Notice by Nansha District People's Government of Guangzhou Municipality on Issuing the Implementation Opinions on Flexible Law Enforcement and Accommodating and Prudential Regulation

Normative Document No.4 [2021] of Nansha District People's Government of Guangzhou Municipality

Notice by Nansha District People's Government of Guangzhou Municipality on Issuing the Implementation Opinions on Flexible Law Enforcement and Accommodating and Prudential Regulation

All towns (street communities), departments of and agencies directly under the district,

The Implementation Opinions by Nansha District of Guangzhou on Flexible Law Enforcement and Accommodating and Prudential Regulation has been approved by the CPC Nansha District Committee and Nansha District People's Government, and are hereby issued to you for your compliance and implementation. Problems encountered in the implementation shall be directly reported to the Nansha District Bureau of Justice.

Nansha District People's Government of Guangzhou Municipality

May 10, 2021

The Implementation Opinions by Nansha District of Guangzhou on Flexible Law Enforcement and Accommodating and Prudential Regulation

These Implementation Opinions are formulated in light of the actual practices, based on the Law of the People's Republic of China on Administrative Penalties, the Administrative Coercion Law of the People's Republic of China, the Regulations on Business Environment Optimization of Guangzhou Municipality, and the Regulations on Normalizing Administrative Enforcement Discretion Power of Guangzhou Municipality. The purposes of this formulation are to thoroughly implement requirements of the Notice by the General Office of the State Council on Focusing on Enterprises' Concerns and Further Implementing the Policies to Optimize Business Environment (Normative Document No. 104 [2018] of the General Office of the State Council), arrangements of the CPC Guangzhou Municipal Committee and People's Government of Guangzhou Municipality for further improving business environment reforms, and new requirements for administration and law enforcement by the Civil Code of the People's Republic of China; transform government functions to benchmark the World Bank's business environment evaluation system and meet the people's growing needs for good laws and good governance; bring flexible law enforcement and accommodating and prudential regulation in line with standardization and the rule of law; strictly regulate administration and law enforcement; fully respect and protect civil rights; insist on equal protection of the rights and interests of market entities while facilitating law-based and compliant operations; energize market entities; promote continuous optimization of the business environment in Nansha District; and persistently consolidate achievements of Nansha District in building a law-based government demonstration area.

1. Definitions

Flexible law enforcement herein refers to non-coercive methods, including administrative guidance, administrative advice, administrative notice, administrative warning, administrative admonition, administrative publicity, and administrative follow-up visit, adopted by industrial authorities and administrative law enforcement departments when executing their duties, in accordance with laws, regulations, rules and these Implementation Opinions. These methods aim to supervise and guide market entities to actively and consciously fulfill their legal obligations, correct illegal acts, and remove harmful consequences.

Accommodating and prudential regulation herein refers to practices such as admonishment and ordering correction within a time limit, adopted by administrative law enforcement departments, on market entities that have committed minor violations and cause no harmful consequences as prescribed on the list of exemption from penalties and coercion issued by the People's Government of Guangzhou Municipality and its subordinate departments. These practices serve as substitutions to administrative penalty and coercion under the above-mentioned circumstances, so as to guide and urge market entities to correct their illegal acts and perform law-based operations.

2. Applicability of Flexible Law Enforcement

Flexible law enforcement applies to market entity operations that have not crossed the safety red line, excluding those jeopardize the people's health and public security. Flexible law enforcement shall be adopted by industrial authorities and administrative law enforcement departments throughout their regulation and law enforcement activities. It is generally applicable to minor illegal acts that do not require case registration and investigation. Industrial authorities and administrative law enforcement departments may also formulate specific operation rules and determine different regulation contents and enforcement priorities based on their work features,.

For illegal acts committed by taking advantages of natural disasters, accidents and disasters, public health incidents, public security incidents and other emergencies, flexible law enforcement is not applicable.

Whereas if there are specific provisions for the above administration and law enforcement procedures in laws, regulations, and rules, such provisions shall prevail.

3. Applicability of Accommodating and Prudential Regulation 

Accommodating and prudential regulation applies to illegal acts on the list of exemption from penalties and coercion issued by the People's Government of Guangzhou Municipality and its subordinate departments, mainly including the following four categories: (1) Minor violations that have been corrected in time, caused no harmful consequences, and are not subject to administrative penalty in accordance with the Law of the People's Republic of China on Administrative Penalties; (2) Matters exempted from penalties after timely correction within the prescribed time in accordance with relevant laws, regulations, and rules; (3) Matters free from administrative coercive measures in accordance with Administrative Coercion Law of the People's Republic of China; (4) Matters for which additional fines or overdue fines can be reduced in accordance with Administrative Coercion Law of the People's Republic of China. 

Other minor violations of market entities allowed exemptions from penalties and coercion in accordance with the Law of the People's Republic of China on Administrative Penalties, and the Administrative Coercion Law of the People's Republic of China and other laws, regulations and rules, may be free from penalty or administrative coercion.

4. Basic Principles

The implementation of flexible law enforcement and accommodating and prudential regulation shall comply with applicable laws, regulations and rules, and shall not violate the spirit and principles of laws as well as normative documents issued by superior departments.

When implementing flexible law enforcement and accommodating and prudential regulation, competent authorities shall respect the law of economic and social development, take full consideration of the subjective and objective conditions of market entities, and comprehensively balance economic and social benefits. Authorities shall not violate the legitimate rights and interests of market entities, force the market entities to accept flexible law enforcement or do so in a disguised manner,  causing any unnecessary burden to them.

The implementation of flexible law enforcement and accommodating and prudential regulation, except matters involved with state secrets, commercial secrets and personal privacy, shall be open to the public according to law. More efforts shall be made on the publicity, communication and reasoning, so as to encourage the positive interactions among government, society and citizens.

For better implementation of flexible law enforcement and accommodating and prudential regulation, industrial authorities and administrative law enforcement departments shall make concerted efforts to strengthen coordination between regulation and law enforcement. While focusing on flexible law enforcement and accommodating and prudential regulation, they shall insist on the proper application of laws, regulations and rules. Violators who refuse to correct or violate again and those who have committed major illegal acts shall be subject to investigation and punishment according to laws.

5. Methods of Flexible Law Enforcement

According to actual conditions, flexible law enforcement can be carried out in one or more of the following ways concurrently:

(I) Administrative guidance. Industrial authorities and administrative law enforcement departments shall provide support for market entities within the jurisdiction of Nansha in improving management capabilities and product quality within their scope of official functions and duties.

(II) Administrative advice. Industrial authorities and administrative law enforcement departments shall provide advice and guidance for market entities in regulation and law enforcement, and guide them to develop awareness of responsibility, quality safety, brand rights protection, and honest and law-abiding practice, in order to promote healthy development of market entities. 

(III) Administrative notice. Industrial authorities and administrative law enforcement departments shall analyze the public complaints and reports as well as data of daily regulation and law enforcement. For illegal acts that frequently occur, industrial authorities and administrative law enforcement departments shall promote and explain laws, regulations and rules to market entities orally or in writing, so as to guide and urge them to fulfill obligations in accordance with laws, regulations and policy requirements and avoid violations. 

(IV) Administrative warning. If market entities have violated laws, regulations and rules, but such violation is minor, caused no harmful consequences, is not committed intentionally and has been corrected in time, industrial authorities and the administrative law enforcement departments shall, based on their functions and power, issue a warning and urge them to correct. 

(V) Administrative admonition. If market entities (persons in charge) are involved with potential safety risks or quality defects, have received a large quantity of complaints, and have caused adverse impacts, industrial authorities and administrative law enforcement departments shall have regulatory talks with them, urging them to fulfill responsibilities and legal obligations as entities of quality safety. Administrative admonition can be carried out one by one or in groups. As regard to prominent regional and industrial issues involving functions and responsibilities of multiple departments, admonition shall be jointly carried out by all relevant departments.

(VI) Administrative publicity. Industrial authorities and administrative law enforcement departments shall collect, collate and analyze relevant information formed in regulation and law enforcement, and announce the results to the public according to law, providing market entities with guidance and reference.

(VII) Administrative follow-up visits. After making administrative decisions, industrial authorities and administrative law enforcement departments shall, in accordance with the requirements of the supervision of administration and law enforcement, pay follow-up visits to administrative counterparts to see if they have corrected the illegal acts and seek opinions and suggestions from them. Administrative follow-up visits mainly apply to the following situations:

1.After making decisions of administrative penalties and coercion, administrative law enforcement departments shall pay follow-up visits to administrative counterparts to check if the law-enforcement officers adhere to clean and honest practices and if the illegal acts have been actually corrected.

2. In supervision and inspection, if the administrative counterparts are involved in unqualified regulatory matters, industrial authorities shall search for the reasons, pay follow-up visits within the prescribed period to check if the correction has been made and if the regulatory actions are legal and normative.

6. The List of Exemption from Penalties and Coercion of Accommodating and Prudential Regulation

Industrial authorities and administrative law enforcement departments shall make timely communication with their superior departments, follow up the list of exemption from penalties and coercion that has been issued and that is to be formulated, and thoroughly implement them in law enforcement. For any problem found in the issued list of exemption from penalties and coercion, industrial authorities and administrative law enforcement departments shall give timely feedback to their superior departments and administrative organs of justice at the same level, in a bid to ensure legal and reasonable formulation and proper implementation of the list. 

7. Coordination and Connection between Flexible Law Enforcement and Accommodating and Prudential Regulation

Industrial authorities and administrative law enforcement departments shall share law enforcement information in real time and cooperate with each other in implementing flexible law enforcement and accommodating and prudential regulation.

(I) Industrial authorities and administrative law enforcement departments shall  sort out and refine flexible law enforcement in each law enforcement field, summarize methods and implement specific procedures, file management and data statistics of flexible law enforcement in their corresponding fields.

(II) Industrial authorities and administrative law enforcement departments shall conduct law enforcement inspection in accordance with administrative inspection list, annual plan for administrative inspection and special enforcement arrangements. Any illegal conduct found in inspection shall be punished according to the list of exemption from penalties and coercion issued by the People's Government of Guangzhou Municipality and its subordinate departments as well as relevant discretion power regulations of administrative penalties.

(III) For cases transferred from industrial authorities for case filing and investigation, administrative law enforcement departments shall verify the clues and report the processing situation to industrial authorities.

(IV) During investigation, if the violator is a major potential safety risk and have repeated the offence for multiple times, which may involve suspending related licenses or permits, administrative law enforcement departments shall timely report to industrial authorities, and suspend the violator's licenses or permits in accordance with their functions and power. Notice should be given to industrial authorities if actions such as administrative warning and administrative admonition need to be taken.

8. Risk Management Mechanism and Legal Review

Industrial authorities and administrative law enforcement departments shall incorporate flexible law enforcement and accommodating and prudential regulation into their annual work objectives and set up sub-goals. They should also establish supervision, assessment, risk prevention and control systems of flexible law enforcement and accommodating and prudential regulation.

Industrial authorities and administrative law enforcement departments shall establish and implement legal review systems for major administration and law enforcement decisions, timely perform scientific judgment for flexible law enforcement and accommodating and prudential regulation to improve risk prevention capabilities through collective discussion, expert discussion, public participation, third-party assessment, etc.

Legal review systems and risk management mechanisms of industrial authorities and administrative law enforcement departments shall be reported to Nansha District Bureau of Justice for record within five (5) days after the formulation. If Nansha District Bureau of Justice regards the systems reported as not complete, legal advice and correction suggestions shall be timely put forward.

9. Regulation Red Lines

In flexible law enforcement and accommodating and prudential regulation, industrial authorities and administrative law enforcement departments shall immediately investigate and punish the market entity that have committed one of the following violations according to law:

(I) Illegal acts that seriously endanger national security, public safety, personal health and safety of life and property.

(II) Illegal acts that seriously damage ecological environment, disrupt the order of social management and market operation, harm interests of the people and consumer rights and interests, etc.

10. Application Rules

Where there are inconsistencies between these Implementation Opinions and provisions in laws, regulations and rules or normative documents of superior authorities, such provisions shall prevail.

For illegal conducts not prescribed on the list of exemption from penalties and coercion issued by the People's Government of Guangzhou Municipality and its subordinate departments, industrial authorities and administrative law enforcement departments shall exercise normative discretion power and make judgments, in accordance with the Law of the People's Republic of China on Administrative Penalties, and the Administrative Coercion Law of the People's Republic of China as well as laws, regulations and rules of all industries,.

11. Interpretation and Feedback

These Implementation Opinions are interpreted by Nansha District People's Government of Guangzhou Municipality. Problems of law enforcement and regulation encountered in the implementation shall be reported to Nansha District Bureau of Justice.

If detailed measures are needed for implementation, industrial authorities and departments of administrative law enforcement shall issue rules or guidance in accordance with legal procedures.

12. Date of Implementation

These Implementation Opinions shall come into force on the date of promulgation and remain valid for three (3) years.

Form of Disclosure: Active Disclosure