The State Administration for Market Regulation revised the reporting and reward mechanism for the first time and came into effect in December this year
Reporting major violations can be rewarded up to one million yuan
□ Our reporter Wan Jing
Recently, the State Administration for Market Supervision and the Ministry of Finance announced the Interim Measures for Reporting and Rewarding Major Violations in the Field of Market Supervision (hereinafter referred to as the “Interim Measures”), focusing on the quality and safety of food, drugs, special equipment, and industrial products involving the people. Major illegal acts in the field of life, health and safety "bright sword".
The "Interim Measures" stipulate that the reporting of major violations in the field of market supervision, that is, to report suspected crimes or be ordered to suspend production and business operations according to law, order to close down, revoke (cancel) licenses, large amounts of fines and confiscated illegal acts, the amount of rewards Up to 1 million yuan.
The "Interim Measures" will be formally implemented on December 1 this year.
The current "Procedures for Rewarding Persons with Meritorious Activities Reporting the Production and Sale of Counterfeit and Inferior Products" has been implemented for 20 years.
The promulgation of the “Interim Measures” is the first time the State Administration for Market Regulation has revised the reporting and reward mechanism after its establishment. It aims to better serve the reform of the market supervision system, improve the effectiveness of supervision and enforcement and consumer rights protection, and ensure the seriousness of the implementation of laws and regulations.
Vigorously improve the effectiveness of supervision
Build a multi-faceted co-governance pattern
The “Interim Measures” put the strengthening of the supervision of major violations in the field of people’s livelihood in the first place, targeting key industries and key areas with strong public opinion, social public opinion, and market supervision that are difficult and high-risk, such as food, medicine, special equipment, and industry. Product quality and safety are strictly supervised.
At the same time, in order to improve administrative efficiency and reduce administrative costs, the "Interim Measures" locks the scope of rewards as "major violations", that is, only rewards for reports of "major violations".
The "Interim Measures" restricts "major violations" as suspected crimes or illegal acts of administrative penalties such as ordering suspension of production and business, ordering closure, revocation (revocation) of licenses, and large amounts of fines and forfeitures.
Among them, as to how to define the amount of "larger fines and confiscated" that is prone to disputes, the "Interim Measures" clearly determine that the market supervision department at or above the provincial level should consult with the financial department of the government at the same level to determine it in light of actual conditions.
It is understood that there are currently 140 million market entities in my country, and it is far from enough to rely on the supervision and punishment of the regulatory authorities.
As early as April 2019, the State Administration for Market Regulation and the Ministry of Finance have initiated the revision of regulatory documents related to reporting and rewards, which has aroused widespread concern in the industry.
The industry generally believes that the promulgation of the "Interim Measures" is conducive to the establishment of a diversified and co-governance pattern of public participation, self-discipline of market entities, and coordination and cooperation of market supervision and law enforcement, further enhancing the effectiveness of supervision and optimizing the business environment.
Establish an internal whistleblower system
Effectively improve strike accuracy
Taking into account that special fields such as food and drugs are highly professional and technical, and major violations are often more concealed and difficult to detect, the "Interim Measures" specially set up an "internal whistleblower reward clause". With the approval of the financial department at the same level, the award standard stipulated in the preceding paragraph shall be appropriately increased.
Increasing the reward clauses for internal whistleblowers and appropriately raising the reward standard will help obtain clues on key cases and improve the accuracy of strikes.
In September 2019, the State Council made it clear in the "Guiding Opinions on Strengthening and Standardizing Interim and Ex-post Supervision" that it will implement key supervision in key areas.
Among them, it is required to give play to the role of social supervision, establish systems such as "whistleblower" and internal whistleblower, and give high rewards and strict protection to those who have reported serious violations of laws and regulations and major hidden dangers.
To this end, the "Interim Measures" have detailed regulations on how to protect whistleblowers, requiring market supervision departments at all levels to protect the legitimate rights and interests of whistleblowers in accordance with the law, strictly keep the whistleblower confidential, and not divulge relevant information of whistleblowers, and stipulate that information should be leaked. According to the seriousness of the circumstances, administrative sanctions will be given, and those that constitute a crime will be investigated for criminal responsibility in accordance with the law.
At the same time, the staff of the market supervision department in the process of implementing the reporting rewards forged or instigated or cooperated with others to forge the reporting materials and falsely claim the reporting bonus; vented to the reported person to help them evade investigation; and other persons who should bear legal responsibilities in accordance with the law The behavior of the crime will be subject to administrative sanctions based on the severity of the circumstances, and criminal responsibility will be investigated according to law.
The reporter of Rule of Law Daily noted that the “Interim Measures” also clarified the definition, powers and responsibilities of “whistleblower”, clarified that whistleblowers who have the right to apply for reporting rewards “should be natural persons”, and listed and excluded “market supervision and management”. Department staff or persons with statutory supervision and reporting obligations, the infringed party and its entrusted agent or interested party, the person who committed the illegal act (except internal reporters), and there is any evidence that the reporter has obtained other information due to the reporting behavior Any form of remuneration or reward given by market entities does not belong to the informant who should be rewarded.
At the same time, it strictly stipulates the consequences and legal responsibilities of whistleblowers forging materials, concealing facts, falsifying awards, false accusations, etc.
Raise the reward standard for reporting
Play a positive role
According to the "Interim Measures", there are 3 levels of rewards for reporting rewards.
The first level of reporting refers to the provision of detailed illegal facts and direct evidence of the reported party. The content of the report is completely consistent with the illegal facts, and the reported matter is verified to be a particularly serious illegal act or suspected crime.
The second level of reporting refers to the provision of illegal facts and direct evidence of the reported party, and the content of the report is completely consistent with the illegal facts.
The three-level report level refers to the basic illegal facts and related evidence of the reported party, and the reported content basically corresponds to the illegal facts.
The reward standard is the core component of the reporting reward system.
The "Interim Measures" raises the reward standard and the upper limit of the reward in the current regulations, and clarifies that the specific amounts of the three levels of reporting rewards are 5%, 3%, and 1% of the fines and confiscated amounts, and the minimum reward amounts are 5,000 yuan, 3,000 yuan, and 3,000 yuan, respectively. 1,000 yuan, the maximum amount of rewards for reporting a case is 1 million yuan, and the amount of rewards shall not exceed the upper limit.
If the amount of a single reward reaches more than 500,000 yuan (including 500,000 yuan), the market supervision and management department that issues the report reward fund shall determine it in consultation with the financial department of the government at the same level.
One of the highlights of the "Interim Measures" is to calculate the reward amount based on the "fines and confiscated money".
The relevant person in charge of the State Administration of Market Supervision introduced that through in-depth research and analysis of major violations in the field of market supervision, the amount of rewards is calculated based on "fines and confiscated", which is more effective, more scientific and easier to implement.
In the end, based on research and extensive solicitation of opinions, the "Interim Measures" clearly used "fines and confiscated" as the base to calculate the award amount.
Liu Junhai, a professor at the School of Law of Renmin University of China, believes that the uniform and clear reference basis for reporting rewards is determined in accordance with the final fines, which can in practice eliminate the risk of disputes with law enforcement agencies due to unclear rewards.
This will not only enable the market supervision departments at all levels to have clear enforcement standards when implementing the reporting rewards, but also protect the enthusiasm of the reporters.
The reward procedure is a necessary condition to ensure the effective implementation of the reporting reward system.
To this end, the "Interim Measures" further clarified and refined the reporting and reward procedures to ensure the institutionalization and standardization of the reward distribution process, and truly give full play to the positive incentive role of the reporting and reward system.