The promulgation of the ＂Regulations on Administrative Punishment Procedures for Tobacco Monopoly＂ will come into force on July 20th.
CCTV News:According to the WeChat official account news of "Gongxin Weibo" WeChat, in order to standardize the implementation of tobacco monopoly administrative punishment, ensure and supervise the tobacco monopoly bureau to effectively implement administrative management, safeguard the national tobacco monopoly system, and protect the legitimate rights and interests of citizens, legal persons or other organizations, according to the Administrative Punishment Law of the People’s Republic of China, the Tobacco Monopoly Law of People’s Republic of China (PRC), the Law on the Protection of Minors in People’s Republic of China (PRC) and the Regulations for the Implementation of the Tobacco Monopoly Law of People’s Republic of China (PRC), the Ministry of Industry and Information Technology recently revised and promulgated. These Provisions shall apply to the implementation of administrative penalties by tobacco monopoly bureaus at all levels and shall come into force as of July 20, 2023. On January 21, 2010, the Provisions on the Procedures for Administrative Punishment of Tobacco Monopoly was abolished at the same time.
Provisions on administrative punishment procedures of tobacco monopoly
(Promulgated by Decree No.61 of the Ministry of Industry and Information Technology on May 16, 2023, and implemented as of July 20, 2023. )
Chapter I General Principles
the first In order to standardize the implementation of the administrative punishment of tobacco monopoly, ensure and supervise the tobacco monopoly bureau to effectively implement administrative management, safeguard the national tobacco monopoly system, and protect the legitimate rights and interests of citizens, legal persons or other organizations, these Provisions are formulated in accordance with the Administrative Punishment Law of the People’s Republic of China, the Tobacco Monopoly Law of People’s Republic of China (PRC), the Law on the Protection of Minors in People’s Republic of China (PRC) and the Regulations for the Implementation of the Tobacco Monopoly Law of People’s Republic of China (PRC).
the second These Provisions shall apply to the implementation of administrative punishment by tobacco monopoly bureaus at all levels.
Article The tobacco monopoly bureau shall follow the following principles when implementing administrative punishment:
(a) based on facts, which are equivalent to the facts, nature, circumstances and social harm of the illegal act;
(2) The subject is qualified, the procedures are legal and the procedures are complete;
(3) Combining punishment with education to educate citizens, legal persons or other organizations to consciously abide by the law;
(four) fair, open and transparent, and protect the legitimate rights and interests of the parties.
Article 4 Citizens, legal persons or other organizations have the right to state and defend the administrative punishment given by the Tobacco Monopoly Bureau according to law; Those who refuse to accept the administrative punishment have the right to apply for administrative reconsideration or bring an administrative lawsuit according to law.
Citizens, legal persons or other organizations have the right to claim compensation according to law if they are harmed by the illegal administrative punishment given by the Tobacco Monopoly Bureau.
Article 5 Tobacco monopoly bureaus at all levels shall establish and improve the internal supervision system of administrative punishment to ensure the implementation of administrative punishment according to law.
Chapter II Jurisdiction and Application
Article 6 Cases of tobacco monopoly administrative punishment shall be under the jurisdiction of the tobacco monopoly bureau at or above the county level where the illegal act occurred.
Article 7 The tobacco monopoly bureau at the county level shall have jurisdiction over cases within its jurisdiction.
The municipal tobacco monopoly bureau has jurisdiction over cases that have a significant impact within its jurisdiction.
The tobacco monopoly bureaus of provinces, autonomous regions and municipalities directly under the Central Government have jurisdiction over major and complex cases within their respective jurisdictions.
The State Tobacco Monopoly Bureau has jurisdiction over cases with great influence throughout the country.
Article 8 Where more than two tobacco monopoly bureaus have jurisdiction, it shall be under the jurisdiction of the tobacco monopoly bureau that filed the case first.
Disputes over jurisdiction shall be settled through consultation; if negotiation fails, they shall be reported to the common tobacco monopoly bureau at the next higher level for designation of jurisdiction; It can also be directly designated by the common tobacco monopoly bureau at the next higher level.
Article 9 If the Tobacco Monopoly Bureau finds that the case under investigation should be under the jurisdiction of other tobacco monopoly bureaus, it shall transfer the case to the tobacco monopoly bureau with jurisdiction.
If the transferred tobacco monopoly bureau has any objection to the jurisdiction, it shall report to the common tobacco monopoly bureau at the next higher level for designation of jurisdiction, and shall not transfer it by itself.
Article 10 The superior tobacco monopoly bureau can directly investigate and deal with cases under the jurisdiction of the subordinate tobacco monopoly bureau.
If the Tobacco Monopoly Bureau considers that the case has a significant impact, it may report it to the Tobacco Monopoly Bureau at the next higher level for jurisdiction.
Article 11 If the tobacco monopoly bureau with jurisdiction cannot or should not be under jurisdiction due to special reasons, it shall be directly under the jurisdiction of the tobacco monopoly bureau at the next higher level or designated by other tobacco monopoly bureaus.
Article 12 The Tobacco Monopoly Bureau may request assistance from other tobacco monopoly bureaus or relevant authorities for the implementation of administrative punishment, and shall issue a letter of assistance. If the assistance matters fall within the scope of the functions and powers of the requested tobacco monopoly bureau or the relevant authorities, it shall be assisted according to law. Need postal services, telecommunications, banking, transportation management and other units to assist and cooperate, should be handled in accordance with the relevant provisions of the state.
Article 13 If the Tobacco Monopoly Bureau finds that the cases investigated should be under the jurisdiction of other administrative organs, it shall transfer them to other administrative organs according to law.
If an illegal act is suspected of committing a crime, the Tobacco Monopoly Bureau shall promptly transfer the case to judicial organs and investigate criminal responsibility according to law, and shall not substitute administrative punishment for criminal punishment.
The Tobacco Monopoly Bureau shall strengthen coordination and cooperation with judicial organs, establish and improve the case transfer system, strengthen the transfer and reception of evidence materials, and improve the information notification mechanism for case handling.
Article 14 When implementing administrative punishment, the Tobacco Monopoly Bureau shall order the parties concerned to correct or make corrections within a time limit.
If a party has illegal income, it shall be confiscated, except for those that should be refunded according to law. Illegal income refers to the money obtained from the implementation of illegal acts.
Article 15 For the same illegal act of a party, no administrative penalty of more than two fines shall be imposed. If the same illegal act violates multiple legal norms and should be fined, it shall be punished in accordance with the provisions of high fines.
Article 16 Minors under the age of fourteen who commit illegal acts shall not be given administrative punishment and shall be ordered to be disciplined by their guardians; If a minor who has reached the age of 14 but under the age of 18 commits an illegal act, he shall be given a lighter or mitigated administrative punishment.
Article 17 If a mentally ill person or a mentally disabled person commits an illegal act when he cannot identify or control his own behavior, he shall not be given administrative punishment, but his guardian shall be ordered to strictly guard and treat him. Intermittent mental patients who commit illegal acts when they are mentally normal shall be given administrative punishment. If a mental patient or mentally handicapped person who has not completely lost the ability to identify or control his own behavior commits an illegal act, he may be given a lighter or mitigated administrative punishment.
Article 18 In any of the following circumstances, the party concerned shall be given a lighter or mitigated administrative punishment:
(a) take the initiative to eliminate or mitigate the harmful consequences of illegal acts;
(2) Being coerced or tricked into committing an illegal act by others;
(3) voluntarily confessing the illegal acts that have not been mastered by the Tobacco Monopoly Bureau;
(four) with the Tobacco Monopoly Bureau to investigate and deal with illegal acts with meritorious service;
(five) other laws, regulations and rules shall be given a lighter or mitigated administrative punishment.
Article 19 If the illegal act is minor and corrected in time, and no harmful consequences are caused, no administrative punishment shall be imposed. Those who violate the law for the first time and have minor harmful consequences and make corrections in time may not be given administrative punishment.
If the parties have enough evidence to prove that there is no subjective fault, no administrative punishment shall be imposed. Where laws and administrative regulations provide otherwise, such provisions shall prevail.
If the illegal acts of the parties are not given administrative punishment according to law, the Tobacco Monopoly Bureau shall educate the parties.
Article 20 The Tobacco Monopoly Bureau shall formulate administrative penalty discretion standards according to law and standardize the exercise of administrative penalty discretion. The benchmark of administrative penalty discretion shall be announced to the public.
Chapter III General Provisions
Article 21 The Tobacco Monopoly Bureau shall publicize the information on the implementing organs, filing basis, implementation procedures and relief channels of administrative punishment.
Article 22 Administrative punishment shall be implemented by law enforcement officers with administrative law enforcement qualifications in the Tobacco Monopoly Bureau. The number of law enforcement personnel shall not be less than 2, except as otherwise provided by law.
Law enforcement personnel should enforce the law in a civilized manner and respect and protect the legitimate rights and interests of the parties.
Article 23 Law enforcement officers who have a direct interest in the case or have other relations that may affect fair law enforcement should take the initiative to withdraw.
If the parties consider that law enforcement officers have a direct interest in the case or have other relations that may affect the impartial law enforcement, they have the right to apply for withdrawal.
If a party applies for withdrawal, the Tobacco Monopoly Bureau shall examine it according to law. The withdrawal of law enforcement personnel shall be decided by the person in charge of the Tobacco Monopoly Bureau; The withdrawal of the person in charge of the tobacco monopoly bureau shall be decided by the tobacco monopoly bureau at the next higher level. Don’t stop the investigation until the decision is made.
Article 24 Before making a decision on administrative punishment, the Tobacco Monopoly Bureau shall inform the parties of the contents, facts, reasons and basis of the administrative punishment to be made, and inform the parties of their rights to state, defend themselves and request a hearing according to law, as well as the time limit for exercising their rights.
Article 25 The parties have the right to make statements and defend themselves. The tobacco monopoly bureau must fully listen to the opinions of the parties concerned and review the facts, reasons and evidence put forward by the parties concerned; If the facts, reasons or evidence put forward by the parties are established, the Tobacco Monopoly Bureau shall adopt them.
The tobacco monopoly bureau shall not give heavier punishment for the statements and defenses of the parties.
Article 26 Evidence includes:
(1) Documentary evidence;
(2) Physical evidence;
(3) Audio-visual materials;
(4) Electronic data;
(5) Testimony of witnesses;
(6) statements of the parties;
(7) Appraisal opinions;
(8) Records of inquests and on-site records.
The evidence must be verified before it can be used as the basis for determining the facts of the case.
Evidence obtained by illegal means shall not be used as the basis for ascertaining the facts of a case.
Article 27 The Tobacco Monopoly Bureau shall, in accordance with the law, record the whole process of the initiation, investigation and evidence collection, examination, decision, delivery and execution of administrative punishment in the form of words, audio and video, and keep them on file.
Article 28 The decision on administrative punishment with certain social impact shall be made public according to law.
If the public decision on administrative punishment is changed, revoked, confirmed illegal or invalid according to law, the Tobacco Monopoly Bureau that made the decision on administrative punishment shall withdraw the information of the decision on administrative punishment within 3 days and publicly explain the reasons.
Article 29 The Tobacco Monopoly Bureau and its staff shall keep confidential the state secrets, business secrets or personal privacy they know in the process of implementing administrative punishment.
Chapter IV Summary Procedure
Article 30 If the illegal facts are conclusive and there is a legal basis, and the citizens are given an administrative penalty of less than 200 yuan, or the legal person or other organization is given a fine of less than 3,000 yuan or a warning, the law enforcement officers may make a decision on the administrative penalty on the spot.
Article 31 If a law enforcement officer makes a decision on administrative punishment on the spot according to law, he shall take the initiative to show his law enforcement certificate to the party concerned, fill in a written decision on tobacco monopoly administrative punishment with a predetermined format and a unified number, and hand it over to the party concerned for signature on the spot. If the party refuses to sign for it, the law enforcement officer shall indicate the situation in the decision on administrative punishment.
The written decision on administrative punishment of tobacco monopoly as mentioned in the preceding paragraph shall specify the basic information of the parties, illegal acts, the types and basis of administrative punishment, the amount of fines, the payment method and time limit, time and place, the ways and time limit for applying for administrative reconsideration, bringing an administrative lawsuit and the name of the tobacco monopoly bureau, and shall be signed by law enforcement officers.
If a law enforcement officer makes a decision on administrative punishment on the spot, it shall report it to the Tobacco Monopoly Bureau for the record within 2 days. After receiving the filing materials, the Tobacco Monopoly Bureau shall conduct timely examination and file in accordance with the provisions. If mistakes are found, they should be corrected in time.
Chapter V General Procedures
Section 1 Legislation
Article 32 In addition to the administrative punishment that can be made on the spot as stipulated in Article 30 of these Provisions, if the Tobacco Monopoly Bureau finds that citizens, legal persons or other organizations have acts that should be given administrative punishment according to law, it must conduct a comprehensive, objective and impartial investigation and collect relevant evidence; When necessary, inspections may be conducted in accordance with the provisions of laws and regulations.
In line with the filing standards, the Tobacco Monopoly Bureau shall file a case in a timely manner.
Article 33 The Tobacco Monopoly Bureau shall, within 7 days from the date of discovering illegal clues or receiving reports, materials transferred by other organs or assigned by higher authorities, verify and decide whether to file a case; If the case is serious and complicated and it is necessary to extend the time limit for filing a case, it shall be approved by the person in charge of the Tobacco Monopoly Bureau and inform the parties in writing.
Article 34 Under any of the following circumstances, the Tobacco Monopoly Bureau shall file an investigation:
(a) after preliminary investigation, grasp certain illegal facts, should be given administrative punishment according to law;
(two) according to the illegal facts and evidence provided by the informants, the case should be investigated according to law;
(three) have mastered the clues of the illegal activities of the parties, and there is a suspicion of illegal activities that need to be investigated;
(four) cases designated by the superior tobacco monopoly bureau;
(five) other circumstances that should be investigated according to law.
Article 35 For filing a case, the undertaker shall fill in the filing report form and attach relevant materials for handling the case, and report it to the person in charge of the Tobacco Monopoly Bureau for examination and approval. The date approved by the person in charge of the Tobacco Monopoly Bureau is the date of filing the case.
The tobacco monopoly bureau with jurisdiction shall immediately investigate and deal with the illegal activities that are taking place, and shall go through the filing formalities according to law within 7 days after investigation.
Article 36 Under any of the following circumstances, the Tobacco Monopoly Bureau shall not file a case; If a case has been filed, it shall be revoked:
(a) the illegal act exceeds the time limit for administrative punishment prescribed by law;
(2) Not under the jurisdiction of this organ;
(three) the illegal facts are not established or the illegal acts are minor and may not be subject to administrative punishment according to law;
(4) Other circumstances in which the case is not put on file as stipulated by laws and administrative regulations.
If the case is not filed or revoked, it shall fill in the report form of not filing or revoking the case and report it to the person in charge of the Tobacco Monopoly Bureau for approval. Cases under the jurisdiction of other administrative organs shall be transferred by the Tobacco Monopoly Bureau to other administrative organs within 7 days.
Article 37 If the Tobacco Monopoly Bureau decides not to file a case that has been reported or transferred by other organs, it shall inform the named informant or the transfer organ in writing.
The Tobacco Monopoly Bureau shall file the case that it will not be filed.
Section 2 Investigation and evidence collection
Article 38 Law enforcement officers shall take the initiative to show their law enforcement certificates to the parties or relevant personnel when investigating or inspecting. The parties concerned or relevant personnel have the right to require law enforcement officers to show their law enforcement certificates. If law enforcement officers do not produce their law enforcement certificates, the parties concerned or relevant personnel have the right to refuse to accept the investigation or inspection.
The parties concerned or relevant personnel shall truthfully answer the inquiry and assist in the investigation or inspection, and shall not refuse or obstruct it. A record shall be made of the inquiry or inspection.
Article 39 If law enforcement officers need to consult and copy contracts, invoices, account books, bills, records, documents, business correspondence and other materials related to illegal activities from relevant units, they shall produce a letter of assistance issued by the Tobacco Monopoly Bureau at or above the county level.
Law enforcement officers shall collect and obtain the original documents related to the case as evidence; If it is really difficult to obtain the original evidence, the original can be copied, copied, extracted and photographed, and the original evidence holder can sign or otherwise confirm that the copy, copy, extract and photo are consistent with the original.
Article 40 The extract certificate shall be counted on the spot, and a list of items shall be issued and signed by law enforcement officers and parties concerned or confirmed by other means. If the party refuses to confirm or is not present, there shall be more than 2 witnesses present to confirm; If the number of witnesses is less than 2 or refuses to confirm, law enforcement officers shall indicate the situation on the list of articles and sign it.
Article 41 Law enforcement officers should collect the original carrier of audio-visual materials. If it is difficult to collect the original carrier, you can collect copies and indicate the production method, production time and producer. Audio-visual materials shall be accompanied by written records of relevant words.
Article 42 Law enforcement officers should collect the original carrier of electronic data.
If it is difficult to collect the original carrier of electronic data, electronic data can be extracted. When extracting electronic data, law enforcement officers shall make a written record and attach a list of electronic data, which shall be signed by the holder of the electronic data or confirmed by other means.
If it is difficult to collect electronic data evidence in accordance with the provisions of the preceding two paragraphs, the relevant evidence can be fixed by printing, photographing or video recording, with a description of the situation, signed by the electronic data holder or confirmed by other means.
If the holder refuses to confirm or is not present, there shall be more than 2 witnesses present to confirm; If there are less than 2 witnesses or refuse to confirm, law enforcement officers shall indicate the situation and sign it.
Article 43 Law enforcement officers shall interrogate the parties and witnesses separately, explain to them the rights they enjoy according to law and the legal responsibilities of providing perjury or concealing evidence, and make inquiry records.
The record of inquiry shall be checked by the person being questioned; If the person questioned has difficulty in reading, he shall read it out to him. After verification, the interviewee shall sign the record page by page or confirm it by other means. If there are errors or omissions in the transcript, the person questioned shall be allowed to correct or supplement it, and the altered part shall be signed by the person questioned or confirmed by other means; If the person questioned refuses to confirm, the law enforcement officer shall indicate the situation in the record and sign it.
Article 44 Need to identify the authenticity of tobacco monopoly products and other special matters, the Tobacco Monopoly Bureau shall entrust the the State Council market supervision and management department or the tobacco quality inspection agency designated by the market supervision and management department of the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government to implement, and issue a letter of entrustment stating the entrusted identification matters and related materials.
Article 45 When inspecting the scene of the suspected illegal act, law enforcement officers shall make a record of the scene and submit it to the parties for signature or confirm it by other means. If the party refuses to confirm or is not present, there shall be more than 2 witnesses present to confirm; If the number of witnesses is less than 2 or refuses to confirm, the law enforcement officers shall indicate the situation and sign the record on the spot. Personnel involved in the investigation shall not be witnesses.
Article 46 In the case that the evidence may be lost or difficult to obtain in the future, with the approval of the person in charge of the tobacco monopoly bureau, the evidence related to the suspected illegal act may be registered and preserved in advance according to law.
The tobacco monopoly bureau shall issue a notice of advance registration and preservation of evidence, which shall be signed by law enforcement officers and the parties or confirmed by other means, and submitted to the parties and the tobacco monopoly bureau respectively. If the party refuses to confirm or is not present, there shall be more than 2 witnesses present to confirm; If the number of witnesses is less than 2 or refuses to confirm, law enforcement officers shall indicate the situation and sign on the notice of advance registration and preservation.
During the period of advance registration and preservation, no one may destroy or transfer the evidence registered and preserved in advance.
Article 47 For the evidence registered and preserved in advance according to law, the following measures shall be taken within 7 days according to the situation:
(1) Take evidence preservation measures such as copying, photographing and video recording in time;
(two) the need for identification, timely sent to the relevant agencies to identify and inform the parties of the time required;
(three) if it should be transferred to other relevant departments for handling according to law, make a transfer decision and inform the parties in writing;
(four) if the illegal facts are not established, or the administrative punishment can not be imposed according to law, it is decided to lift the pre-registration and preservation measures and inform the parties concerned.
Article 48 In the course of investigation, law enforcement officers shall report to the person in charge of the Tobacco Monopoly Bureau in a timely manner to decide whether to investigate the suspected illegal acts together.
Article 49 At the end of the investigation, law enforcement officers shall submit the case handling approval form. The case handling approval form includes the basic information of the parties, facts and evidence verified through investigation, qualitative opinions on the suspected illegal acts, handling suggestions and their legal basis.
Section III Review and Decision
Article 50 The monopoly law enforcement agency of the Tobacco Monopoly Bureau shall, before submitting the case handling approval form to the person in charge of this Council for examination and decision, first conduct legal review and sign opinions on the qualitative opinions, handling suggestions and legal basis of the suspected illegal acts by the legal affairs office of this Council or full-time legal staff. No decision shall be made without legal examination or examination.
Personnel engaged in the legal review of administrative punishment decisions for the first time in the Tobacco Monopoly Bureau shall obtain legal professional qualifications through the national unified legal professional qualification examination.
Article 51 The person in charge of the Tobacco Monopoly Bureau shall conduct a comprehensive review of the case handling approval form and legal review opinions, and make a decision on whether to give administrative punishment according to law. For cases to be transferred to judicial organs, the person in charge of the Tobacco Monopoly Bureau shall make a decision on whether to approve or disapprove the transfer within 3 days.
Article 52 The person in charge of the tobacco monopoly bureau shall make the following decisions according to the different circumstances of the case:
(a) there are illegal acts that should be subject to administrative punishment, and make a decision on administrative punishment according to the seriousness and specific circumstances;
(two) if the illegal act is minor, administrative punishment may not be imposed according to law;
(three) the illegal facts can not be established, no administrative punishment;
(four) if the illegal act is suspected of committing a crime, it shall be transferred to judicial organs according to law.
If the circumstances are complicated or major illegal acts are given administrative punishment, the person in charge of the Tobacco Monopoly Bureau shall make a collective discussion and decision.
Article 53 When implementing administrative punishment, the Tobacco Monopoly Bureau shall make a written decision on administrative punishment. The written decision on administrative punishment shall specify the following items:
(1) Basic information such as the name and address of the party concerned;
(2) Facts and evidence in violation of laws, regulations and rules;
(three) the types and basis of administrative punishment;
(four) the way and time limit for the performance of administrative punishment;
(five) the way and time limit for applying for administrative reconsideration and bringing an administrative lawsuit;
(six) the name and date of the tobacco monopoly bureau that made the decision on administrative punishment.
The written decision on administrative punishment shall be stamped with the seal of the Tobacco Monopoly Bureau that made the decision on administrative punishment.
Article 54 The Tobacco Monopoly Bureau shall make a decision on administrative punishment within 90 days from the date of filing the case of administrative punishment. If it cannot be made within 90 days, it may be extended for 30 days with the approval of the person in charge of the tobacco monopoly bureau. If the case is serious, complicated or there are other special circumstances, and a decision cannot be made after the extension, it shall be decided by the tobacco monopoly bureau at the next higher level whether to continue the extension, and if it is decided to continue the extension, it shall also determine the reasonable time limit for the extension. If the extension is decided, the parties concerned shall be informed in writing of the extension period and reasons.
In the process of handling a case, the time for hearing, appraisal and announcement shall not be included in the time limit specified in the preceding paragraph.
According to the provisions of article forty-eighth of the decision to investigate together, with the approval of the person in charge of the tobacco monopoly bureau, the time limit for making the decision on administrative punishment can be recalculated.
Article 55 The decision on tobacco monopoly administrative punishment shall be delivered to the parties on the spot after the announcement; If the party concerned is not present, the Tobacco Monopoly Bureau shall, within 7 days, serve the decision on administrative punishment on the party concerned in accordance with the Civil Procedure Law of People’s Republic of China (PRC) and these Provisions:
(1) If it is served directly to the party concerned, the party concerned or his adult family members living together shall indicate the date of receipt on the service receipt and sign, seal or confirm it by other means. The date of receipt indicated on the service receipt by the parties concerned or their adult family members living together is the date of delivery;
(two) when served directly, if the addressee or his adult family refuses to accept the service documents, the lien shall be applied according to law;
(three) direct delivery is difficult, you can entrust the local tobacco monopoly bureau to serve on your behalf, or by mail. If it is delivered by post, the date of receipt indicated on the receipt shall be the date of delivery;
(4) If the whereabouts of the person to be served are unknown or cannot be served by other means specified in this article, it may be served by public announcement. The Tobacco Monopoly Bureau shall make an announcement in the publicly issued newspaper in its place, and may also post an announcement on the bulletin board of the original residence of the addressee or the Tobacco Monopoly Bureau. If the Tobacco Monopoly Bureau has a website open to the public, it can make an announcement on the website at the same time. If the announcement is served, it shall be deemed to have been served after 30 days from the date of issuing the announcement. When the announcement is served, the reason and process shall be indicated in the case file.
If the parties agree and sign the confirmation letter, the Tobacco Monopoly Bureau may serve the administrative penalty decision on the parties by fax or e-mail.
Article 56 Before making a decision on administrative punishment, the Tobacco Monopoly Bureau and its law enforcement officers shall not make a decision on administrative punishment without informing the parties of the contents, facts, reasons and basis of the proposed administrative punishment according to law, or refusing to listen to the statements and arguments of the parties; Unless the parties explicitly waive their right to make statements or defend themselves.
Chapter VI Hearing Procedure
Article 57 The Tobacco Monopoly Bureau intends to make the following administrative punishment decision, and shall inform the parties that they have the right to request a hearing. If the parties request a hearing, the Tobacco Monopoly Bureau shall organize a hearing:
(a) a fine of more than 10 thousand yuan;
(2) Confiscating a relatively large amount of illegal income or illegal tobacco monopoly products;
(three) to cancel the qualification to engage in tobacco monopoly business and revoke the license;
(four) ordered to stop production and business, ordered to close;
(5) Other heavier administrative penalties;
(six) other circumstances stipulated by laws, regulations and rules.
The provincial tobacco monopoly bureau may, in combination with local conditions, adjust and determine the standard of the amount of fines, confiscation of illegal income or illegal tobacco monopoly products within its administrative area, and report it to the State Tobacco Monopoly Bureau for approval before implementation.
Article 58 The Tobacco Monopoly Bureau shall not give a heavier punishment because the parties request a hearing.
The parties concerned shall not bear the expenses for organizing the hearing by the Tobacco Monopoly Bureau.
Article 59 If a party requests a hearing, it shall apply within 5 days after the Tobacco Monopoly Bureau informs him of his rights.
The parties may apply for a hearing in writing or orally. Where an oral application is made, the Tobacco Monopoly Bureau shall record the basic information of the applicant, the main reasons for applying for a hearing and the application time on the spot, and shall be signed by the parties concerned or confirmed by other means.
Article 60 The hearing shall be held in public, allowing the public to attend, except those involving state secrets, commercial secrets or personal privacy which shall be kept confidential according to law.
Article 61 If the Tobacco Monopoly Bureau decides to organize a hearing, it shall hold a hearing within 20 days from the date of receiving the application for hearing, and notify the parties and relevant personnel in writing of the time and place of the hearing 7 days before the hearing, and report to the Tobacco Monopoly Bureau at the next higher level.
Article 62 The parties may attend the hearing in person or entrust one or two persons as agents.
Article 63 The presiding hearer shall be appointed by the Tobacco Monopoly Bureau. The presiding hearer shall meet the following conditions:
(1) Law enforcement personnel who are not investigating the case;
(2) Persons who are not required to be avoided as stipulated in Article 23 of these Provisions.
If the host does not meet the requirements specified in the preceding paragraph, he shall voluntarily withdraw. If the parties or their agents think that the host has a direct interest in the case, they have the right to apply for his withdrawal.
Article 64 If the parties and their agents refuse to attend the hearing without justifiable reasons or withdraw from the hearing without permission, it shall be deemed as a waiver of the right to the hearing and the Tobacco Monopoly Bureau shall terminate the hearing.
Article 65 The hearing shall be conducted according to the following procedures:
(a) the host checks the identity of the parties or their agents and other participants in the hearing, explains the cause of action, informs the parties or their agents of their rights and obligations, announces the hearing discipline, asks the parties or their agents whether to apply for the withdrawal of the host, and announces the beginning of the hearing;
(two) by law enforcement officers to point out the facts of the illegal parties, produce relevant evidence, put forward suggestions and basis for punishment;
(three) the parties or their agents to make statements and defenses;
(4) If there is a third person, the third person or his agent shall make statements and defenses;
(five) law enforcement officers and the parties or their agents debate and cross-examine;
(six) the parties or their agents to make a final statement and defense;
(7) If there is a third person, the third person or his agent shall make the final statement;
(eight) law enforcement officers to make a final statement;
(nine) the host announced the end of the hearing.
The hearing shall be recorded and signed by the host and recorder. The transcripts of the hearing shall be signed or confirmed by other means after being checked by the parties or their agents; If the parties or their agents refuse to confirm, the host shall indicate the situation and sign it.
Article 66 After the hearing, the Tobacco Monopoly Bureau shall make a decision according to the transcripts of the hearing and in accordance with the provisions of Article 52 of these Provisions.
Chapter VII Execution of Administrative Punishment
Article 67 After the decision on administrative punishment is made, the parties concerned shall fully perform it within the time limit specified in the decision on administrative punishment.
If the fine is not paid at the due date, the Tobacco Monopoly Bureau may impose a fine of 3% of the fine every day, and the amount of the fine shall not exceed the amount of the fine.
If the parties have real financial difficulties and need to postpone or pay the fine by installments, they may postpone or pay the fine by installments upon the application of the parties and the approval of the Tobacco Monopoly Bureau.
Article 68 If citizens, legal persons or other organizations are disqualified from engaging in tobacco monopoly business according to law, the original issuing authority shall promptly withdraw the tobacco monopoly license and go through the formalities for cancellation of the tobacco monopoly license according to law; If it cannot be recovered due to objective reasons, the original issuing authority shall indicate the situation, cancel the tobacco monopoly license according to law and announce it to the public.
Article 69 If a party refuses to accept the decision on administrative punishment made by the Tobacco Monopoly Bureau, he may, within 60 days from the date of receiving the decision on administrative punishment, apply for reconsideration to the tobacco monopoly bureau at the next higher level; The parties may also bring an administrative lawsuit directly to the people’s court within 15 days from the date of receiving the decision on administrative punishment.
During the period of administrative reconsideration or administrative litigation, unless otherwise provided by law, the execution of the decision on administrative punishment of tobacco monopoly shall not be stopped.
If a party applies for administrative reconsideration or brings an administrative lawsuit, the amount of the additional fine shall not be counted during the administrative reconsideration or administrative lawsuit.
Article 70 If a party neither applies for administrative reconsideration nor brings an administrative lawsuit to the people’s court within the time limit, nor complies with the decision on administrative punishment, the Tobacco Monopoly Bureau that made the decision on administrative punishment may apply to the people’s court for compulsory execution in accordance with the provisions of the Administrative Enforcement Law of the People’s Republic of China.
Article 71 If a party neither brings an administrative lawsuit against the administrative reconsideration decision of the reconsideration organ to maintain the administrative penalty nor complies with the administrative reconsideration decision within the time limit, the Tobacco Monopoly Bureau that initially made the administrative penalty shall apply to the people’s court for compulsory execution in accordance with the provisions of the Administrative Enforcement Law of the People’s Republic of China.
Article 72 If a party neither brings an administrative lawsuit against the administrative reconsideration decision of the reconsideration organ to change the administrative penalty nor complies with the administrative reconsideration decision within the time limit, the reconsideration organ shall apply to the people’s court for compulsory execution in accordance with the provisions of the Administrative Compulsory Law of the People’s Republic of China.
Article 73 For the tobacco monopoly products seized according to law, if the parties cannot be found within 60 days from the date when the Tobacco Monopoly Bureau takes measures such as posting notices and issuing announcements, with the approval of the person in charge of the Tobacco Monopoly Bureau, measures such as selling off can be taken, and the proceeds from the sale can be turned over to the state treasury.
Article 74 Tobacco products seized in accordance with the law shall not be listed and circulated. If the tobacco monopoly bureau takes measures such as destruction, it shall comply with the relevant provisions of the state and be approved by the tobacco monopoly bureau at the next higher level.
Article 75 Except for the fines collected on the spot in accordance with Articles 68 and 69 of the Administrative Punishment Law of the People’s Republic of China, the tobacco monopoly bureau and its law enforcement officers who have made the decision on administrative punishment shall not collect the fines themselves.
All illegal gains from fines, sales proceeds and confiscation shall be turned over to the state treasury, and no unit or individual may intercept, privately divide or privately divide them in disguised form.
Chapter VIII Law Enforcement Supervision
Article 76 The legal office of the tobacco monopoly bureau at a higher level or full-time legal staff shall regularly check the administrative punishment cases handled by the tobacco monopoly bureau at a lower level. The problems found in the evaluation should be pointed out in time.
Article 77 The superior tobacco monopoly bureau has the right to re-examine the administrative decision made by the subordinate tobacco monopoly bureau in accordance with these Provisions.
If the superior tobacco monopoly bureau finds that the administrative decision of the subordinate tobacco monopoly bureau is indeed wrong, it has the right to change or cancel the decision, or order the subordinate tobacco monopoly bureau to make a new decision.
Article 78 For the correction decision made by the superior tobacco monopoly bureau, the subordinate tobacco monopoly bureau shall comply with it and report the implementation in a timely manner.
Article 79 The legal institution or full-time legal staff of the Tobacco Monopoly Bureau may supervise the legality of the administrative punishment cases handled by the monopoly law enforcement agencies of this bureau.
Article 80 The Tobacco Monopoly Bureau shall establish and improve the supervision system for administrative punishment. The legal office of the tobacco monopoly bureau at a higher level shall regularly organize the evaluation and assessment of administrative law enforcement of the tobacco monopoly bureau at a lower level, strengthen the supervision and inspection of administrative punishment, and standardize and guarantee the implementation of administrative punishment.
The tobacco monopoly bureau shall accept social supervision when implementing administrative punishment. Citizens, legal persons or other organizations have the right to appeal or report acts of administrative punishment imposed by the Tobacco Monopoly Bureau; The Tobacco Monopoly Bureau shall carefully examine it, and if it finds any mistakes, it shall take the initiative to correct them.
Chapter IX Legal Liability
Article 81 The Tobacco Monopoly Bureau shall, under any of the following circumstances, order it to make corrections, and the directly responsible person in charge and other directly responsible personnel shall be punished according to law:
(a) there is no legal basis for administrative punishment;
(two) to change the type and scope of administrative punishment without authorization;
(three) in violation of the statutory administrative punishment procedures;
(four) illegally entrust other units or individuals to implement administrative punishment;
(five) law enforcement officers did not obtain law enforcement certificates.
If the Tobacco Monopoly Bureau fails to file a case that meets the filing criteria in time, it shall be dealt with in accordance with the provisions of the preceding paragraph.
Article 82 If the Tobacco Monopoly Bureau collects fines by itself in violation of the provisions, it shall be ordered by the tobacco monopoly bureau at a higher level to make corrections, and the directly responsible person in charge and other directly responsible personnel shall be punished according to law.
Article 83 Where the Tobacco Monopoly Bureau intercepts, privately distributes or disguises fines, sales proceeds, confiscated illegal income or tobacco monopoly products, it shall be recovered by the financial department or the relevant authorities, and the directly responsible person in charge and other directly responsible personnel shall be punished according to law; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law.
If a law enforcement officer takes advantage of his position to ask for or accept other people’s property and take the collected fine for himself, which constitutes a crime, he shall be investigated for criminal responsibility according to law; If the circumstances are minor and do not constitute a crime, they shall be punished according to law.
Article 84 If the Tobacco Monopoly Bureau illegally implements inspection and other law enforcement measures, causing damage to citizens’ personal or property and losses to legal persons or other organizations, it shall make compensation according to law; The directly responsible person in charge and other directly responsible personnel shall be punished according to law; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law.
Article 85 The Tobacco Monopoly Bureau refuses to transfer cases that should be transferred to judicial organs for criminal responsibility according to law, and replaces criminal punishment with administrative punishment, the tobacco monopoly bureau at a higher level shall order it to make corrections, and the directly responsible person in charge and other directly responsible personnel shall be punished according to law; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law.
Article 86 If the Tobacco Monopoly Bureau fails to stop and punish illegal acts that should be stopped and punished, resulting in damage to the legitimate rights and interests, public interests and social order of citizens, legal persons or other organizations, the directly responsible person in charge and other directly responsible personnel shall be punished according to law; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law.
Chapter X Supplementary Provisions
Article 87 These Provisions shall apply to foreigners, stateless persons and foreign organizations that violate the order of tobacco monopoly management in People’s Republic of China (PRC) and should be given administrative punishment.
Article 88 The provisions of "2nd", "3rd", "5th" and "7th" in these Provisions refer to working days, excluding legal holidays.
The starting date of the period in these Provisions shall not be counted. The period does not include the time in transit. If the last day of the expiration of the period is a legal holiday, the date of expiration of the period shall be the first day after the legal holiday.
Article 89 The "above", "below", "within" and "before" in these Provisions include this number or the corresponding level.
Article 90 The Tobacco Monopoly Bureau shall establish and improve the file management system of administrative punishment cases, and make, collect, sort out and properly keep relevant materials involved in the case in a timely manner according to law. The transfer, borrowing and calling of the materials involved shall be handled in accordance with the requirements of file management.
Article 91 These Provisions shall apply to the implementation of administrative penalties by the Tobacco Monopoly Bureau for illegal acts involving electronic cigarettes and other new tobacco products.
Article 92 The Ministry of Industry and Information Technology and the State Tobacco Monopoly Bureau shall be responsible for the interpretation of these Provisions.
Article 93 These Provisions shall come into force as of July 20, 2023. On January 21st, 2010, the Provisions on Administrative Punishment Procedures for Tobacco Monopoly (Order No.12 of the Ministry of Industry and Information Technology) was abolished at the same time.