正 策 动 态

真实、准确、完整、及时。从业机构需在规定的时间范围内或使用者要求的时间限度内周密、完整和全面地披露真实可靠的确切信息，该等信息应包括所有影响消费者决策的信息。

遵循客观事实。信息披露应以客观事实，或有事实为基础的客观判断为依据，如实反映客观情况。

用语准确、精练、严谨、通俗易懂，使用有利于消费者接收、理解的方式。从业机构应使用足以引起消费者注意的显著方式披露与消费者切身利益相关的重要信息，解释说明产品及服务中的关键专业术语，并以适当方式向消费者确认其已接收完整信息。

The draft, combining the content of China’s Administrative Punishments Law and other regulations, makes the following provisions in the General Provisions.

First, it provides that penalties should be based on such factors as the fact, nature, circumstances, harmful consequences and the degree of subjective fault of the offender’s illegal act, to realise equivalent penalties.

Second, it affirms the principle of legitimacy of procedures and, in the event of complicated circumstances or major violations of the law, the people in charge of supervision should collectively discuss and decide on the administrative penalty.

Third, it applies the legal framework, regulations and relevant regulatory provisions in place at the time of the action as the basis for penalties, so the judgment remains consistent with the laws in force during the occurrence. However, in cases where the original regulations have been amended or repealed by the time of the administrative penalty decision, and the new regulations are more favourable to the individual, then the new regulations will be applied.

Finally, it clarifies the relationship between ordering corrections and the administrative penalties, so that where the relevant provisions grant an offender a period of time to make corrections, the period should be set as a prerequisite for the imposition of administrative penalties, and the period of time for correction must be clear and reasonable.

In addition, the draft also makes specific provisions on liability for jointly committing an offence, and the statute of limitations for penalties.

界定裁量阶次

Defining discretion

在此部分，《意见稿》主要界定了减轻处罚、从轻处罚、从重处罚的概念；列明不予处罚、减轻处罚、从轻处罚、从重处罚适用情形；明确认定人员责任考虑因素等，具体而言：

有违法行为已超出法定处罚时效等情形的，不予处罚。受他人胁迫或者诱骗实施违法行为的，从轻处罚；受他人严重胁迫或者严重诱骗实施违法行为的，减轻处罚。配合行政机关查处违法行为有立功表现的，从轻处罚；配合行政机关查处违法行为有重大立功表现的，减轻处罚。以金融监管总局及其派出机构检查与检查结束为两个时间节点，在检查结束前主动供述监管尚未掌握的违法行为及主动消除或者减轻违法行为危害后果的，从轻处罚；在检查前主动供述监管尚未掌握的违法行为及主动消除或者减轻违法行为危害后果的，减轻处罚。初次违法且危害后果轻微并及时改正的，监管机关可裁量是否予以处罚。

《意见稿》规定有十种从重处罚情形，有关主体应以之为戒，笔者认为主要应注重如下几点。第一，严守审慎经营规则。《意见稿》指出，在当事人违反审慎经营规则造成或有造成案件或重大风险可能的，应从重处罚；第二，注重消费者权益保护。严重损害消费者权益，社会关注度高、影响恶劣的，监管机构将依法从重处罚。第三，鉴前毖后，不贰过。被监管机构处罚或被责令改正后五年内，因同一类违法行为违反同一定性依据的，将被认定为“累犯”，被从重处罚。

The draft mainly: defines the concepts of mitigated penalties, lighter penalties and heavier penalties; sets out the circumstances under which no penalties, mitigated penalties, lighter penalties and heavier penalties are applicable; and clarifies the factors to be considered in determining liabilities, which are specifically as follows.

If an illegal act is beyond the statute of limitations for penalties, no penalties shall be imposed. If an offender is coerced or enticed by others to commit the offence, a lighter penalty shall be imposed; if an offender is seriously coerced or enticed by others to commit the offence, a mitigated penalty shall be imposed.

If an offender co-operates with the administrative authorities in investigating or dealing with an illegal act with meritorious performance, a lighter penalty shall be imposed; if an offender co-operates with the administrative authorities in investigating or dealing with an illegal act with significant meritorious performance, a mitigated penalty shall be imposed.

With the inspection and the end of inspection by the CBIRC and its local counterparts as two milestones, if a person voluntarily confesses illegal acts that are unknown to the regulatory authorities before the end of the inspection, and takes the initiative to eliminate or mitigate the harmful consequences of the acts, a lighter penalty shall be imposed; if this is done before the inspection, a mitigated penalty shall be imposed.

In the case of a first-time violation of the law with minor harmful consequences and timely correction, the regulatory authority may decide whether to impose a penalty.

The draft outlines 10 situations warranting heavier penalties, serving as a warning to those involved.

To watch

The author believes that the main focus should be on the following. First, strictly abide by the rule of prudent operation. The draft points out that if the parties violate the rules of prudent operation, resulting in or likely to cause cases or significant risks, heavier penalties should be imposed.

Second, focus on the protection of consumer rights and interests. Where serious damage is caused to consumer rights and interests with high social concern and negative impact, the regulatory authority will impose heavier penalties in accordance with the law.

Third, it is important to learn from past experience to prevent recidivism. If, within five years of being penalised or ordered to correct by the regulatory authority, a person violates the same legal basis for the same type of violation, he or she will be deemed to be “recidivist”, and subject to heavier penalties.

罚款幅度

Range of fines

银行业中，法定罚款幅度五万元至50万元的，以20万和35万为从轻、适中、从重罚款的分界点；法定罚款幅度10万元至30万元的，以15万和25万为从轻、适中、从重罚款的分界点；法定罚款幅度20万元至50万元的，以30万和40万为从轻、适中、从重罚款的分界点；法定罚款幅度50万元至200万元的，以100万和150万为从轻、适中、从重罚款的分界点。

保险业中，以法定最高罚款金额40%及法定最高罚款金额70%为从轻、适中、从重罚款的分界点。

同时，《意见稿》要求对当事人的同一违法行为，不得给予两次以上罚款的行政处罚。

In the banking industry, for statutory fine ranges from RMB50,000 to RMB500,000 (USD7,000-70,000), RMB200,000 and RMB350,000 are the cutoffs for lighter, moderate and heavier fines; for statutory fine ranges of RMB100,000 to RMB300,000, RMB150,000 and RMB250,000 are the cutoffs for lighter, moderate and heavier fines; for statutory fine ranges of RMB200,000 to RMB500,000, RMB300,000 and RMB400,000 are the cutoffs for lighter, moderate and heavier fines; and for statutory fine ranges of RMB500,000 to RMB2,000,000, RMB1 million and RMB1.5 million are the cutoffs for lighter, moderate and heavier fines.

In the insurance industry, 40% of the statutory maximum fine and 70% of the statutory maximum fine are used as the cutoffs for lighter, moderate and heavier fines. The draft requires that no administrative penalty of more than two fines shall be imposed on parties for the same offence.

违法所得

Proceeds from the offence

计算违法所得时，当事人已经依法退赔的款项，应当在违法所得款项中扣除。当事人提供相关票据、账册等能够证明直接相关的税款及其他合法必要支出，可以予以扣除。

When calculating proceeds from an offence, the amount that the party has already refunded in accordance with the law shall be deducted from the amount of the proceeds from the offence. Taxes and other lawful and necessary expenditures that can be proved to be directly related, as evidenced by the relevant receipts and ledgers provided by the concerned party, may be deducted.

结语

Conclusion