offices
(securities commissions).
Article 31 Local securities control offices(securities commissions)
should establish a case and investigate the acts in violation of the
provisions of these Measures and submit a report on the results of investigation to CSSCC for the record.
Chapter V Penalty Provisions
Article 32 Whoever engages in the securities and futures investment
consultancy business provided for in Article 2 of these Measures on one’s
own without the permission of CSSCC shall be ordered to suspend the business
by the local securities control office(securities commission), and
confisticated of the illegal gains and imposed a fine of the amount less
than the equivalent value of the illegal gains.
Article 33 Any securities and futures investment consultancy agency
that commits any of the following acts shall be imposed a fine of more than
RMB 10,000 Yuan less than RMB 50,000 Yuan by the the local securities control
office(securities commission); where the circumstances are serious, the
local securities control office(securities commission) should submit a
report to CSSCC, and CSSCC shall impose a penalty of suspension or revocation
of its business qualifications:
(1)there are false statements or major omissions in the documents and
materials submitted to CSSCC;
(2)failure to fulfil the obligations of reporting and annual inspection
in accordance with the provisions of these Measures;
(3)failure to go through the formalities for the changes in the relevant
information of the agency which have taken place in accordance with the
provisions of these Measures;
(4)securities and futures investment consultants of the agency having
been subjected to administrative sanctions by the securities supervisory
and control department for violation of the provisions of these Measures; and
(5)interfering with or obstructing the inspection and investigation of the local securities control office(securities
commission) or concealing and
destroying evidences.
Article 34 Any securities and futures investment consultancy agency that
violates the provisions of Articles 18, 19, 20, 21, 22, 23, 24, 25 and 28
shall be penalized on one count or be concurrently administered a warning,
confisticated of the illegal gains and imposed a fine of more than RMB
10,000 Yuan less than RMB 100,000 Yuan; where the circumstances are serious,
the local securities control office(securities commission) should submit a
report to CSSCC and CSSCC shall impose a penalty of suspension or
nullification of the business qualification; where a crime has been
constituted, criminal liability shall be investigated according to law.
Article 35 Any securities operations agency or futures brokerage firm
that violates the provisions of Article 26 of these Measures shall be ordered
by the local securities control office(securities commission) to make a
rectification and concurrently administered a warning or imposed a fine of
more than RMB 10,000 Yuan less than RMB 50,000 Yuan.
Article 36 Any securities and futures investment consultant that
violates the provisions of Articles 18, 19, 20, 21, 22 and 24 of these
Measures or fails to fulfil the obligations of reporting to and annual
inspection by the competent securities department in pursuance of the
provisions of these Measures shall be penalized on one count or concurrently
administered a warning, confisticated of the illegal gains and imposed a
fine of more than RMB 10,000 Yuan less than RMB 30,000 Yuan; where the
circumstances are serious, the local securities control office(securities
commission) shall submit a report to CSSCC which shall impose a penalty of suspension or nullification of its business qualification;
where a crime
has been constituted, criminal liability shall be investigated according to
law.
Article 37 Any functionary of CSSCC or local securities control offices
(securities commissions) that neglects the duty, abuses power, indulges in
self-seeking misconduct constituting a crime shall be investigated of the
criminal liability; where a crime has not been constituted, administrative
sanctions shall be imposed according to law.
Chapter VI Supplementary Provision
Article 38 These Measures shall enter into force as of April 1, 1998.
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The State Administration of Foreign Exchange
Supplementary Reply of the State Administration of Foreign Exchange on Issues Concerning Administrative Penalties for Violation of
Provisions of Foreign Exchange Administration
HuiFa [1999] No.48
February 11, 1999
All subordinate administrations of the State Administration of Foreign Exchange (SAFE), the Departments of Foreign Exchange Administration
of Beijing and Chongqing:
To impose the penalties in cases in violation of laws and regulations on foreign exchange discovered during the examination, on December
25, 1998, SAFE issued the Circular on Issues Concerning Administrative Penalties for Violation of Provisions of Foreign Exchange
Administration, which clarifies the problems that should be paid attention to during the imposition of penalties for violation of
law and regulations on foreign exchange. However, the Penalty Decision and other materials submitted by some subordinate administrations
still reflect such problems as lack of evidence, abuse of penalty criteria and improper application of law. To safeguard the solemnity
of law enforcement for foreign exchange rectification and to successfully complete this examination, supplementary issues that should
attract enough attention in the process of conducting investigation and prosecution for violation of laws and regulations on foreign
exchange are hereby noticed as follows:
1.
Determining the nature of cases in violation of laws and regulations on foreign exchange, legal reference and penalty criteria
Procedures for Investigating and Handling Cases in Violation of Foreign Exchange Administration should be strictly implemented. Cases
of in violation of laws and regulations on foreign exchange should be classified and the penalties should be determined in accordance
with such public rules or regulations as the Regulations of the People’s Republic of China on Foreign Exchange Administration. Documents
coded HuiFa [1998] No.37, 43, 55 and 98 of the State Administration of Foreign Exchange are for internal reference for the penalty
decisions and should not be directly quoted for case classification and penalty decision. Fraudulent purchase of foreign exchange
through letters of credit or collection should be investigated and prosecuted as cases of false customs declaration. Enterprises
that fail to submit customs declaration forms for examination or fail to cancel them after verification through letters of credit
or collection should be punished in accordance with the penalty criteria stipulated in the document coded HuiFa [1998] No.98.
2.
Collection of confiscated fines
During this examination, a large majority of the businesses in violation of the regulations on foreign exchange are foreign trading
companies that serve as import agencies. Full collection of confiscated fines may affect local budgets to some extent. In view of
the consistency of the policy of turning in the confiscated fines in the foreign exchange examination, the proportion of the confiscated
fines to be turned in by local administrations (including sub local administrations) in this examination is hereby adjusted as follows:
50% is turned in to the State Administration of Foreign Exchange and then turned in to the state budget; the other 50% is turned
in to local budgets. The provisions in the document coded HuiFa [1998] No.107 of turning in the confiscated fines in full in this
examination should be terminated. Local administrations that have turned in the confiscated fines in full are kindly requested to
report the situation to the general administration in writing and the general administration will made a refund upon examination.
As for some industries that have special difficulties in turning in the confiscated fines in full within the prescribed time limit,
local administrations should handle strictly and report to the general administration as special cases. While reporting, reasons
should be stated and the financial statements be submitted. The deferred payment should only be granted upon the approval of the
general administration. The period for deferred payment should be no longer than 1 year.
3.
Handover of cases in violation of laws and regulations on foreign exchange
Cases in violation of laws and regulations on foreign exchange involving the evasion of customs duties or smuggling should be handed
over, after administrative penalties are made, to customs where the filing documents were signed to be investigated and punished
for duty evasion or smuggling. Cases in violation of laws and regulations on foreign exchange in which business units in the customs
declaration form belong to “Three Without Enterprises” or fake units should be directly handed over by local administrations of foreign
exchange in those areas to administrations of foreign exchange in areas where the foreign exchange was purchased or sold and be reported
to the general administration for file-keeping purpose.
4.
Treatment in case the main body in violation of laws and regulations on foreign exchange has disappeared.
In case that the suspected enterprise has disappeared and cannot be brought to justice in cases in violation of laws and regulations
on foreign exchange, local administrations should summarize and provide a detailed list, notify administrations of industry and commerce
to cancel the registration of the enterprise, instruct banks to stop offering foreign exchange service to it, and then properly end
the case. The detailed list should be submitted to the general administration for file-keeping purpose.
It is hereby notified.
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