China News Service, March 29. According to the WeChat public account of the State Financial Supervision and Administration Bureau on the 29th, the State Financial Supervision and Administration Bureau issued the "Measures for the Implementation of Administrative Penalty Discretionary Power." It stipulates that anyone who falls under any of the following circumstances shall be severely punished in accordance with the law:
(1) Seriously violates prudent business rules and has caused or may cause cases or major risk events;
(2) Seriously violating the regulations on fair market competition and affecting the stability of the financial market order;
(3) Seriously infringes on consumer rights, attracts high social attention, and has a bad impact;
(4) Failure to cooperate with supervision and law enforcement in accordance with the law;
(5) The same responsible entity commits the same type of illegal act that violates the same qualitative basis again within five years after being subject to administrative punishment by the State Financial Supervision and Administration Bureau and its dispatched offices or being ordered to make corrections;
(6) The internal control of the organization is seriously lacking or seriously ineffective, and the illegal behavior involves a wide range of areas, has a large impact, or has universal or group characteristics;
(7) Committing illegal acts multiple times, the illegal acts last for a long time, the amount involved is large, or the illegal business accounts for a relatively large proportion;
(8) Lure, instigate or coerce others to break the law or bear legal liability on their behalf;
(9) Retaliating against whistleblowers, witnesses, inspectors or other supervisory personnel;
(10) Other situations that are egregious in nature, serious in nature, and highly harmful to society.
The full text is as follows:
Measures for the Implementation of the Administrative Penalty Discretionary Power of the State Financial Supervision and Administration Bureau
(State Financial Supervision and Administration Order No. 5 of 2024 issued on March 29, 2024 will come into effect on May 1, 2024)
Chapter 1 General Provisions
Article 1 In order to standardize the discretionary power of the State Financial Supervision and Administration Bureau and its dispatched offices in administrative penalties, maintain market order in the banking and insurance industries, and protect the legitimate rights and interests of administrative counterparties, in accordance with the "Administrative Penalty Law of the People's Republic of China" and the "Banking Supervision Law of the People's Republic of China" These Measures are formulated in accordance with relevant laws such as the Management Law of the People's Republic of China, the Commercial Bank Law of the People's Republic of China, and the Insurance Law of the People's Republic of China.
Article 2 The term "administrative penalty discretion" as mentioned in these Measures means that when imposing administrative penalties, the State Administration of Financial Supervision and its dispatched agencies shall comprehensively consider the facts, nature, and circumstances of the illegal act in accordance with laws, administrative regulations, and banking and insurance regulatory provisions. , harmful consequences, subjective fault and other factors, it is the authority to decide whether to impose administrative penalties, the types and extent of administrative penalties.
If banking and insurance institutions, other units and individuals (hereinafter referred to as parties) violate laws, administrative regulations and banking and insurance supervision provisions, and the State Administration of Financial Supervision and Administration and its dispatched offices impose administrative penalties in accordance with the law, they shall exercise administrative penalty discretion in accordance with these Measures. Except as otherwise provided by laws, administrative regulations, and the State Financial Supervision and Administration Bureau.
Article 3 Whether to impose an administrative penalty, and the type and extent of administrative penalty discretion shall match the facts, nature, circumstances, harmful consequences, and degree of subjective fault of the illegal act.
Article 4 When exercising the discretionary power to impose penalties, statutory procedures must be strictly observed. If administrative penalties are imposed for complex or major violations, the State Administration of Financial Supervision or the person in charge of the dispatched agency shall make a collective discussion and decision. No unit or individual may make or change administrative penalty decisions without authorization without legal procedures.
Article 5 To implement administrative penalties, the laws, administrative regulations, and banking and insurance regulatory provisions at the time of the illegal conduct shall apply. However, when the administrative penalty decision is made, laws, administrative regulations and relevant regulatory provisions have been modified or abolished, and the new provisions have lighter penalties or are not considered illegal, the new provisions shall apply.
Article 6 If two or more parties jointly commit illegal acts, their primary and secondary roles in the joint illegal acts shall be distinguished and corresponding administrative penalties shall be imposed respectively.
Article 7 According to laws, administrative regulations, and banking and insurance regulatory provisions, if administrative penalties are imposed for failure to make corrections within the time limit, the party concerned shall first be ordered to make corrections within a time limit. If corrections are made within the time limit, administrative penalties shall be imposed in accordance with the law. The time limit for correction should be clearly defined and the reasonable time for correction should be specified.
Article 8 If a party’s illegal conduct is suspected of being a crime, it shall be promptly transferred to judicial organs or disciplinary inspection and supervision agencies in accordance with relevant regulations, and criminal liability shall be investigated in accordance with the law. Administrative penalties shall not be used in lieu of criminal penalties. If an illegal act constitutes a crime and the people's court has imposed a fine, but the administrative agency has not yet imposed a fine on the party concerned, no further fine will be imposed.
Article 9 If an illegal act is not discovered within two years, no administrative penalty will be imposed; if it involves financial security and has harmful consequences, the above period is extended to five years. Except as otherwise provided by law.
The period specified in the preceding paragraph shall be calculated from the date when the illegal act occurs; if the illegal act is continuous or continuing, it shall be calculated from the date when the illegal act ends.
The continuous state of illegal acts refers to the situation where several independent illegal acts are continuously carried out based on the same illegal intention and violate the same regulatory provisions.
The continuing status of an illegal act refers to the fact that after an illegal act is committed, the illegal status of the act is still continuing.
Chapter 2 Discretionary Levels and Applicable Situations
Article 10 Reduced punishment in accordance with the law refers to punishment below the types and ranges of punishments stipulated in laws, administrative regulations and rules, except where warnings, notices of criticism, and confiscation of illegal income are applicable.
If the minimum fine amount is not specified but only the maximum fine amount is stipulated, the reduction of the fine shall not be applicable.
Article 11 Light punishment in accordance with the law refers to the application of lighter punishment within the types and ranges of punishments stipulated in laws, administrative regulations and rules, except for warnings, notices of criticism and confiscation of illegal income.
Article 12 Severe penalties in accordance with the law refer to the application of heavier penalties within the types and ranges of penalties stipulated in laws, administrative regulations and rules, except for warnings, notices of criticism and confiscation of illegal income.
Article 13 Anyone who falls under any of the following circumstances will not be punished in accordance with the law:
(1) The illegal conduct is minor and corrected in a timely manner without causing any harmful consequences;
(2) If the party concerned has sufficient evidence to prove that there is no subjective fault, and if laws and administrative regulations provide otherwise, such provisions shall prevail;
(3) The illegal act has exceeded the legal statute of limitations for punishment;
(4) Other circumstances stipulated in laws and administrative regulations that do not impose administrative penalties.
If the violation is committed for the first time and the harmful consequences are minor and corrected in a timely manner, no penalty may be imposed.
If administrative penalties are not imposed in accordance with the law, the parties concerned shall be educated.
Article 14 If a party has any of the following circumstances, the punishment shall be reduced in accordance with the law:
(1) Being seriously coerced or seriously induced by others to commit illegal acts;
(2) Cooperating with the State Financial Supervision and Administration Bureau and its dispatched agencies to investigate and deal with illegal activities and performing major meritorious services;
(3) Taking the initiative to confess illegal acts that have not yet been grasped by the supervision before inspection by the State Financial Supervision and Administration Bureau and its dispatched agencies;
(4) Taking the initiative to eliminate or reduce the harmful consequences of illegal acts before inspection by the State Financial Supervision and Administration Bureau and its dispatched agencies;
(5) The party concerned takes the initiative to refund the compensation and eliminate the harmful consequences of the illegal act;
(6) Laws, administrative regulations, and rules provide for other lighter punishments in accordance with the law.
Article 15 If a party has any of the following circumstances, he shall be given a lighter punishment in accordance with the law:
(1) Being coerced or tricked by others into committing illegal acts;
(2) Cooperate with the State Financial Supervision and Administration Bureau and its dispatched agencies to investigate and deal with illegal activities and perform meritorious service;
(3) Taking the initiative to confess illegal acts that have not been grasped by the supervision before the inspection by the State Financial Supervision and Administration Bureau and its dispatched agencies is completed;
(4) Taking the initiative to eliminate or reduce the harmful consequences of illegal acts before the inspection by the State Financial Supervision and Administration Bureau and its dispatched agencies is completed;
(5) The parties take the initiative to refund compensation and reduce the harmful consequences of illegal acts;
(6) Laws, administrative regulations, and rules provide for other lighter punishments in accordance with the law.
If the illegal act is minor, the subjective fault is minor, or the amount involved is significantly lower or the number of occurrences is significantly less, and the harmful consequences are minor, a lighter punishment may be given.
Anyone who plays a minor role in a joint illegal act may be given a lighter punishment.
Article 16 Anyone who falls under any of the following circumstances shall be severely punished in accordance with the law:
(1) Seriously violates prudent business rules and has caused or may cause cases or major risk events;
(2) Seriously violating the regulations on fair market competition and affecting the stability of the financial market order;
(3) Seriously infringes on consumer rights, attracts high social attention, and has a bad impact;
(4) Failure to cooperate with supervision and law enforcement in accordance with the law;
(5) The same responsible entity commits the same type of illegal act that violates the same qualitative basis again within five years after being subject to administrative punishment by the State Financial Supervision and Administration Bureau and its dispatched offices or being ordered to make corrections;
(6) The internal control of the organization is seriously lacking or seriously ineffective, and the illegal behavior involves a wide range of areas, has a large impact, or has universal or group characteristics;
(7) Committing illegal acts multiple times, the illegal acts last for a long time, the amount involved is large, or the illegal business accounts for a relatively large proportion;
(8) Lure, instigate or coerce others to break the law or bear legal liability on their behalf;
(9) Retaliating against whistleblowers, witnesses, inspectors or other supervisory personnel;
(10) Other situations that are egregious in nature, serious in nature, and highly harmful to society.
Article 17 In addition to not imposing administrative penalties in accordance with the law, if there are no circumstances of mitigation, lightness or severe punishment stipulated in these Measures, a moderate penalty shall be imposed in accordance with the law.
Article 18 If a party is subject to a lighter, reduced or heavier punishment at the same time, the party may reasonably consider the institutional level, market size, proportion of illegal business, amount involved, etc. based on the specific circumstances of the case, combined with local law enforcement practices and economic and social development levels. Other factors determine the final level of discretion.
Article 19 When imposing administrative penalties on banking and insurance institutions, if relevant responsible persons should be subject to administrative penalties in accordance with laws, administrative regulations, and rules, the responsible persons shall be punished in accordance with the law, and the internal accountability of the institution shall not be used only as a means of mitigating, mitigating, or not reasons for imposing punishment.
Article 20 The determination of the responsible person shall comprehensively examine factors such as the party's job responsibilities and performance, the relationship with the illegal act, the harmful consequences of the illegal act, the situation of stopping or opposing the implementation of the illegal act, and the correction of the illegal act.
When punishing multiple responsible personnel for the same matter, the responsibilities should be prioritized, and managers who are directly responsible or who play a decisive role in illegal acts should be given heavier penalties than other responsible personnel such as ordinary staff members in accordance with the law.
When determining the liability of the responsible person, the reasons for not being punished shall not be based on the fact that the person is not directly engaged in business management activities, has insufficient ability, has no relevant professional background, is controlled by shareholders, actual controllers, or other external interference.
Chapter 3 Fines and Confiscation of Illegal Income
Article 21 Where the amount of a fine has a certain range, it shall be divided into light fines, moderate fines and heavy fines within the corresponding range.
Article 22 In principle, the range of banking fines shall be determined according to the following standards:
(1) If the statutory fine range is from 50,000 yuan to 500,000 yuan, the standards of 50,000 yuan to less than 200,000 yuan, 200,000 yuan to less than 350,000 yuan, and 350,000 yuan to 500,000 yuan will be considered lighter or lighter respectively. Moderate or severe fines;
(2) If the statutory fine range is from 100,000 yuan to 300,000 yuan, the standards of 100,000 yuan to less than 150,000 yuan, 150,000 yuan to less than 250,000 yuan, and 250,000 yuan to 300,000 yuan will be considered lighter or lighter respectively. Moderate or severe fines;
(3) If the statutory fine range is from 200,000 yuan to 500,000 yuan, the standards of 200,000 yuan to less than 300,000 yuan, 300,000 yuan to less than 400,000 yuan, and 400,000 yuan to 500,000 yuan will be considered as lighter or lighter respectively. Moderate or severe fines;
(4) If the statutory fine range is from 500,000 yuan to 2 million yuan, the standard of 500,000 yuan to less than 1 million yuan, 1 million yuan to less than 1.5 million yuan, and 1.5 million yuan to 2 million yuan will be considered lighter or lighter respectively. Moderate and severe fines.
Article 23 In principle, the extent of fines in the insurance industry shall be determined according to the following standards:
(1) A light fine, which is more than the statutory minimum fine and less than 40% of the statutory maximum fine;
(2) Moderate fines, ranging from 40% to 70% of the statutory maximum fine;
(3) A heavy fine, which is more than 70% of the statutory maximum fine but not exceeding the statutory maximum fine.
Article 24 No administrative penalty of fines shall be imposed on a party for the same illegal act more than twice. If multiple legal norms violated by the same illegal act stipulate that a fine should be imposed, the fine shall be imposed in accordance with the regulation with a higher fine amount.
Article 25 Illegal gains refer to the money obtained from committing illegal acts, including the money actually received and the reduced expenditure due to the implementation of illegal acts. The acquisition of such money should have a direct causal relationship with the implementation of illegal acts.
Article 26 If a party has illegal gains, they shall, in principle, be confiscated according to the following standards:
(1) The balance of money obtained from committing illegal acts after deducting legal and necessary expenses shall be confiscated as illegal gains;
(2) The amount of compensation that the party concerned has refunded in accordance with the law before the administrative penalty decision is made shall be deducted from the illegal income. When imposing a fine that is a multiple of illegal income, it is generally not included in the calculation base of illegal income, except for cases where the illegal conduct is of a bad nature and the harmful consequences are serious.
(3) If the party concerned provides relevant bills, account books, etc. that can prove the directly related taxes and other legal necessary expenses, they can be deducted from the illegal gains.
Chapter 4 Supplementary Provisions
Article 27 The provincial offices of the State Administration of Financial Supervision and Administration may reasonably refine and quantify the levels, ranges and applicable circumstances of administrative penalties within their jurisdiction based on the economic and social development conditions of various regions and in accordance with these Measures.
Article 28 If the application of these Measures may be obviously inappropriate or unfair, or the objective circumstances of the application of the benchmark for penalty discretion have changed, the application may be adjusted with the approval of the principal person in charge of the State Financial Supervision and Administration Bureau or after collective discussion and approval. Materials or collective discussion records should be archived and retained as part of the law enforcement case file. Provincial dispatched offices that adjust the application of these Measures must report to the State Administration of Financial Supervision for approval.
Article 29 Persons who seriously violate administrative penalty work disciplines by abusing their power, engaging in malpractice for personal gain, dereliction of duty, changing the type and extent of administrative penalty decisions without authorization, etc. in the exercise of administrative penalty discretion shall be punished in accordance with the law; if a crime is constituted, they shall be punished in accordance with the law. Be held criminally responsible.
Article 30 The meanings of some terms used in these Measures are defined as follows:
(1) "Being coerced or deceived by others" refers to the situation where the party is threatened by others, which may cause greater reputation or property losses, or is lured, deceived or deceived by others, and the party does not commit illegal acts based entirely on his own will; "serious coercion" " refers to situations where threats may cause personal injury, or major reputation or property losses; "serious deception" refers to situations where the parties are deceived or deceived and based on major misunderstandings, leading to illegal acts.
(2) "Performance of meritorious service" refers to the reporting of illegal acts or case clues of other persons or other institutions that have not been grasped by the State Administration of Financial Supervision and its dispatched agencies, and the circumstances are verified to be true; "Performance of major meritorious service" refers to the performance of meritorious service. And make a major breakthrough in the case, or report major illegal acts or major case clues of other people or other institutions that are not known to the State Administration of Financial Supervision and its dispatched agencies, and the circumstances are verified to be true.
(3) "Before inspection" refers to before the State Administration of Financial Supervision and its dispatched agencies officially carry out audits, inspections, and investigations, which generally should be before the "On-site Inspection Notice" or other formal inspection, inspection, and investigation notices are served. “Before the inspection is completed” refers to the period before the State Administration of Financial Supervision and its dispatched agencies leave the site for inspection, inspection, and investigation.
(4) "Failure to cooperate with supervision and law enforcement in accordance with the law" refers to the use of negative means such as delay, slackness, evasion, etc. to fail to cooperate with the supervision and inspection work of the State Financial Supervision and Administration Bureau and its dispatched agencies in accordance with the law, but the circumstances do not constitute "rejection or obstruction of supervision according to the law" as stipulated by law. Check" behavior.
(5) In these Measures, "above" includes the original number, and "below" does not include the original number.
Article 31 The term "banking and insurance institutions" as mentioned in these Measures refers to commercial banks, rural cooperative banks, rural credit cooperatives and other financial institutions that accept public deposits, as well as development financial institutions, policy banks, etc. established in accordance with the law within the territory of the People's Republic of China. Insurance group (holding) companies, insurance companies, insurance asset management companies, and insurance intermediaries.
Financial asset management companies, financial asset investment companies, trust companies, financial leasing companies, finance companies, consumer finance companies, auto finance companies, currency brokerage companies, wealth management companies, financial holding companies and national financial supervision and administration companies established in accordance with the law within the territory of the People's Republic of China These Measures shall apply to other institutions supervised by the General Administration and its dispatched agencies.
Article 32 These Measures shall be interpreted by the State Financial Supervision and Administration Bureau and shall come into effect on May 1, 2024.