In order to standardize the implementation of administrative penalties for tobacco monopolies, ensure and supervise the effective implementation of administrative management by the tobacco monopoly bureau, maintain the national tobacco monopoly system, and protect the legitimate rights and interests of citizens, legal persons or other organizations, the Ministry of Industry and Information Technology has recently revised and published the "Administrative Penalty Procedure Regulations for Tobacco Monopoly". This regulation applies to the implementation of administrative penalties by tobacco monopoly bureaus at all levels, and will take effect from July 20, 2023. The "Administrative Penalty Procedure Regulations for Tobacco Monopoly" announced on January 21, 2010 are simultaneously abolished.
The Administrative Punishment Procedures for Tobacco Monopoly (promulgated by the Ministry of Industry and Information Technology in Order No. 61 on May 16, 2023, and effective from July 20, 2023) have been published.
Chapter 1: General Provisions
The purpose of this regulation is to standardize the implementation of administrative penalties for tobacco monopolies, ensure effective administration by the tobacco monopoly bureau, maintain the national tobacco monopoly system, and protect the legitimate rights and interests of citizens, legal persons or other organizations. In accordance with the Administrative Penalty Law of the People's Republic of China, the Tobacco Monopoly Law of the People's Republic of China, the Law of the People's Republic of China on the Protection of Minors, as well as the Implementation Regulations of the Tobacco Monopoly Law of the People's Republic of China and other laws and regulations, this regulation is formulated.
The second clause stipulates that administrative penalties will be implemented by all levels of tobacco monopoly bureaus, in accordance with these regulations.
The Tobacco Monopoly Bureau shall adhere to the following principles when carrying out administrative sanctions:
(1) Based on facts, commensurate with the factual basis, nature, circumstances, and degree of social harm of illegal acts.
(2) The subject qualifies, the process is legal, and the procedures are complete.
The combination of punishment and education aims to promote the voluntary compliance of citizens, legal entities or other organizations with the law.
(4) Ensure fairness, impartiality, openness, transparency and protect the legitimate rights and interests of all parties involved.
The ninth article states that if the tobacco monopoly bureau discovers a case that falls under the jurisdiction of another tobacco monopoly bureau, it should transfer the case to the bureau that has jurisdiction.
In cases where the violation committed by the party does not warrant administrative punishment in accordance with the law, the tobacco monopoly bureau should educate the party involved.
Article 20: The tobacco monopoly bureau shall formulate administrative penalty discretion criteria in accordance with the law to standardize the exercise of administrative penalty discretion. The criteria for administrative penalty discretion shall be made public to society.
Chapter 3: General Provisions
Article 21: The tobacco monopoly bureau shall publicize information regarding the administrative penalty enforcement institution, legal basis for filing, implementation procedures, and channels for relief.
Article 22: Administrative penalties should be implemented by law enforcement officers with administrative law enforcement qualifications in the tobacco monopoly bureau. The number of law enforcement officers should not be less than two, except as otherwise provided by law.
Law enforcement officials should enforce the law in a civilized manner and respect and protect the legitimate rights and interests of the parties involved.
Article 28: Administrative penalty decisions that have a certain social impact should be published in accordance with the law.
Article 38: Law enforcement officers should actively present their law enforcement credentials to the parties involved or relevant personnel during investigations or inspections. The parties involved or relevant personnel have the right to request law enforcement officers to present their law enforcement credentials. If law enforcement officers fail to present their law enforcement credentials, the parties involved or relevant personnel have the right to refuse investigation or inspection.
The parties involved or individuals relevant to the matter at hand should truthfully answer any questions and assist with investigations or inspections without refusal or obstruction. A record should be made of all questions and inspections.
Article 39: If law enforcement personnel need to inspect, copy, or obtain contracts, invoices, accounts, documents, records, correspondence, and other materials related to illegal activities from relevant units, they must present an assistance letter issued by a tobacco monopoly bureau at or above the county level.
Law enforcement personnel should collect and obtain original evidence related to the case as proof. If obtaining original evidence is difficult, copies, screenshots, or photos can be made and confirmed by the original holder through signature or other means to verify that they match the original evidence.
Article 40: When extracting physical evidence, it should be counted on site, and a list of items should be generated and signed by the law enforcement personnel and the parties concerned or confirmed in another way. If the party refuses to confirm or is not present, there should be at least two witnesses present to confirm; if the witnesses are fewer than two or refuse to confirm, the law enforcement personnel should indicate the situation on the list of items and sign it.
According to Article 41, law enforcement officials are required to collect the original media for audiovisual materials. If collecting the original media proves difficult, officials may collect copies, noting their production method, production time, producer, and other relevant information. Transcripts of any accompanying dialogue should also be recorded.
Article 42: Law enforcement personnel should collect the original carriers of electronic data.
If there are difficulties in collecting the original electronic data carrier, the electronic data can be extracted. Law enforcement officers extracting electronic data should make a record and attach an inventory of the electronic data, which should be signed by the electronic data holder or confirmed in another way.
If collecting electronic data evidence is difficult according to the first two provisions, relevant evidence can be fixed through methods such as printing, taking photos, or recording videos, and accompanied by a statement indicating the situation. The electronic data holder can sign or confirm in other ways.
If the holder refuses to confirm or is not present, there should be at least two witnesses present to confirm. If there are less than two witnesses or they refuse to confirm, law enforcement officials should note the situation and sign it.
Article 43 stipulates that law enforcement officers must conduct questioning of individuals and witnesses separately, inform them of their legal rights, and explain the legal consequences of providing false testimony or withholding evidence. A record of the questioning must also be made.
Article 44: If there is a need to verify the authenticity of tobacco products and other specialized matters, the Tobacco Monopoly Bureau shall commission a tobacco quality testing organization designated by the State Administration for Market Regulation or the market supervision and administration departments of provincial, autonomous region, or municipality governments to carry out the verification and issue an entrusted appraisal report that states the entrusted verification matters and related materials.
If according to the law it should be transferred to another relevant department for processing, a transfer decision will be made and communicated to the parties involved in writing.
Personnel who are new to reviewing administrative penalty decisions within the tobacco monopoly bureau must obtain legal professional qualifications by passing the national unified legal professional qualification examination.
For complex or severe illegal activities, administrative penalties will be imposed and the head of the tobacco monopoly bureau must make decisions collectively after discussion.
Article 55: The administrative penalty decision of the tobacco monopoly shall be delivered to the parties involved on the spot after it is announced. If the parties involved are not present, the tobacco monopoly bureau shall serve the administrative penalty decision within 7 days in accordance with the Civil Procedure Law of the People's Republic of China and this regulation.
If the documents are delivered directly to the parties involved, the recipient or their adult family member residing with them can confirm the receipt by signing, stamping, or in any other way acknowledging the date of receipt on the delivery receipt. The date of receipt as indicated on the delivery receipt by the recipient or their adult family member residing with them will be considered as the date of delivery.
When the delivery is made in person and the recipient or their adult family member residing with them refuses to receive the delivery document, the method of service by detention shall be applied in accordance with the law.
If there are difficulties in delivering directly, the local tobacco monopoly bureau can be entrusted to deliver, or it can be delivered by mail. For mail delivery, the delivery date shall be the date indicated on the receipt.
Article Four: If the recipient's whereabouts are unknown or they cannot be reached through other means mentioned in this provision, public notice may be used for service of process. The Tobacco Monopoly Bureau should publish the notice in newspapers available to the public at its location or post it on the notice board at the recipient's place of residence or on the bureau's own notice board. If the Tobacco Monopoly Bureau has a publicly accessible website, the notice may also be posted there. Once public notice has been issued, service will be deemed to have been made 30 days after the date of publication. The reason and process for using public notice should be recorded in the case files.
If the concerned party agrees and signs a confirmation letter, the tobacco monopoly bureau may deliver administrative penalty decisions and other relevant documents to the concerned party via fax, email, or other electronic means.
Article 56 states that before making an administrative penalty decision, the tobacco monopoly bureau and its enforcement officers must notify the party concerned of the proposed administrative penalty content, facts, reasons, and basis in accordance with the law, or refuse to hear the party's statement or defense. Without doing so, they are not allowed to make administrative penalty decisions, except in cases where the party has explicitly waived their right to make a statement or defend themselves.
Chapter 6: Hearing Procedures.
Article 57: If the tobacco monopoly bureau intends to make an administrative penalty decision, it shall inform the parties of their right to request a hearing. If the parties request a hearing, the tobacco monopoly bureau shall organize the hearing.
A fine of over 10,000 yuan.
(2) Confiscate illegal gains of significant amounts or illegal tobacco monopoly products.
Thirdly, revoking the qualifications and licenses of those engaged in the tobacco monopoly business.
(4) Cease production and business operations, and order closure.
(5) Other significant administrative penalties.
Article 58: The tobacco monopoly bureau shall not impose heavier penalties on individuals who request a hearing.
During the period of administrative review or administrative litigation, unless otherwise provided by law, the execution of tobacco monopoly administrative penalty decisions shall not be suspended.
If the party applies for administrative reconsideration or initiates administrative litigation, the amount of the fine shall not be calculated during the period of administrative reconsideration or administrative litigation.
According to Article 70, if a party fails to apply for administrative review or file an administrative lawsuit with the People's Court within the time limit, and also fails to comply with the administrative penalty decision, the tobacco monopoly bureau that issued the penalty decision may apply for compulsory enforcement from the People's Court in accordance with the provisions of the Administrative Compulsory Law of the People's Republic of China.
Article 71: If the parties involved fail to initiate an administrative lawsuit against the administrative review decision upholding the administrative penalty, and also fail to comply with the administrative review decision, the original tobacco monopoly bureau that issued the administrative penalty shall apply to the People's Court for compulsory enforcement in accordance with the provisions of the Administrative Compulsory Law of the People's Republic of China.
Article 72: If the party fails to file an administrative lawsuit to request a change in the administrative review decision regarding the administrative punishment, and fails to comply with the administrative review decision beyond the deadline, the review agency will apply for compulsory enforcement from the People's Court in accordance with the provisions of the "Administrative Compulsory Law of the People's Republic of China".
Article 73: For legally confiscated tobacco products, if the party responsible cannot be found within 60 days of the tobacco monopoly bureau’s posting of notices and announcements, the head of the bureau may approve the sale of these products and transfer the proceeds to the state treasury.
Article 74: Tobacco products that have been legally seized due to mold, spoilage, or deterioration shall not be permitted for sale or circulation. If the Tobacco Monopoly Bureau chooses to dispose of these products, it must be done in accordance with relevant national regulations and approved by the higher-level Tobacco Monopoly Bureau.
Article 75: Except for fines that are confiscated 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 enforcement personnel who make administrative punishment decisions may not collect fines on their own.
All illegally obtained fines, confiscated assets, and proceeds from auctions must be turned over to the national treasury in full. No organization or individual is allowed to withhold, privately divide, or secretly distribute these funds.
Chapter 8: Law Enforcement Supervision
Article 76: The legal departments of higher-level tobacco monopolies or their dedicated legal personnel should regularly review the administrative penalty cases handled by lower-level tobacco monopolies. Any issues identified during the review should be promptly pointed out.
Article 77: The superior tobacco monopoly bureau has the right to review the administrative sanctions imposed by the subordinate tobacco monopoly bureau in accordance with these regulations.
The higher authority of the tobacco monopoly bureau has the power to change or revoke the administrative decision of the lower level bureau if there are clear errors. Alternatively, they may order the lower level bureau to make a new processing decision.
Article 87 Foreigners, stateless persons, foreign organizations in the territory of the People's Republic of China have violated the tobacco monopoly management order of illegal acts, shall be given administrative punishment, the provisions shall apply.
Article 88 The provisions of the "2 days" "3 days" "5 days" "7 days" refers to the working days, excluding legal holidays. Excluding legal holidays.
This provision does not count the date of the beginning of the period. The period does not include the time in transit. The last day of the expiration of the period is a legal holiday, the first day after the legal holiday as the date of expiration of the period.
Article 89 The "above", "below", "within" and "before" in this provision include the present number or level.
Article 90 The Tobacco Monopoly Bureau shall establish and improve the administrative punishment case file management system, timely production, collection, organization and proper preservation of relevant case-related materials in accordance with the law. The transfer, borrowing, and calling of case-related materials shall be in accordance with the requirements of file management for the appropriate procedures.
Article 91 The Tobacco Monopoly Bureau of the implementation of administrative penalties for violations involving new tobacco products such as electronic cigarettes, the provisions shall apply.
Article 92 The provisions of the Ministry of Industry and Information Technology, the State Tobacco Monopoly Administration is responsible for the interpretation.
Article 93 These provisions shall come into force on July 20, 2023. January 21, 2010 announced the "administrative penalty procedures for tobacco monopoly" (Ministry of Industry and Information Technology Order No. 12) shall be repealed.
