Laws of the Guangdong Province

Regulations of Shenzhen Special Economic Zone on severely Cracking down on the Malfeasances of Manufacturing or Selling the Counterfeit, Fake or Inferior Commodities

(Originally adopted at the Seventeenth Meeting of the Standing Committee of the First Shenzhen Municipal People' s Congress on July 24, 1993. Revised for the first time at the Twenty-third Meeting of the Standing Committee of the First Shenzhen Municipal People' s Congress on June 18, 1994 in accordance with the Resolution on Revision of Articles 39,40,45 and 62 of Regulations of Shenzhen Special Zone on severely Cracking down on the Malfeasances of Manufacturing or Selling the counterfeit, fake or inferior Commodities. Revised for the second time at the Fifteenth Meeting of the Standing Committee of the Second Shenzhen Municipal People' s Congress on May 27, 1997 in accordance with the Resolution on Revision of Relevant Articles of Regulations of Shenzhen Special Zone on severely Cracking down on the Malfeasances of Manufacturing or Selling the counterfeit, fake or inferior Commodities. Revised for the third time at the Nineteenth Meeting of the Standing Committee of the Second Shenzhen Municipal People' s Congress on December 17, 1997 in accordance with the Resolution on Revision of Articles 40,41,46,47, and 48 of Regulations of Shenzhen Special Zone on severely Cracking down on the Malfeasances of Manufacturing or Selling the counterfeit, fake or inferior Commodities.)

Chapter ¢ñ General Provisions

Article 1 In order to crack down on the malfeasance of manufacturing or selling the counterfeit, fake or inferior commodities, protect the lawful rights and interests of the users and consumers, and maintain the economic order of the market of Shenzhen Special Zone (hereinafter referred to as Special Zone), these regulations are formulated.

Article 2 It is prohibited to manufacture or sell the counterfeit, fake or inferior commodities, impart the measures of manufacturing or selling the counterfeit, fake or inferior commodities, and provide conditions or services to the malfeasances of manufacturing or selling the counterfeit, fake or inferior commodities.

Article 3 "Fake or inferior commodities" in these regulations are:

(1) the mingled or adulterated commodities, the fake commodities passed off as genuine, the defective commodities passed off as good, and the unqualified products passed off as the qualified;

(2) the commodities that don' t accord with national, trade or local standards of ensuring physical health and the safety of the person or property, or the commodities that have unreasonable dangers to the physical health and the safety of the person or property;

(3) the expired, stale, or deteriorated commodities;

(4) the commodities disused by official decrees of the State;

(5) the commodities whose marked technical index don' t accord with the fact and which don' t have the due use value.

Article 4 "Counterfeit commodities" in these regulations are:

(1) the same or similar commodities marked the same or similar registered trademarks without permission of the owners of the registered trademarks;

(2) the commodities with forged marks of famousness and high quality or authentication, or the commodities with forged registration numbers of approval, origins, names or shop names and address of others;

(3) the commodities with forged patent mark, patent number or the serial number of manufacturing license;

(4) the copies of audio-visual products or computer softwares without permission of the obligees.

Article 5 The administrative department of industry and commerce and the administrative department for technical supervision (hereinafter referred to as the competent departments) are the competent departments for investigating and dealing with the counterfeit, fake or inferior commodities. Other relevant administrative departments are responsible for investigating and dealing with the counterfeit, fake or inferior commodities within the scope of their respective official powers and duties.

Article 6 The users, consumers, social organizations of protecting the lawful rights and interests of the users and consumers, press units and other organizations as well as individuals may exercise social supervision over the manufacturers and sellers of the counterfeit, fake or inferior commodities.

Chapter ¢ò Obligations of Manufacturers

Article 7 "Manufacturers" referred to in these regulations means the units (hereinafter referred to as manufacturing units) and individuals who manufacture or process the commodities or entrust others to manufacture or process the commodities, or supervise the manufacturing and processing of commodities.

The manufactures must observe the laws and regulations governing the quality of commodities and implement relevant quality standards of commodities.

Article 8 The legal representative or person in charge of the manufacturing unit is responsible for the commodity quality manufactured by this unit, and shall not force, instigate or connive the working staff of this unit to manufacture the counterfeit, fake or inferior commodities.

Article 9 The organ and personnel for quality inspection of the manufacturing unit shall be responsible for the quality inspection of the commodities, and shall not issue the certificates of quality to the unqualified products.

Article 10 The commodities, which don' t reach the prescriptive criterion or grade but still have certain use value and don' t exist unseasonable dangers to physical health and the safety of the person or property, must be marked with the words of "shopworn goods" , "substandard goods" or "defective goods" at the distinctive places of the commodities or their package before sale.

Chapter ¢ó Obligations of Sellers

Article 11 "Sellers" referred to in these regulations means the units (hereinafter referred to as sales units) and individuals who sell or entrust others to sell the commodities.

The sellers must strictly observe the laws and regulations governing the quality of commodities.

Article 12 The legal representative and person in charge of the sales unit shall be responsible for the quality of commodities that this unit sells, and shall not force, instigate or connive the working staff of this unit to sell the counterfeit, fake or inferior commodities.

Article 13 The purchaser of the sales unit shall not purchase the counterfeit, fake or inferior commodities.

Article 14 The relevant persons in charge and the quality inspection personnel of the sales unit shall observe the system of check and acceptance of purchased commodities. If they find out counterfeit, fake or inferior commodities, they shall report to the competent departments or other relevant departments.

Chapter ¢ô Obligations of Relevant Parties

Article 15 "Relevant parties" referred to in these regulations means the units or individuals providing conditions or services for manufacturing or selling the commodities. Relevant parties must strictly observe the provisions of relevant laws and regulations when providing conditions or services for manufacturing or selling the commodities.

Article 16 The lessor of the ground or equipments shall supervise the conditions that the leasee uses the ground or equipments. If the lessor finds that the leasee makes use of the ground or equipments to manufacture or sell the counterfeit, fake or inferior commodities, he shall report to the competent departments or other relevant departments immediately.

Article 17 No unit or individual may print and sell the fake trademark signs, fake marks of famous brands and quality products as well as fake authentication marks.

When printing the registered trademark signs, marks of famous brands and quality products, authentication marks or print the packages and nameplates that include the registered trademark signs, marks of famous brands and quality products, authentication marks, the printer shall examine relevant certification documents and duplicate them for keeping on files. The printer shall not print it unless the consigner can provide certification documents.

The printer shall not transfer the printed trademark signs, marks of famous brands and quality products, authentication marks or the packages and nameplates that include the registered trademark signs, marks of famous brands and quality products, authentication marks to others except the consigners.

Article 18 If the depositaries and carriers find the counterfeit, fake or inferior commodities when they store and transport the commodities, they shall refuse to provide the deposit or transport services, and shall report to the competent departments or other relevant departments.

Article 19 The advertising operators shall examine relevant certificates and the advertisements' contents according to relevant provisions of laws and regulations, and shall not provide advertising services to the counterfeit, fake or inferior commodities by the means of producing, publishing and broadcasting, posting, etc.

Chapter ¢õ Administration

Article 20 The competent departments and other relevant administrative departments shall perform their respective powers and duties and cooperate according to the provisions of relevant laws and regulations in their works of investigating and dealing with the counterfeit, fake or inferior commodities.

Article 21 The administrative law enforcement personnel who investigate and deal with the counterfeit, fake or inferior commodities may only be on duty with the Certificate for Administrative Execution issued after being trained and assessed eligible.

When the administrative law enforcement personnel investigate and deal with the counterfeit, fake or inferior commodities, there shall be at least two administrative law enforcement persons to take part in and they shall show the Credentials of Administrative Execution to the party.

Article 22 When the administrative law enforcement personnel investigate and deal with the counterfeit, fake or inferior commodities, they have powers to investigate and collect relevant evidences and materials according to law. The units and individuals investigated shall report truth and provide necessary materials. No unit or individual may hinder or interfere with the law enforcement activities.

The administrative law enforcement personnel shall keep the party' s legitimate technical and business secrets confidentially.

Article 23 When the administrative law enforcement departments and their administrative law enforcement personnel investigate and prosecute the counterfeit, fake or inferior commodities, they shall trace the origins, manufacturers, suppliers, sellers, depositaries, transporters and other relevant parties of the counterfeit, fake or inferior commodities involving the investigated and prosecuted case.

Article 24 When the competent departments and other relevant administrative departments investigate and deal with the counterfeit, fake or inferior commodities, if they find that the origins, manufacturers, suppliers, sellers, depositaries, transporters and other relevant parties of the counterfeit, fake or inferior commodities are outside Special Zone, they shall report to the superior departments and inform the case to the relevant departments outside of Special Zone and assist their investigation.

Article 25 For the investigated cases of counterfeit, fake or inferior commodities with clear facts, conclusive evidences and a fine of less than 3000 yuan, if the parties have no dissents, the competent departments may impose punishment on the spot. If the punishment is imposed on the spot, the competent departments shall make written decision of punishment on the spot.

If the punishments are imposed on the spot according to the preceding paragraph, the administrative law enforcement personnel shall make on-the-spot records. The records made on the scene shall record the basic conditions of the parties, main facts of the malfeasances, contents of the punishments, and shall be signed by administrative law enforcement personnel and the parties.

Article 26 For the cases of counterfeit, fake or inferior commodities except those that may be punished on the spot according to the preceding article, the competent departments shall investigate immediately after finding or receiving reports. If the cases accord with the conditions of placing a case on file, they shall be put on record.

Article 27 The competent departments which investigate and deal with the counterfeit, fake or inferior commodities shall make a treatment decision within 90 days from the date on placing the case on file; For the important and complex cases, with an approval of the chief administrative officers of the district or superior competent departments, the period can be extended, but the time extended cannot exceed 90 days.

Article 28 For the following sequestered or attached commodities, the competent departments may dispose them anticipatorily after taking other measures of perpetuating testimony:

(1) the fresh and live commodities that are liable to be destroyed;

(2) the commodities that are easy to be putrid or deteriorated;

(3) other commodities that are difficult to be preserved.

Article 29 With an approval of the chief administrative officers of the district or superior competent departments, the competent departments may decide to sequester or attach the suspected counterfeit, fake or inferior commodities. The time of sequestration or attachment shall not exceed 60 days. Under special circumstances, with an approval of the chief administrative officers of the municipal competent departments, the time can be extended, but the extended time shall not exceed 90 days.

When sequestering or attaching the suspected counterfeit, fake or inferior commodities, the competent departments shall make written decisions and serve them to the parties.

When sequestering or attaching the suspected counterfeit, fake or inferior commodities, the competent departments shall make the lists of sequestration or attachment, which shall be signed by the parties. If the parties are not present or refuse to sign, the administrative law enforcement personnel shall invite the eyewitnesses to sign on the lists of sequestration or attachment.

Article 30 For the sequestered or attached counterfeit, fake or inferior commodities, the competent departments shall make expert' s conclusions within 7 working days from the date on sequestering or attaching them; If the competent departments cannot make expert' s conclusions in specified period because of the limitations of detecting technique, with an approval of the chief administrative officer of the district or superior administrative department for technical supervision, the competent departments may extend the probative period duly, but the period shall not exceed 30 days at the longest.

If the commodities are not counterfeit, fake or inferior commodities with an appraisal or the competent departments fail to make expert' s conclusions within the time limit, they shall be removed the seal or released of the distress with no delay.

Article 31 The competent departments shall set up the archives system to the manufacturers, sellers and relevant parties of the counterfeit, fake or inferior commodities.

For the manufacturers and sellers of the counterfeit, fake or inferior commodities, besides being imposed punishments according to the provisions of these regulations, the competent departments may hang the warning sign of "manufacturer of counterfeit, fake or inferior commodities" or "seller of counterfeit, fake or inferior commodities" at the distinct site of the place where they manufacture or sell the counterfeit, fake or inferior commodities for 10 days.

Article 32 If the parties are not satisfied with the decisions of sequestration, attachment or punishment made by the district competent departments, they may apply to municipal competent departments for reconsideration within 15 days from receipt of the written decisions. If the parties are not satisfied with the decisions of sequestration, attachment or punishment made by municipal competent departments, they may apply for reconsideration to the organization for administrative review of Shenzhen Municipal People' s Government within 15 days from receipt of the written decisions. If the parties are not satisfied with the review decisions yet, they may file lawsuits to people' s court within 15 days from receipt of the written review decisions.

During the period of review or lawsuit, the implementation of the decisions of sequestration, attachment or punishment doesn' t suspend, except the laws and regulations have separate provisions. If the parties fail to apply for reconsideration or file lawsuits within the time limit and don' t implement the punishment decisions, the competent departments may enforce them coercively or apply to the people' s court for coercive enforcement according to law.

Article 33 The confiscated counterfeit, fake or inferior commodities shall be dealt with by the competent departments and other relevant administrative departments according to law.

Article 34 The competent departments shall regularly proclaim the designations or names, shop names, addresses, names of the enterprises' legal representatives or the persons in charge of the manufacturers, sellers and relevant parties of the counterfeit, fake or inferior commodities as well as the names of the counterfeit, fake or inferior commodities or detecting results.

Chapter ¢ö Social Supervision

Article 35 If the users and consumers are damaged because of the counterfeit, fake or inferior commodities, they have rights to appeal to the social organizations or other relevant departments that protect their rights and interests, or may file lawsuits directly to the people' s court.

Article 36 Any unit or individual who finds the malfeasances of manufacturing or selling the counterfeit, fake or inferior commodities has a right to report to the competent departments and other relevant departments.

For the units or individuals meritorious to report the manufacturers, sellers or other relevant parties of the counterfeit, fake or inferior commodities, the competent departments or other relevant departments shall give rewards to them.

The competent departments and other relevant departments shall keep confidential for the reporters. If necessary, the public security organization shall take measures to protect the reporters' safety.

Article 37 The social organizations that protect the rights and interests of the users and consumers perform the following duties in prohibiting the malfeasances of manufacturing or selling the counterfeit, fake or inferior commodities:

(1) to accept the users and consumers' complaint about the manufacturers, seller and relevant parties of the counterfeit, fake or inferior commodities, to investigate the complaint, and to put forward handling proposals to the competent departments or other relevant administrative departments;

(2) to provide measures of identifying the counterfeit, fake or inferior commodities and consulting services on protecting the rights and interests of the users and consumers for the users and consumers;

(3) to take part in investigating, dealing with and testing the counterfeit, fake or inferior commodities, and to promulgate to the society the designations or names, shop names, addresses, names of the enterprises' legal representatives or the persons in charge of the manufacturers, sellers and relevant parties of the counterfeit, fake or inferior commodities as well as the names of the counterfeit, fake or inferior commodities or detecting results that have been confirmed by the competent departments;

Article 38 When the working staff of the social organizations that protect the rights and interests of the users and consumers perform the duties, relevant units and individuals shall cooperate and provide convenience.

Article 39 The press units supervise the malfeasances of manufacturing or selling counterfeit, fake or inferior commodities through the following ways:

(1) to promulgate the designations or names, shop names, addresses, names of the enterprises' legal representatives or the persons in charge of the manufacturers, sellers and relevant parties of the counterfeit, fake or inferior commodities as well as the names of the counterfeit, fake or inferior commodities or detecting results according to the entrustment of the competent departments or the social organizations that protect the rights and interests of the users and consumers;

(2) to disclose the malfeasances involving the counterfeit, fake or inferior commodities;

(3) to provide measures of identifying the counterfeit, fake or inferior commodities and consulting services on protecting the rights and interests of the users and consumers for the users and consumers.

Chapter ¢÷ Legal Responsibilities

Article 40 For those who manufacture the counterfeit, fake or inferior commodities, the competent departments or other relevant administrative departments shall enforce them to stop manufacturing, confiscate the counterfeit, fake or inferior commodities as well as the tools, equipments and raw materials used in manufacturing or processing, confiscate the illegal gains, and may also impose a fine more than one time but less than 2 times of the total value of the manufactured counterfeit commodities and more than one time but less than 3 times of the total value of the manufactured fake or inferior commodities, and order them to suspend business for internal rectification, or the administrative department of industry and commerce shall revoke the Business License according to law. For those who sell the counterfeit, fake or inferior commodities, the competent departments or other relevant administrative departments shall enforce them to stop selling, confiscate the counterfeit, fake or inferior commodities as well as the illegal gains, and may also impose a fine more than 50 percent but less than 2 times of the total value of the counterfeit commodities and more than 50 percent but less than 3 times of the total value of the fake or inferior commodities, and may order them to suspend business for internal rectification, or the administrative department of industry and commerce shall revoke the Business License according to law.

Article 41 For those who manufacture the following counterfeit, fake or inferior commodities, the competent departments or other relevant administrative departments shall enforce them to stop manufacturing, confiscate the counterfeit, fake or inferior commodities as well as the tools, equipments and raw materials used in manufacturing and processing, confiscate the illegal gains, and may also impose a fine more than one time but less than 3 times of the total value of the counterfeit commodities and more than one time but less than 5 times of the total value of the fake or inferior commodities, and the administrative department of industry and commerce shall revoke the Business License according to law. For those who sell the following counterfeit, fake or inferior commodities, the competent departments or other relevant administrative departments shall enforce them to stop selling, confiscate the counterfeit, fake or inferior commodities as well as the illegal gains, and may also impose a fine more than 50 percent but less than 3 times of the total value of the counterfeit commodities and more than 50 percent but less than 5 times of the total value of the fake or inferior commodities, and order them to suspend business for internal rectification, or the administrative department of industry and commerce shall revoke the Business License according to law:

(1) the counterfeit, fake or inferior food, drink, wine, medicine, cosmetic, medical apparatus and instruments, medical health materials or other commodities injurious to human' s health;

(2) the counterfeit, fake or inferior electrical equipments, pressure-vessels, inflammable and explosive goods, and other commodities injurious to the safety of the persons and properties;

(3) the counterfeit, fake or inferior chemical fertilizer, pesticide, veterinary medicine, seeds, cement, steel, or other important materials for production.

Article 42 For the legal representative or the person mainly in charge of the unit who manufactures or sells the counterfeit, fake or inferior commodities as well as provides conditions and services for manufacturing or selling the counterfeit, fake or inferior commodities, the competent departments shall impose a fine more than 10,000 yuan but less than 100,000 yuan, and relevant departments shall give administrative sanctions.

The persons that have been punished according to the preceding paragraph are prohibited to hold the post of legal representative or the person mainly in charge of the unit within 3 years and to undertake private industry and commerce.

Article 43 If the personnel for quality inspection issue the quality certificates to the counterfeit, fake or inferior commodities or they are fully aware the commodities are counterfeit, fake or inferior but still check and accept them, they shall be confiscated the illegal gains, be fined more than 10,000 yuan but less than 30,000 yuan by the competent departments, and be given administrative sanctions by relevant departments.

Article 44 If the purchasers of the sales unit purchase the counterfeit, fake or inferior commodities intentionally, they shall be confiscated the illegal gains and be fined more than 10 percent but less than 20 percent of the procurement amount of money, but the fine shall not be less than 10,000 yuan at the least.

Article 45 If any unit or individual is fully aware that others are manufacturing or selling counterfeit, fake or inferior commodities but still provides ground, equipments and other conditions for them, the competent departments shall order them to stop providing ground, equipments and other conditions, confiscate the collected rents and use fees, and impose a fine more than 5 times but less than 10 times of the collected rents or use fees.

Article 46 For any unit or individual printing or transferring the fake trademark signs, authentication marks and marks of famous brands and quality products, the competent departments shall order them to stop printing or transferring, confiscate the illegally printed or transferred fake trademark signs, authentication marks, marks of famous brands and quality products, printing tools, equipments and raw materials as well as the illegal gains, impose a fine more than one time but less than 5 times of the total value of the printed or transferred fake trademark signs, authentication marks and marks of famous brands and quality products, and order the party to suspend business for internal rectification, or the municipal administrative department of industry and commerce detains the Business License temporarily. If the party has reached the rectifying and reforming requirements after an examination, the administrative department of industry and commerce shall return the Business License.

Article 47 If the depositaries and carriers are fully aware that these commodities are counterfeit, fake or inferior but still store and transport them, the competent departments shall confiscate the collected storage charges and traffic expenses, impose a fine more than 5 times but less than 10 times of the collected storage charges and traffic expenses, and order them to suspend business for internal rectification, or the administrative department of industry and commerce detains the Business License temporarily. If the party has reached the rectifying and reforming requirements after an examination, the administrative department of industry and commerce shall return the Business License.

Article 48 To the advertising operators who fail to examine relevant certificates and the advertisements' contents according to law and provide advertising services for the counterfeit, fake or inferior commodities, the administrative department of industry and commerce shall impose the following punishments:

(1) to enforce them to stop releasing advertisements;

(2) to order them to rectify publicly;

(3) to confiscate the advertising fees;

(4) to impose a fine more than 5 times but less than 10 times of the advertising fees;

(5) to revoke the License for Advertising Operation.

Two or more punishments stipulated in the preceding paragraphs may be imposed at the same time.

Article 49 For those who impart the measures of manufacturing or selling the counterfeit, fake or inferior commodities, the competent departments shall confiscate the illegal gains and impose a fine more than 10,000 yuan but less than 50,000 yuan; For those who impart the measures of manufacturing or selling the counterfeit, fake or inferior commodities that are injurious to the human' s health and the safety of the persons or properties, the competent department shall impose a fine more than 50,000 yuan but less than 100,000 yuan.

Article 50 For those who hinder the administrative law enforcement personnel to perform the official business, the public security organization shall deal with them in accordance with Regulations of the People' s Republic of China on Punishments in Public Order and Security Administration.

Article 51 For the functionaries of the State who have one of the following conditions, the unit where they work or the superior competent departments shall impose the administrative sanctions:

(1) making use of the functions and powers to cover up for the units or individuals who have illegal behaviors listed in these regulations;

(2) having the responsibilities of investigating but failing to perform the legal functions and powers to the units or individuals who have illegal behaviors listed in these regulations;

(3) abusing the powers and exploiting the public offices for private purposes to retaliate and frame the reporters who impeach or disclose the illegal behaviors listed in these regulations;

(4) making use of the functions and powers as well as the positions to interfere with and hinder the administrative law enforcement personnel to investigate and deal with the counterfeit, fake or inferior commodities by the measures of intercession and so on.

Article 52 If the persons violating the law have one of the following conditions, they shall be punished with severity:

(1) to manufacture or sell the counterfeit, fake or inferior commodities specially or provide conditions or services for manufacturing or selling the counterfeit, fake or inferior commodities specially;

(2) to manufacture or sell the counterfeit, fake or inferior commodities with a large amount;

(3) the counterfeit, fake or inferior commodities have caused personal injury or relatively big property loss to others;

(4) to manufacture or sell the counterfeit, fake or inferior commodities and repeat the offense after investigated and prosecuted by the competent departments;

(5) to retaliate the parties who report the malfeasances of manufacturing or selling the counterfeit, fake or inferior commodities;

(6) to enforce others to purchase the counterfeit, fake or inferior commodities;

(7) the manufacturers and sellers arbitrarily unseal, transfer, destroy or sell the products sealed up for keeping;

(8) to interfere with or hinder the administrative law enforcement personnel to exercise the public functions;

(9) to refuse to provide or fail to provide true conditions about the origin, manufacturer, supplier, seller, depositary, transporter and other relevant parties of the counterfeit, fake or inferior commodities involving the investigated or dealt with case.

Article 53 If the parties violating the law have one of the following conditions, they may be imposed lesser punishments, mitigated the punishments or exempted from punishments:

(1) to provide true conditions about the origin, manufacturer, supplier, seller, depositary, transporter and other relevant parties of the counterfeit, fake or inferior commodities involving the investigated or prosecuted case;

(2) to impeach other malfeasances and demonstrate meritorious services;

(3) to positively take measures to effectively prevent the counterfeit, fake or inferior commodities from causing damages.

Article 54 If the persons violating the law refuse to provide or truly provide relevant materials, so that the competent departments fail to determine the total amount of the counterfeit, fake or inferior commodities, the total amount shall be determined as 10 times of the amount of the seized counterfeit, fake or inferior commodities.

Article 55 If the parties violate the provisions of these regulations and constitute crimes according to Criminal Law, they shall be removed to the judicial department and be prosecuted for the criminal responsibilities.

Article 56 If the parties violate the provisions of these regulations and cause damages to the persons or properties of others, they shall bear civil responsibilities according to laws and regulations except being prosecuted criminal or administrative responsibilities in accordance with the law.

Chapter ¢ø Supplementary Provisions

Article 57 "More than" and "less than" referred to in these regulations include this number.

Article 58 "Total value of the counterfeit, fake or inferior commodities" referred to in these regulations is calculated according to the general retail prices of the non-fake or non-inferior commodities of the same kind.

The Shenzhen Municipal People' s Government may enact implementing rules according to these regulations.

Article 59 These regulations shall go into effect as of September 1, 1993.