On 10 October 2022, the State Administration for Market Regulation (SAMR) promulgated the revised Guidance on Regulating the Administrative Penalties of Market Regulation, listing "no subjective fault proved by evidence" as a circumstance that would exempt an entity from punishment and adding the provision of "no punishment for first offence". The revised guidance adds the principles of fairness and justice to the basic principles for the purpose of preventing overly severe or unfair punishments for these kinds of cases.
With respect to the specific provisions, article 11 of the new guidance specifies that "[if] unless otherwise stipulated by laws and administrative regulations, the party concerned has sufficient evidence to prove that there is no subjective fault", no punishment shall be imposed. Article 12 also adds the provision that:
no punishment shall be imposed on persons who violate laws for the first time and cause minor consequences and make corrections in a timely manner. A market regulatory authority may formulate a list of exemptions from punishment for minor violations in accordance with the law and make dynamic adjustments thereto in accordance with the relevant provisions.
The newly revised Administrative Punishment Law was officially implemented on 15 July 2021, making new provisions on no punishment, lighter or mitigated punishment, heavier punishment. On 17 August 2022, the General Office of the State Council promulgated the Opinions on Further Standardising the Formulation and Management of the Benchmark for Administrative Discretion, requiring that the principles of penalty in line with offence and a combination of severity and leniency shall be observed when imposing administrative penalties to avoid undue severity and obvious unfairness. The revision to the guiding opinions is an important measure for the SAMR to implement the provisions of the new law and the requirements of the State Council.
For further information on this topic please contact Hao Zhan or Ying Song at AnJie Law Firm by telephone (+86 10 8567 5988) or email ([email protected] or [email protected]). The AnJie Law Firm website can be accessed at www.anjielaw.com.