The State Administration for Market Regulation ("SAMR") has recently issued the Guiding Opinions on the Proper Exercise of Discretion in the Imposition of Administrative Penalties by Administrative Departments for Market Regulation (Draft for Comment) (the "Draft for Comment") for public comment by September 18, 2019.
Major contents of the Draft for Comment include: the definition of discretion in imposition of administrative penalties and principles for the exercise of such discretion, establishment of sound criteria for discretion on imposing administrative penalties, rules for application of discretion on imposing administrative penalties, and other relevant matters. Among others, the Draft for Comment clearly specifies the circumstances under which no administrative penalties will be imposed, e.g. "the unlawful act is performed by a person younger than 14 years old", the circumstances where market regulators shall reduce the severity of an administrative penalty or impose a lenient administrative penalty according to law, e.g. "the unlawful act is performed under threat from others", the circumstances under which market regulators may reduce the severity of an administrative penalty or impose a lenient administrative penalty according to law, e.g. " the violator plays a secondary or assistance role in a jointly-committed violation", and the circumstances where harsher administrative penalties should be given, e.g. " the violator has received a criminal penalty or an administrative penalty for the same or similar violation in the past two years".