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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II GENERAL RULES CHAPTER III ACCEPTANCE AND FILING OF CASES CHAPTER IV INVESTIGATION AND INSPECTION CHAPTER V HANDLING OF CASES CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Provisions are formulated for the purpose of implementing the Regulations on Labor Security Supervision and standardizing labor security supervision activities. Article 2. The present Provisions shall apply to the supervision conducted by labor security administrative departments and their subordinate labor security agencies over enterprises and individual industrial and commercial businesses (hereinafter referred to the employing entities) in the aspect of their abiding by the labor security laws, regulations and rules. The labor security supervision over job intermediary agencies, occupational skills training agencies and occupational skills evaluation and authentication agencies shall be carried out in accordance with the present Provisions. The labor security supervision over state organs, public institutions and social organizations in the aspect of their implementing the labor security law shall be carried out according to the functions of labor security administrative departments as well as the present Provisions. Article 3. Labor security supervision shall be conducted in the principle of impartiality, openness, high efficiency and facilitating the people. The imposition of labor security administrative punishments shall be based on the facts, take the law as the criterion, adhere to the principle of combining education with punishment and accept public supervision. Article 4. A withdrawal system shall be adopted in labor security supervision activities. Article 5. Labor security supervision administrative agencies set up by labor security administrative departments at and above the county level and organizations entrusted by these labor security administrative departments with labor security supervision (hereinafter collectively referred to labor security supervision agencies) shall be responsible for the specific management of labor security supervision. CHAPTER II GENERAL RULES Article 6. A labor security administrative department shall work out an annual plan and a medium- and long-term plan for the daily inspection tours to employing entities and their working places, determine the major inspection range and comply with the provisions concerning on-site inspections. Article 7. A labor security administrative department shall examine the written materials concerning the compliance with labor security law submitted by an employing entity required and shall, in a timely manner, correct, investigate into and give punishment against any violation found in the examination. Article 8. A labor security administrative department may organize special inspections of major problems arising during the implementation of the labor security law. Where necessary, it may conduct inspections together with other departments or organizations. Article 9. A labor security administrative department shall have an informant or complaint mail box, make public an informant or complaint telephone number and investigate and give punishment against acts in violation of the labor security law informed or complained of. CHAPTER III ACCEPTANCE AND FILING OF CASES Article 10. Any organization or individual shall be entitled to inform a labor security administrative department of any act in violation of the labor security law. Article 11. A labor security administrative department shall investigate into and give punishment against the act in violation of the labor security law informed of by an informant and shall keep confidential the identity of the informant. If the information provided by the informant is found true, it shall award those who have provided important clues or evidence for investigating an act of seriously violating the labor security law. Article 12. Where an employee considers that the employing entity infringes upon his lawful rights and interests by violating the labor security law, he shall have the right to make a complaint to the labor security administrative department. As to a collective complaint arising from an identical matter, the complainants may recommend a representative to make complaint. Article 13. A complainant shall submit a written complaint to the labor security administrative department. If it is difficult for him to file a written complaint, he may complain orally, but the labor security supervision agency should make transcripts and let the complainant sign these transcripts. Article 14. A written complaint shall state: (1)The name, sex, age, occupation, employer, domicile and contact of the complainant; the name, address, the name of the legal representative or major person-in-charge of the complained employing entity; and (2)The facts regarding the infringement on the legitimate labor security rights and interests, and the claims. Article 15. Where a complaint is under any of the following circumstances, the labor security administrative department shall inform the complainant that the complaint shall be handled under the procedures for resolving labor disputes or lawsuit procedures: (1)It shall be resolved under the procedures for resolving labor disputes; (2)An application has already been filed for mediation or arbitration under the procedures for resolving labor disputes; or (3)A labor dispute lawsuit has already been lodged. Article 16. Where an employing entity is under any of the following circumstances, if its act of violating the law security law causes any damage to the employee and thus results in a compensation dispute between it and the employee, the dispute shall be settled in accordance with the relevant provisions of the state on settlement of labor disputes: (1)The employee suffers any damage resulted from the unlawful bylaws set forth by the employing entity, (2)The female or minor employee suffers any damage resulted from the employing entity's violating the provisions on the protection of female or minor employees; (3)The employee suffers any damage resulted from the conclusion of a null and void contract for any reason on the part of the employing entity; (4)The employee suffers any damage because the employing entity illegally cancels the labor contract or deliberately delay the conclusion of a labor contract; (5)The employee suffers any damage resulted from any other act of the employing entity in violation of the labor security law, provided for in any law, regulation or rule. Article 17. An administrative dispute over social insurance arising between an employee or employing entity and the institution responsible for handling the social insurance shall be resolved under the Measures for Resolving the Administrative Disputes over Social Insurance. Article 18. Where a complaint meets the following conditions, the labor security administrative department shall accept it within 5 working days from the day when it receives it and shall put a case on file for investigation and punishment: (1)The act in violation of the labor security law was committed within recent 2 years; (2)The complain is against a specific employing entity, and the damage to the lawful rights and interests of the complainant is resulted from the employing entity's act of violating the labor security law; (3)The complaint falls within the scope of labor security supervision functions and it is subject to the jurisdiction of the labor security administrative department. If a complaint doesn't meet the conditions provided in Item (1) of the first paragraph, the labor security administrative department shall decide to reject it within 5 working days after it receives it and shall inform the complainant in writing. If a complaint doesn't meet the conditions provided in Item (2) of the first paragraph, the labor security supervision agency shall inform the complainant of the materials that he should correct or supplement. If a complaint doesn't meet the conditions provided in Item (3) of the first paragraph, specifically, if a complaint doesn't fall within the scope of labor security supervision functions, the labor security supervision agency shall inform the complainant of the circumstance. As to a complaint that falls with the scope of labor security supervision functions but isn't subject to the jurisdiction of the labor security administrative department with which it is filed, the labor security supervision agency shall inform the complainant that he should file the complaint with the competent labor security administrative department. Article 19. Where a labor security administrative department discovers, through daily inspection tour, check in writing or an informant, any employing entity violating the labor security law, if it is necessary to investigate into and punish this employing entity, it shall put on a case on file for investigation and punishment without delay. A case-filing examination and approval form shall be filled out for the filing of a case and it shall be submitted to the person-in-charge of the labor security supervision agency for approval. The date of approval of the person-in-charge of the labor security supervision agency shall be the case-filing date. CHAPTER IV INVESTIGATION AND INSPECTION Article 20. The number of labor security supervisors in an investigation or inspection shall not be less than 2, one of whom shall be designated by the labor security supervision agency as the chief labor security supervisor. Article 21. The labor security supervisors shall comply with the following provisions when they conduct supervision and inspection over labor security law-abiding status of an employing entity: (1) When entering into the employing entity, they shall wear the labor security supervision law enforcement marks, show their labor security supervision certificates and tell the employing entity about their identities; and (2) They shall make investigation transcripts, to which the supervisors and the investigated person (or his authorized agent) shall affix their signatures or seals. If the investigated person refuses to affix his signature or seal to the said transcripts, the circumstance shall be noted. Article 22. The labor security supervisors shall undertake the following duties when conducting investigation or inspection: (1) Performing their duties in accordance with the law and enforcing the law impartially; (2) Keeping confidential the business secrets they learnt during the course of performing their duties; and (3) Keeping the informant confidential. Article 23. In conducting labor security supervision or inspection, a labor security supervisor who is under any of the following circumstances shall withdraw: (1)He himself is a close relative of the legal representative or major person-in-charge of the employing entity; (2)He himself or his close relative has direct interests in the case being investigated for punishment; or (3)Other reasons that may affect the impartial handling of the case. Article 24. Where a party concerned considers that a labor security supervisor should withdraw under Article 23 of the present Provisions, he shall be entitled to apply to the labor security administrative department for the withdrawal of the aforesaid labor security supervisor. Where a party concerned applies for the withdrawal of a labor security supervisor, he shall submit a written application. Article 25. A decision of withdrawal shall be made within 3 working days after an application is received. Before a decision of withdrawal is made, the person handling the case shall not stop investigating into and dealing with the case. The applicant shall be informed of the decision of withdrawal. The withdrawal of a person handling a case shall be decided by the person-in-charge of the labor security supervision agency. The withdrawal of the person-in-charge of the labor security supervision agency shall be decided by the person-in-charge of the labor security administrative department. Article 26. A labor security administrative department has the power to take the following measures in conducting labor security supervision: (1)To conduct inspection by entering into the working place of an employing entity; (2)To inquire the relevant persons about the investigation and inspection matters; (3)To demand an employing entity to provide the documents and materials relating to the investigation and inspection matters; (4)To collect relevant information and materials by making notes, sound recording, picture recording, taking photographs and copying; (5)It may make corrections on the spot if it discovers any act of violating any labor security law, regulation or rule that can be supported by exact facts and can be handled on the spot; (6)It may entrust an accounting firm to audit the information about the wages and social insurance premiums paid by the employing entity; (7)Other investigation or inspection measures that may be taken by the labor security department, as may be provided for in any law or regulation. Article 27. Under any of the following circumstances, a labor security administrative department may take the measure of recording the evidences for preservation during the investigation or inspection: (1)The party concerned is likely to forge, alter or destroy the evidences; (2)The improper measure taken by the party concerned may lead to the loss of evidences; (3)It is difficult to re-obtain such evidence in the future if it doesn't take the measure of recording the evidences for preservation; or (4)Other circumstances that may result in the loss of evidences. Article 28. The measure of recording the evidence for preservation shall proceed under the following procedures: (1)In accordance with Article 27 of the present Provisions, the labor security supervision agency files an application for recording the evidences for preservation to the labor security administrative department for approval; (2)The labor security supervisors deliver the notice about recording the evidences for preservation and the checklist of to-be-recorded evidences, for which the party concerned shall sign an acknowledgement of receipt. If the party concerned refuses to affix his signature or seal to the acknowledgement of receipt, the labor security supervisors shall note the circumstance; and (3)After taking the measure of recording the evidences for preservation, the labor security administrative department shall make a decision on handling the case within 7 working days. Upon the expiration of the time limit, the measure of recording the evidences for preservation shall be lifted. During the period of recording the evidences for preservation, the party concerned shall not destroy or transfer away the evidences, and the labor security supervision agency and the labor security supervisors may take the evidences at any time. Article 29. Where a labor security administrative department has to make an investigation for obtaining evidence in another place during the labor security supervision, it may entrust the local labor security administrative department to help it with the investigation. The entrusted party shall complete the investigation within the time limit fixed by the two parties through consultations. Article 30. The labor security administrative department shall, within 60 working days from the day when a case is put on file, complete the investigation of the act of violating the labor security law. If the circumstances are complicated, the time limit may be extended by 30 working days upon approval of the person-in-charge of the labor security administrative department. CHAPTER V HANDLING OF CASES Article 31. If there are exact facts to prove the employing entity's act of violating the labor security law and if there is a statutory punishment (handling) basis, the labor security supervisors may, on the spot, order this employing entity to make corrections within a time limit or make a decision of administrative punishment. To order the employing entity to make corrections within a time limit or make a decision of administrative punishment on the spot, the labor security supervisors shall fill out a standard order of making corrections within a time limit or decision of administrative decision with a serial number and give it to the party concerned on the spot. Article 32. The imposition of a warning or monetary penalty on the spot shall proceed under the following procedures: (1)To orally tell the party concerned the basic facts of its illicit act, the administrative punishment to be given to it, basis for giving such punishment, and the rights it is entitled to enjoy according to law; (2)To hear the statement and argument of the party concerned; (3)To fill out a standard decision of punishment; (4)The on-the-spot decision of punishment shall bear the signatures or seals of the labor security supervisors; and (5)To deliver the decision of punishment to the party concerned on the spot and require the party concerned sign an acknowledgement of receipt. The labor security supervisors shall, within 2 days, deliver the archival pages of the on-the-spot order of making corrections and decision of administrative punishment to the labor security administrative department to which they belong for archival purposes. Article 33. As to a case involving illicit act that cannot be handled on the spot, the labor security supervisors shall, upon investigation and obtainment of evidences, put forward a preliminary handling proposal and fill out a case handling examination and approval form. The case handling examination and approval form shall state the name of the employing entity, description of the case, facts of violating the labor security law, statement of the employing entity, basis for handling the case, proposals about handling the case. Article 34. Before the labor security administrative department makes a decision of administrative punishment or administrative handling concerning an act of violating the labor security law, it shall inform the employing entity, hear its statement and argument. If any relevant law or regulation provides that a hearing shall be held, it shall inform the employing entity that it has the right to request for a hearing. If the employing entity requests for a hearing, the labor security administrative department shall organize a hearing. Article 35. As to an act of violating the labor security law, the labor security administrative department shall, on the basis of the investigation or inspection results, handle it as follows: (1)If it shall be subject to an administrative punishment, a decision of administrative punishment shall be made in accordance with the law; (2)If the employing entity fails to correct the violation that should have been corrected, it shall be ordered to correct it or a corresponding administrative handling decision shall be made; (3)If the circumstance is minor and the violation has been corrected, the case shall be cancelled. Upon investigation or inspection, if the labor security administrative department determines that the violation cannot be supported by facts, it shall cancel the case. If it is found that the case doesn't fall within the scope of labor security supervision, it shall be transferred to the competent authority for handling. If it is suspected of involving in any crime, it shall be transferred to the judicial organ. Article 36. A decision of labor security administrative punishment (handling) shall state: (1)The name, legal representative, address of the punished (handled) entity; (2)The facts and main evidences of the violation determined by the labor security administrative department; (3)The category of and basis for the labor security administrative punishment (handling); (4)The form and time limit for executing the decision of punishment (handling); (5)In case of refusal to accept the decision of punishment (handling), the way and time limit for applying for administrative reconsideration or lodging an administrative lawsuit; and (6)The name of the administrative organ that makes the decision of punishment (handling) and the date of the decision of punishment (handling). A decision of labor security administrative punishment (handling) shall bear the seal of the labor security administrative department. Article 37. After the investigation of a case by the labor security administrative department is completed, a decision of administrative punishment (administrative handling or order of making corrections) or a cancellation of the case shall be made within 15 working days. Under a special circumstance, the time limit may be extended upon approval of the person-in-charge of the labor security administrative department. Article 38. The labor security supervision order of making corrections within a time limit, decision of labor security administrative handling or decision of labor security administrative punishment shall be delivered to the party concerned on the spot after it is announced. If the party concerned isn't at the presence, the labor security administrative department shall, within 7 days, serve the labor security supervision order of making corrections within a time limit, decision of labor security administrative handling or decision of labor security administrative punishment on the party concerned in accordance with the Civil Procedural Law of the People's Republic of China. Article 39. If the labor security administrative department that made a decision of administrative punishment or administrative handling finds that the decision is inappropriate, it shall make corrections and shall promptly inform the party concerned. Article 40. After a labor security case is concluded, the archives shall be established for it. The archival materials shall be preserved for at least 3 years. Article 41. After a decision of labor security administrative punishment or handling is made according to law, the party concerned shall carry it out within the time limit specified in the decision. Article 42. If the party concerned applies for administrative reconsideration or lodges an administrative lawsuit because it refuses to accept the decision of labor security administrative handling or administrative punishment, the execution of the decision shall not be stopped unless it is otherwise provided for by law. Article 43. If the party concerned has to postpone the payment of a monetary penalty or pay the monetary penalty by installments because it really has economic difficulties, upon application of the party concerned and approval of the labor security administrative department, it may postpone the payment of it or pay it by installments. Article 44. If the party concerned fails to carry out, within a specified time limit, the decision of administrative punishment, or decision of administrative handling such as an order of paying the wage, remuneration, compensation to an employee or social insurance premium, the labor security administrative department may apply to the people's court for enforcement, or enforce it by itself according to law. Article 45. Except for the monetary penalties to be collected on the spot according to law, a labor security administrative department or any of its labor security supervisors shall not collect any monetary penalty by itself or himself. A party concerned shall, within 15 days after it receives a decision of administrative punishment, pay the monetary penalty in the bank designated. Article 46. Each local labor security administrative department shall, in accordance with the relevant provisions of the Ministry of Labor and Social Security, count up the number of cases undertaken by it, fill out the forms and submit them to its super-ordinate department. Each local labor security administrative department shall, within 10 working days, submit every decision of administrative punishment made by it to the super-ordinate labor security administrative department for archival purposes. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 47. The labor security administrative departments shall, in accordance with the present Provisions, conduct labor security supervision over employing entities that have no business license or have had their business licenses revoked but still have employees. Article 48. The present Provisions shall come into force as of February 1, 2005. The Provisions on Labor Security Supervision (No. 167 [1993] of the Ministry of Labor and Social Security), Procedural Provisions on Labor Security Supervision (No. 457 [1995] of the Ministry of Labor and Social Security) and the Provisions on the Punishment and Exposure of Labor-related Violations (Order No. 5 of the Ministry of Labor and Social Security, on December 17, 1996) shall be simultaneously abolished. |
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