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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II JURISDICTION CHAPTER III PUNISHMENT AND APPLICATION CHAPTER IV PLACING CASES ON FILES CHAPTER V INSPECTIONS CHAPTER VI HANDLING CHAPTER VII ENFORCEMENT CHAPTER VIII REVIEW CHAPTER IX SIMPLE PROCEDURES CHAPTER X WITHDRAWAL CHAPTER XI LEGAL LIABILITIES CHAPTER XII OTHER PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Procedures have been formulated according to the relevant provisions of the Law of the People's Republic of China on Administrative Punishment and the Regulation of the People's Republic of China on the Administration of Foreign Exchange for the purpose of standardizing, formalizing and institutionalizing the inspection and handling of acts violating foreign exchange rules by the State Administration of Foreign Exchange and the branch organs thereof (hereafter referred to foreign exchange administrations), ensuring the lawful exercising of functions by the foreign exchange administrations and protecting the lawful rights and interests of the parties concerned. Article 2. In the inspection and handling of acts violating foreign exchange rules, the authorities concerned shall follow the principles of impartiality, justice and openness, taking facts as the basis and law as the criteria, being practical, starting from the objective realities, and persisting in the combination of punishment and education. Article 3. It shall be based on the published effective laws, regulations, rules and other regulatory documents to give administrative punishments to the acts violating foreign exchange rules. Those that have not be published may not be taken as the ground for giving administrative punishments. Article 4. The foreign exchange administrations that give punishment to the acts violating foreign exchange rules shall obtain the power to give administrative punishments by lawful means. CHAPTER II JURISDICTION Article 5. The acts violating foreign exchange rules shall be subject to the inspection and handling of the foreign exchange administration of the place where they place. Article 6. In case more than two foreign exchange administrations have jurisdiction over an act violating foreign exchange rules, the right of competency shall be settled through negotiations. Where it cannot be settled through negotiations, it shall be designated by the foreign exchange administration on the next higher level above both administrations. Article 7. As for an act violating foreign exchange rules that have great bearing over the jurisdiction of all the foreign exchange administrations at different levels or the foreign exchange administration on a higher level believes that it should exercise direct jurisdiction over the violation, the foreign exchange administration on the higher level may directly inspect and handle the case or transfer it to the foreign exchange administration with jurisdiction after investigations. CHAPTER III PUNISHMENT AND APPLICATION Article 8. Any one below the age of 14 who violates the rules of foreign exchange administration shall be exempted from punishment, but the guardian thereof shall be ordered to educate and discipline him. Any one above the age of 14 but below the age of 18 that violates the rules of foreign exchange administration shall be given a lesser punishment or be given a punishment that is below the minimum statutory prescriptions. Article 9. A lunatic who violates foreign exchange rules when he is incapable of discriminating or controlling his behaviors shall be exempted from punishment, but the guardian thereof shall be ordered to take more strict charge of him or give medical treatment to him. A person of intermittent insane who violates foreign exchange rules when he is sane shall be punished according to law. Article 10. In any of the following circumstances, the parties concerned shall be given a lesser punishment or be given a punishment that is below the minimum statutory prescriptions: (1) Voluntarily clearing up or mitigating the dangerous aftermaths of the offences; (2) Having committed the offence under the duress of other people; (3) Having meritorious acts in cooperating the investigations of the offences by the administrative organs; or (4) Other circumstances that shall be given a lesser punishment or be given a punishment that is below the minimum statutory prescriptions. Article 11. In case an act violating foreign exchange rules is venial and can be pardoned and has not resulted in serious aftermaths, the offender shall be exempted from punishment. Article 12. If any violation of foreign exchange rules is not disclosed within two years, the offender shall be exempted from administrative punishments unless there are otherwise provisions in law. The time limit provided in the preceding paragraph shall be counted from the day when the act violating foreign exchange rules happened. If the act violating foreign exchange rules is committed continuously or remains in a continuous state, it shall be counted from the day when the act finishes. CHAPTER IV PLACING CASES ON FILES Article 13. The sources of acts violating foreign exchange rules to be placed on files include: (1) Reporting by other people; (2) Reporting by the offender himself after self investigation; (3) Given of Transferred by other foreign exchange administrations or other relevant departments; (4) Being found by the foreign exchange administration in inspections; and (5) Other circumstances. If the report is made by way of telephone calls, orally or by the offender himself after self investigations, it shall be recorded or put down in writing. Article 14. The foreign exchange administrations shall examine the materials concerning acts violating foreign exchange rules in a timely way. If it has jurisdiction over the act, has found facts about the violation, and believes that the offender shall be liable or the act is suspicious and needs to be investigated into, it shall place the case on file. If it finds that the case is not under its jurisdiction after examining the materials concerning an act violating foreign exchange rules, it shall transfer the case to the competent foreign exchange administration. If the case is under the jurisdiction of any other administrative organ, it shall be timely transferred to the other administrative organ for handling. If the act has constituted a crime, the case shall be delivered to the judicial department for the investigation and assumption of criminal liabilities and may not replace criminal penalties with administrative punishments. Article 15. When placing a case on file, a "Report for Placing Cases on Files " shall be filled in (see Format I). A specific person shall be designated to take charge of investigations after the relevant person-in-charge of the foreign exchange administration has granted approval. After a case is placed on file, the inspections thereof shall not be terminated without good reasons. CHAPTER V INSPECTIONS Article 16. Inspections include routine inspections, special inspections and inspections of violation cases. Article 17. In the process of inspections, comprehensive inspections and verifications shall be made to the acts violating foreign exchange rules, and relevant evidential materials shall be collected. Article 18. When performing official duties, the inspectors shall show their "Certificate of Inspection of the State Administration of Foreign Exchange" or their letters of introduction of the foreign exchanges concerned. For routine inspections and special inspections, a notice of inspection (see Format II) shall be issued, and the parties concerned shall be informed 5 days in advance. In case of special circumstances and it is necessary to make surprise inspections, it shall be permitted not to informed the entities to be inspected in advance, but a written request for instructions shall be made prior to the inspection and approval of the relevant leaders of the foreign exchange administrations shall be obtained so as to be put in archivist files for reference. Article 19. There shall be no fewer than two inspectors present in the inquisition of parties concerned or witnesses or in relevant investigations. Article 20. The parties concerned shall be allowed to make statements and pleadings in the process of inquisitions. Article 21. Investigation notes shall be made in the process of inquisition of the parties concerned (see Format II). The investigation notes shall be subject to the verification of the parties concerned. If any of the parties concerned is illiterate, the notes shall be read to him. Should there be mistakes or omissions in the investigation notes, the parties concerned shall be allowed to make corrections or supplements and the signature or seal of the parties concerned shall be affixed to the place where correction or supplement is made. After it is verified that there remain no errors, the signatures or seals of the parties concerned shall be affixed to each page of the notes. The inspectors shall also put their signatures on each of the pages. If any of the parties concerned refuses to put his signature or seal on the notes, the inspectors shall remark it in the notes and then put their signatures. If it is necessary to produce written materials, such materials shall be prepared by the parties concerned. If the parties concerned have difficulty in writing, other people may write on their behalf, but the parties concerned shall put their signatures or seals on the written materials. Article 22. Separate investigation notes shall be made in the process of inquiring witnesses. The notes shall be subject to the verification of the witnesses. If any of the witnesses is illiterate, the notes shall be read to him. In case there are mistakes or omissions in the notes, the witnesses shall be allowed to make corrections or supplements, and the signatures or seals of the witnesses shall be affixed to the places where correction or supplement is made. After confirming that no errors remain, the witnesses and inspectors shall put their signatures on each page of the notes. Article 23. As for the evidential materials collected including written evidences and physical evidences, the sources and origins thereof shall be marked and the person who has produced the evidences shall put his signature or seal on the materials. Article 24. In case any evidence might be missing or hard to be obtained in the future, it may be registered and kept in advance upon the approval of relevant leaders of the foreign exchange administration concerned, and a "Notice for Registering and Keeping Evidential Materials" (see Format IV) shall be prepared. The time period for registering and keeping evidential materials shall not be longer than 7 days. Article 25. With regard to the letters of assistance for investigations, the foreign exchange administrations shall closely cooperate with each other, make careful investigations and give replies in due time. The time period for replying letters shall not exceed two months after receiving the letter of assistance for investigations. Article 26. The inspectors shall, after found the clear facts of illegal acts through investigations, collected adequate and authentic evidences, and completed the legal procedures, prepare a "Inspection Report" (see Format V). CHAPTER VI HANDLING Article 27. The inspection report shall be subject to the examination of the relevant persons-in-charge of the foreign exchange administration, and the following decisions shall be made according to different situations: (1) The facts of violating foreign exchange administration rules are clear, the evidences for the violation are authentic, and a punishment shall be given, then a decision shall be made to give punishment according to the seriousness of the circumstance as well as the concrete situations. (2) For a violation of foreign exchange administration rules that may be exempted from punishment according to Articles 8 (1), 9 (1), 11 and 12 of the present Procedures, it shall be exempted from punishment. (3) If the facts of violation are not tenable, or there are not adequate reasons for punishment, it may not be punished. (4) If the violation of foreign exchange administration rules has constituted a crime, it shall be transferred to the judicial organs for handling. Article 28. In any of the following circumstances, the decision of administrative punishment made by the foreign exchange administration shall be subject to the collective discussion of the relevant people of the administration: (1) A case that has seriously violated the foreign exchange administration rules or that has caused serious damages and needs to be given a gross punishment; (2) A case of violation of foreign exchange administration rules which is found to be hard in determining the nature; (3) A case that is ordered to be reconsidered by the foreign exchange administration on a higher level or relevant person-in-charge of the foreign exchange administration concerned; or (4) Other circumstances that require collective discussions. Article 29. Before making a decision of punishment, the foreign exchange administration concerned shall prepare a "Letter of Informing Administrative Punishment" (see Format VI), informing the parties concerned of the illegal acts, reasons on which the decision of punishment is made, punishments to be given and the rights provided in law. Article 30. In dealing with the acts violating foreign exchange administration rules, special attention shall be paid to listening to the opinions of the parties concerned. The facts, reasons and evidences provided by the parties concerned shall be reconsidered. If the facts, reasons and evidences of the parties concerned are tenable, they shall be accepted. The parties shall not be given a more serious punishment due to their arguments. Article 31. When any foreign exchange administration gives a punishment to any legal person or other economic organization of suspending or terminating the business of selling and settling foreign exchanges, suspending the business of engaging in foreign exchanges or canceling the permit to engage in foreign exchanges, a monetary fine up to RMB1 million or more, or gives a punishment of fine up to RMB 50,000 or more to individuals, it shall inform the parties concerned in the "Letter of Informing Administrative Punishments" of the right to request for holding hearings. A hearing shall be organized according to the following procedures: (1) If any of the parties concerned requests for a hearing, he shall make the request within 3 days after receiving the "Letter of Informing Administrative Punishments"; (2) The foreign exchange administration concerned shall hold a hearing within 30 days after receiving the application of the parties concerned for hearings, and shall service a "Notice of Hearing" (see Format VII) to the parties concerned 7 days prior to holding the hearing; (3) The hearings shall be held in public unless they concern state secrets, business secrets or privacies of individual persons; (4) The hearings shall presided by any person who is not an inspector of the case. If the parties concerned believe that the president of the hearing is directly interested in the present case, they are entitled to request for withdrawal; (5) The parties concerned may attend the hearings in person or entrust 1 or 2 agents to attend; (6) In the hearings, the inspectors shall present the illegal facts, evidences and the administrative punishments to be given, and the parties concerned make arguments and examines the evidences; (7) "Hearing Notes" shall be prepared for the hearings held (see Format VIII). The "Hearing Notes" shall be signed or sealed by the parties concerned after confirming that there are no errors. Where any of the parties clearly announces that he would give up the rights of hearings, he may no longer request for hearings. Where the parties concerned fails to request for a hearing during the time limit, he shall be deemed having given up the right of hearing, and the foreign exchange administration may refrain from arranging for hearings, but shall record the situation in the case files. Article 32. Where a foreign exchange administration decides to give punishments according to the provisions of Article 27 of the present Procedures, it shall prepare a "Decision on Administrative Punishments" (see Format IX). The "Decision on Administrative Punishments" shall clearly specify the following items: (1) The name, gender, residence (or entity) of the parties concerned, or the name, address and basic information such as the name, title, etc. of the legal representative or person-in-charge of the legal person; (2) The illegal facts that have been affirmed; (3) The reasons and grounds for giving the punishments; (4) The decision of punishment; (5) The ways and time limit for enforcing the punishments; (6) The channels and time limit for instituting administrative reconsideration or administrative litigations in case any of the parties refuses to accept the decision of punishments; (7) The name and official seal of the foreign exchange that makes the decision of administrative punishment and the time when the decision is made; and (8) Other circumstances. Article 33. The "Decisions of Administrative Punishments" shall be numbered separately and shall be reported to the foreign exchange administration on the next higher level for archivist purposes. Article 34. When enforcing punishments, the foreign exchange concerned shall order the parties concerned to correct immediately or within a time period their illegal acts if such acts can be corrected. Article 35. For a same act of violating foreign exchange administration rules, the parties concerned cannot be punished by two or more fines. Article 36. In case an act of violating foreign exchange administration rules is dealt with according to Articles 39 (5), 40 (5), 44 (4) and 45 (4) of the Regulation of the People's Republic of China on the Administration of Foreign Exchange, the decisions made shall be subject to the prior approval of the State Administration of Foreign Exchange. When reporting the decision of punishment, the affirmed facts, relevant evidential materials and the reasons as well suggestions for handling shall be reported at the same time. Article 37. The "Decision of Administrative Punishments" shall be serviced directly to the parties concerned, and the parties concerned shall fill in the "Receipt of Service" (see Format X). If there are difficulties in servicing a decision, it may be serviced by mail or by public announcement. The date of service shall be the day when the parties concerned receive the "Decision of Administrative Punishment". If the decision is serviced by means of public announcements, the announcement shall be published in the major newspapers within the jurisdiction, and it shall be deemed having been serviced 60 days after the public announcement is made. The foreign exchange administration that services decisions by way of public announcements shall mark the reasons and process in the case files. If any of the parties concerned refuses to accept the decision on administrative punishments, the server shall invite the people concerned to be present and inform the situation, record in the "receipt of service" the reasons of refusal and the date, requiring the server and witnesses to put their signatures or seals on the "receipt of service", then leave the "Decision of Administrative Punishments" at the residence of the party concerned or at the office of incoming and outgoing mail, and the Decision shall be deemed having been serviced. CHAPTER VII ENFORCEMENT Article 38. The "Decision of Administrative Punishments" shall take effect on the day when it is serviced to the party concerned. Article 39. Unless it is necessary to enforce immediately a decision, the parties concerned shall pay the fines to the designated bank within 15 days after receiving the "Decision of Administrative Punishments". If any of the parties concerned refuses to accept the decision of punishment and requests for reconsideration or institutes an administrative litigation, the enforcement of the decision of punishments shall not be stopped, unless the case has entered the process of reconsideration or there are different provisions in law. Article 40. In case the parties concerned fail to perform their duties prescribed in the decision of punishments in due time, the foreign exchange administration that make the decision may take the following measures: (1) If the parties concerned fail to pay the fines in due time, they shall be imposed upon an extra fine of 3% of the original fine per day; (2) Pleading the court to enforce the decision. Article 41. In case any party concerned indeed have economic difficulties and need to pay the fines at a later time or by installments, it shall submit a written application and relevant attestations. It may suspend the payment of fine or pay it by installments if the foreign exchange administration that has made the decision so approves. The time period for suspending the payment or payment by installments shall not be more than 5 months at most. Article 42. Unless in any of the following circumstances, the foreign exchange administration that makes the decision of punishments and the staff members thereof may not collect the fines by themselves, instead they shall inform the parties concerned to pay the fines to the designated banks: (1) Imposing a monetary fine of less than RMB 20; (2) It would be difficult to enforce unless collect the fines on spot; (3) It is really difficult for the parties concerned to pay the fines at the designated banks. Where the foreign exchange administration collects the fines on spot, it shall pay the fines collected to the designated banks within two work days. Article 43. After a decision of punishments is enforced, all the materials shall be collected in due time and be placed in files for keeping. The duration of keeping the files shall be determined according to the Time Periods of the State Administration of Foreign Exchange for Keeping Documents and Archivist Files. CHAPTER VIII REVIEW Article 44. When a foreign exchange administration gives punishments, if any of the following circumstances arises, the foreign exchange administration on the next higher level or the person-in-charge of the original foreign exchange administration shall order a review so as to correct the mistakes: (1) The facts are not clear or there are not adequate evidences; (2) There are not statutory grounds for the punishment; (3) Unlawfully changing the type or degree of punishments; or (4) Violating the legal procedures for punishments. Article 45. In case the original foreign exchange administration that handled the case decides to review and correct its own mistakes, the decisions shall be subject to the approval of the person-in-charge of the said administration and be submitted to the foreign exchange on the next higher administration for archivist purposes. Article 46. If any party concerned applies for reconsideration during the valid time period for reconsideration, the reconsideration procedures shall be applied. But if the party against whom the application is filed (the original foreign exchange administration) adopts review procedures to correct its own concrete administrative act, the procedures for review shall not be applied until the party concerned has agreed to and withdrawn its application for reconsideration. Article 47. If any foreign exchange administration corrects its original decision of punishment by way of review, it shall make a "Reviewing Decision" (see Format XI) and inform the parties concerned. If a foreign exchange administration on a higher level corrects the original decision of punishments by way of review, the higher level foreign exchange administration may inform the original foreign exchange administration of the reviewing decision in written form, and the original foreign exchange administration shall prepare a "Reviewing Decision" and inform the parties concerned of the decision. The higher level foreign exchange administration may also prepare a "Reviewing Decision" and inform directly the parties concerned. Where a higher level foreign exchange administration corrects a case directly by way of review, it shall officially inform the lower level foreign exchange administration by way of "Notice of Transferring Case Files for Review" (see Format XII). Article 48. The "Reviewing Decision" shall clearly specify the following content: (1) The name, gender, address (or work place) of the parties concerned or name, address of the entities, basic information such as name and title of the legal representative or person-in-charge, etc.; (2) The illegal facts affirmed; (3) The reasons and grounds for correction through review; (4) The contents corrected through review and the reviewing decision; (5) The ways and time period for enforcing punishments; (6) The effect of the reviewing decision and time limit for reconsideration; (7) The name and seal of the foreign exchange administration that makes the reviewing decision as well as the date when the decision is made; and (8) Other contents or items that shall be marked. Article 49. The foreign exchange administrations shall follow the relevant provisions of Article 37 of the present Procedures by reference and service the "Reviewing Decision" to the parties concerned. CHAPTER IX SIMPLE PROCEDURES Article 50. The simplified procedures shall be applicable to the inspection and handling the following illegal acts violating foreign exchange administration rules: (1) The facts of illegality are clear and authentic and there are statutory provisions for the punishment of giving a warning or a fine of not more than RMB 50 upon the parties concerned or giving a fine of not more than RMB 1,000 upon a legal person or other organization; (2) Other circumstances provided in laws or regulations. Article 51. The simplified procedures include the following: (1) Showing the "Certificate of Inspections of the State Administration of Foreign Exchange" to the parties concerned; (2) Informing the parties concerned of the facts of violating foreign exchange administration rules as well as the reasons and statutory grounds for punishments; (3) Listening to the statements and arguments of the parties concerned; (4) Preparing a "Decision of Administrative Punishments" (see Format XIII). The "Decision of Administrative Punishments" applicable to the simplified procedures may be prepared in advance with a serial number and seal so as to be filled in upon the consent of the leader in charge of inspections; (5) Servicing the "Decision of Administrative Punishments" to the parties concerned on the spot; and (6) The "Decision of Administrative Punishments" to be used in simplified procedures shall be numbered separately. CHAPTER X WITHDRAWAL Article 52. In any of the following circumstances, an inspector shall withdraw: (1) If he is a party concerned in the present case or a relative of any of the parties concerned; (2) If he is directly interested in the present case; or (3) If he has other relations with any of the parties concerned in the present case so that the impartial handling of the case may be affected. In any of the above circumstances, the inspectors concerned shall voluntarily apply for withdrawal. If any of the parties concerned believes that any of the inspectors is of any of the above circumstances, he may also request for the inspector to withdraw. It shall be subject to the decision of the leader of the foreign exchange administration to decide whether an inspector shall withdraw. CHAPTER XI LEGAL LIABILITIES Article 53. If, in the enforcement of administrative punishments by a foreign exchange administration, any of the following circumstances occurs, is shall make corrections, and the person-in-charge who is held to be directly responsible or other people who are held to be directly responsible may be given an administrative punishment: (1) Without statutory grounds for the punishment; (2) Illegally changing the type or extent of the punishment; (3) Violating the statutory procedures for punishments; or (4)Violating the provisions of Article 18 of the Law of the People's Republic of China concerning giving punishments upon entrustments. Article 54. Any inspector who takes advantage of his position to exact or accept the property of other people or appropriate the monetary fines to himself, which has constituted a crime, shall be subject to criminal liabilities according to law. If the circumstances are lenient and do not constitute a crime, the offender shall be given an administrative punishment. Article 55. In case any foreign exchange administration seeks private gains for itself or fails to transfer those cases that shall have been transferred to the judicial organs for assuming criminal liabilities so as to substitute criminal liabilities with administrative punishments, it shall be ordered by the foreign exchange administration on a higher level or the relevant authority to mend up. If it refuses to mend up, the person-in-charge who is held to be directly responsible shall be given an administrative punishment. Any one who seeks personal gains by illegal means or cover up or connive illegal acts shall be subject to assuming criminal liabilities. CHAPTER XII OTHER PROVISIONS Article 56. If administrative reconsideration is involved, the relevant procedures for administrative reconsideration shall be applicable. If there are different provisions concerning the procedures of hearing, such provisions shall be applicable. Article 57. The power to interpret the present Procedures shall remain with the State Administration of Foreign Exchange. Article 58. The present Procedures shall be implemented as of July 1, 2002. The Procedures for Inspecting and Handling Acts of Violating Foreign Exchange Administration Rules shall be concurrently repealed. Attachments: Formats (omitted) |
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