The review system is an important system in the administrative punishment procedures for market regulation, and the "Provisions on Administrative Punishment Procedures for Market Regulation" (hereinafter referred to as the Procedural Provisions) stipulates in detail the scope, steps, and methods of review from Articles 49 to 55, reflecting the importance of the review system. In particular, Article 52 of the Procedural Provisions establishes the principle that all ordinary procedure cases should be reviewed. However, there is still room for discussion on whether a case that is transferred to other market regulation departments after the case is filed, or whether a case assigned to a lower-level market regulation department needs to be reviewed, and whether it is necessary to write a report on the conclusion of the investigation.
One view is that after a case is filed, a case that is transferred to another market regulation department or assigned to a lower-level market regulation department only needs to fill out the "Examination and Approval Form for Administrative Punishment Related Matters" and obtain approval from the person in charge of the organ in accordance with the current procedures, and there is no need to write a separate investigation conclusion report and case review. The reason is that Article 48 of the Procedural Provisions stipulates that the premise for writing a report on the conclusion of an investigation is that the case has been investigated, and that a case transferred to another market regulation department or assigned to a lower-level market regulation department actually requires an investigation by another market regulation department, and that the original market regulation department did not conduct a full investigation, so it cannot be deemed that the investigation is concluded, and the content of Article 48 cannot be covered. At the same time, in accordance with Article 60 of the Procedural Provisions and the provisions on the report on the conclusion of the investigation in the manual of the SAMR Administrative Penalty Document Format Manual, the handling opinions put forward by the case-handling department after the conclusion of the investigation do not include the transfer to other market regulation departments and the transfer of to lower-level market regulation departments, etc., and if there is no clarity in the Procedural Provisions, procedures should not be added.
Another view is that Article 52 of the Procedural Provisions has made it clear that ordinary procedure cases are subject to case review or legal review, and there are no other exceptions. Moreover, Article 49 of the Procedural Provisions clearly states that the case-handling agency shall submit the report on the conclusion of the investigation and other case materials to the review agency for review. Therefore, ordinary procedure cases that have already been filed should be subject to a report on the conclusion of the investigation and a case review or legal review, including cases that are transferred to other market regulation departments or assigned to lower-level market regulation departments.
The author prefers the second point of view, that the report on the conclusion of the case investigation should not be written only after the case-handling agency has investigated all the facts of the case, but should be written when the case-handling agency deems it unnecessary to conduct further investigation and makes corresponding opinions and recommendations on the handling of the case, because whether it is handled in Article 60 of the Procedural Provisions or transferred to other market regulation departments or assigned to a lower-level market regulation department, the case-handling department will not continue to investigate the case in principle. In line with the interpretation of the conclusion of the case investigation (Note: If the leader of the Laws and Regulations Department of the General Administration of the People's Republic of China believes that the investigation will be terminated when interpreting the interim provisions, he may not write a final report). At the same time, due to the provisions of Article 52 of the Procedural Provisions, ordinary procedure cases should be included in the scope of review, and there is currently no basis to exclude any handling method that can be exempted from review. The transfer to other market regulation departments and the transfer to the lower-level market regulation departments for handling are subject to the approval of the department head, and the addition of case-handling personnel to write a report on the conclusion of the investigation and the case review procedures before approval is more in line with the provisions of Article 56 of the Procedural Provisions.
To sum up, the review system is an important safeguard measure for the legality of case handling in the market regulation penalty procedure, and transferring cases to other market regulation departments or assigned to lower-level market regulation departments for review is more in line with the requirements of administration according to law, and is also more conducive to avoiding conflicts due to jurisdictional disputes.
Author |Zuo Jian, Tianjin Market Supervision Comprehensive Administrative Law Enforcement Corps.
Audit |Yu Jackie Chan Zhang Lijuan.
Edit |Zhao Jing.
Internship Editor |Pan Xinran.
Produced by the New ** and Digital Publishing Department of China Industrial and Commercial Press.
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