发布文号:
（Promulgated and implemented according to Order No. 7 [2004] of China Banking Regulatory Commission and revised according to the Decision of China Banking Regulatory Commission on Revising the Administrative Punishment Measures of China Banking Regulatory Commission as adopted at the 54th chairmen's utive meeting of China Banking Regulatory Commission on December 8, 2006）
Chapter I General Provisions
Article 1 For the purposes of regulating the imposition of administrative punishments by China Banking Regulatory Commission （hereinafter referred to as the CBRC） and its dispatched institutions, maintaining the order of the banking industry and protecting the legitimate rights and interests of the financial institutions in the banking industry, other entities and individuals, the present Measures are formulated in accordance with the Administrative Punishment Law of the People's Republic of China, Banking Supervision Law of the People's Republic of China, Law of the People's Republic of China on Commercial Banks and other relevant laws and administrative regulations.
Article 2 The CBRC and its dispatched institutions shall comply with the present Measures in giving an administrative punishment to a financial institution, any other entity or individual who violates any law, administrative regulation or rule.
Article 3 The CBRC and its dispatched institutions shall base their imposition of administrative punishments on the laws, administrative regulations as well as rules and regulations. The regulatory documents at a lower level than rules and regulations shall not establish any administrative punishment, nor may they be the basis for any administrative punishment.
Article 4 An administrative punishment shall comply with the principle of lawfulness, impartiality and openness.
The imposition of an administrative punishment shall be based on facts, and shall be in match with the facts, nature and circumstances of an illicit act as well as the extent of harm of the illicit act to the society.
An administrative punishment without statutory basis or without following the statutory proceedings shall be invalidated.
Article 5 The imposition of administrative punishments by the CBRC and its dispatched institutions shall comply with the principle of separating investigation from punishment.
The supervision and inspection departments of the CBRC and its dispatched institutions shall be responsible for accepting and investigating into the administrative punishment cases, put forward punishment opinions; the legal departments shall be responsible for reviewing the lawfulness and appropriateness of the punishment opinions and organizing hearings. The person-in-charge or chairmen's meeting （directors' meeting） of the CBRC and its dispatched institutions shall be responsible for deciding the administrative punishment.
Without being subject to the review of the corresponding legal department, no administrative punishment may be imposed.
Article 6 When the CBRC or any of its dispatched institutions imposes an administrative punishment upon a banking financial institution, it shall order this banking financial institution to impose a disciplinary sanction upon the directly liable director, senior managerial personnel and other directly liable persons. If any crime is constituted, it shall transfer them to the judicial organ for criminal liabilities.
Article 7 The administrative punishments consist of:
（1）warning;
（2）monetary penalty;
（3）confiscating illegal gains;
（4）ordering the banking financial institution involved to suspend business for rectification;
（5）revoking the financial business operation permit of the banking financial institution involved;
（6）disqualifying the directors or senior managerial personnel from their current positions;
（7）other administrative punishments as provided for by the laws and administrative regulations.
Article 8 A banking financial institution, any other entity or individual shall have the right to statement and the right to defense when it （he） is given an administrative punishment by the CBRC or any of its dispatched institution. If it （he） refuses to accept the administrative punishment, it （he） shall be entitled to apply for administrative reconsideration or lodge an administrative lawsuit.
Where a banking financial institution, any other entity or individual suffers any damage from an administrative punishment unlawfully imposed upon it （him） by the CBRC or by any of its dispatched institutions, it （he） shall be entitled to claim compensations pursuant to law.
Chapter II Jurisdiction and Application
Article 9 The CBRC shall impose administrative punishments on the following illicit acts:
（1） The illicit acts conducted by the banking financial institutions and their working personnel that are subject to the direct supervision of the CBRC;
（2） The illicit acts that have nationwide bad consequences; and
（3） Other illicit acts that the CBRC deems should be directly investigated and punished by it.
Article 10 An institution dispatched by the CBRC shall be responsible for imposing an administrative punishment upon the following illicit acts occur within its jurisdiction:
（1） The illicit acts conducted by the banking financial institutions that are subject to its supervision; and
（2） The illicit acts conducted by other entities and individuals.
Article 11 The administrative punishment as revoking a financial business operation permit shall be imposed by the banking supervisory institution, which issued this permit.
The administrative punishment of ordering a banking financial institution to suspend business for rectification shall be imposed by the banking supervisory institution, which ratified the establishment of this banking financial institution.
Article 12 Where there is any jurisdictional dispute between the institutions dispatched by the CBRC, it shall be reported to their common organ at the next higher level for designating jurisdiction.
Article 13 The superordinate banking supervisory institution may directly investigate into and punish an illicit act that occurs within the jurisdiction of a subordinate banking supervisory institution and that has caused severe consequences. It may authorize a subordinate banking supervisory institution to investigate into and punish an illicit act that should be investigated and punished by the superior organ.
Where a subordinate banking supervisory institution considers that an illicit act, which should be investigated and punished by it, is of gross violation and severe consequences, it may request the superordinate banking supervisory institution to investigate into and punish it.
Article 14 When the CBRC or any of its dispatched institutions imposes an administrative punishment, it shall order the party concerned to correct the illicit act immediately or within a time limit.
Article 15 Where a party concerned is under any of the following circumstances, it （he） shall be given a lighter or mitigated administrative punishment:
（1）Voluntarily eliminating or lessening the severity of the harm resulted from it （his） illicit act;
（2）Conducting the illicit act under coercion;
（3） Demonstrating meritorious service in helping the CBRC and its dispatched institution to investigate into and punish the illicit act;
（4） An illicit act conducted by a person aged 14-18 years old; or
（5） Other circumstances which allow it （him） to be given a lighter or mitigated administrative punishment.
Article 16 If an illicit act fails to be discovered within 2 years, no administrative punishment may be given unless it is otherwise provided for by the law.
The time limit as prescribed in the preceding Paragraph shall be computed from the day when the illicit act is conducted. If the illicit act is consecutive or continuous, the time limit shall be computed from the day when it ends.
Chapter III Acceptance, Investigation, Obtaining Evidence and Examination
Article 17 If the CBRC or any of its dispatched institutions discovers a suspect illicit act after it receives any exposure or delatio materials in the process of supervision and administration, and if it considers that it shall impose an administrative punishment upon preliminary examination, the supervision and inspection department shall fill out the case acceptance examination and approval form and accept the case.
Where a case is accepted, a case acceptance examination and approval form shall be filled out. Under the provisions in the present Measures regarding the jurisdiction, it shall be subject to approval of the person-in-charge of the supervision and inspection department of the CBRC, the banking supervisory bureau or a branch of the banking supervisory bureau.
If the CBRC or any of its dispatched institutions discovers a suspect committing any illicit act during the course of an on-site inspection, its supervision and inspection department may conduct an investigation for collecting the evidence in advance, then establish it as a case.
Article 18 The supervision and inspection department of the CBRC or any of its dispatched institutions shall comprehensively, objectively and impartially investigate into the suspect illicit act involved in a case, which has been accepted by it, so as to gather relevant evidences. Where necessary, it may conduct an on-the-spot inspection.
Article 19 When conducting an investigation or inspection, there shall not be less than 2 supervisors. They shall show the party concerned or relevant persons the valid certificates issued by the CBRC or its dispatched institution. The party concerned or relevant persons shall honestly answer their inquiries, help them in their investigation and inspection, and shall not obstruct or reject their investigation or inspection.
Written transcripts shall be made for the inquiries or inspection. The written transcripts shall state the time, place and contents of inquiries and bear the signatures or seals of the inquirees and the supervisors. If any of the inquirees requests for making supplements or corrections, he shall be allowed to do so. If any of the inquirees refuses to affix his signature or seal to the written transcripts, the supervisors shall note down the circumstance in the written transcripts.
Where a supervisor relates to the party concerned due to direct interests, he shall withdraw.
Article 20 When the CBRC or any of its dispatched institutions gathers evidences, it may obtain evidences by taking samples. In the event that the evidence may be lost or destroyed, or it is difficult to obtain the evidences later, it may, upon approval of the person-in-charge of the CBRC or its dispatched institution, register and keep these evidences in advance, then make a settlement decision within 7 days, during which the party concerned or relevant persons shall not destroy or remove them.
During the course of investigation or inspection, the CBRC or its dispatched institution may consult or copy the documents and materials of the banking financial institution relating to the inspection. The copies of the documents and materials shall, after being verified as being in conformity with the original ones, bear the seal of the banking financial institution under investigation or inspection. The documents and materials that are likely to be removed, concealed or destroyed may be sealed up for keeping. The CBRC or its dispatched institution may check the computer system employed by the banking financial institution for managing its business data.
Article 21 After completion of an investigation, the supervision and inspection department shall develop an investigation report.
An investigation report shall contain the following contents:
（1） The basic information of the party concerned being investigated or inspected;
（2） The facts and evidences collected after investigation and verification; and
（3） A proposal for imposing an administrative punishment or not imposing any administrative punishment or prohibiting from imposing any administrative punishment or transferring the case to the judicial organ for settlement, as well as the basis for the proposal.
If an on-the-spot inspection report of the supervision and inspection department meets the requirements as mentioned in the preceding Paragraph, it shall be deemed as an investigation report.
Article 22 Where a decision of administrative punishment is to be made, the supervision and inspection department shall make an Administrative Punishment Opinion Notification.
The Administrative Punishment Opinion Notification shall state the following contents:
（1）The basic information of the party to be punished;
（2）The facts relating to the act in violation of any law, administrative regulation, rule or regulation and the evidences on which the decision of administrative punishment to be made is based;
（3） The legal basis for the decision of administrative punishment to be made;
（4） The decision of administrative punishment to be made; and
（5） The right to statement, the right to defense and the right to a hearing in the case of a serious administrative punishment that the party concerned shall be entitled to according to law.
After the supervision and inspection department submits the Administrative Punishment Opinion Notification to the person-in-charge and obtains his approval, it shall issue an Administrative Punishment Opinion Notification to the party concerned.
Article 23 If the party concerned requests for making a statement and defense, it （he） shall submit the relevant written materials to the CBRC or its dispatched institution within 10 working days after it （he） receives the Administrative Punishment Opinion Notification.
The CBRC or its dispatched institution shall pay special attention to the arguments of the party concerned and its supervision and inspection department shall verify the facts, reasons and evidences raised by the party concerned. If the facts, reasons and evidences raised by the party concerned can hold water, they shall be adopted.
If the CBRC or its dispatched institution fails to inform the party concerned of the facts, reasons and basis for the imposition of the administrative punishment, or if it refuses to listen to the statement or argument of the party concerned, the administrative punishment can not be imposed unless the party concerned waived its （his） right to statement or right to defense.
Article 24 Where a decision of administrative punishment is made after the party concerned waives its （his） right to statement or right to defense, the supervision and inspection department shall make a Decision of Administrative Punishment, which shall be transferred to the legal department for examination and be accompanied by the Administrative Punishment Opinion Notification, investigation report, relevant evidences, statement and arguments of the party concerned and other pertinent materials.
The Decision of Administrative Punishment shall state the following contents:
（1）The name and domicile of the party concerned;
（2）The facts and evidences relating to the act in violation of any law, administrative regulation, rule or regulation;
（3）The type of and basis for the administrative punishment;
（4）The way of and time limit for the ution of administrative punishment;
（5）If the party concerned refuses to accept the decision of administrative punishment, the way of and time limit for it （him） to apply for administrative reconsideration or to lodge an administrative lawsuit; and
（6） The name and seal of the CBRC or its dispatched institution that makes the decision of administrative punishment, and the date of decision.
Article 25 The legal department shall examine the supervision and inspection department's Decision of Administrative Punishment, Administrative Punishment Opinion Notification, investigation report, relevant evidences, statement and argument of the party concerned and other pertinent materials. The examination items shall include:
（1）Whether this entity has jurisdiction or not;
（2）Whether the facts of the illicit act are clarified or not, whether the evidences are exact and adequate or not;
（3）Whether the nature of the illicit act is correctly determined;
（4）Whether the investigation and evidence obtainment procedure is lawful or not;
（5）Whether the application of laws, administrative regulations, and rules and regulations is correct or not;
（6）Whether the type and severity of punishment are proper or not; and
（7）Other items that shall be subject to examination pursuant to the law.
Article 26 Upon examination, the legal department shall deal with the aforementioned materials in light of the following different circumstances:
（1） If the facts of the illicit act are clear, the proofs are exact and adequate, the nature is correctly determined, the application of the laws, administrative regulations, rules and regulations is correct, the procedures are lawful and the type and severity of punishment are in match, the legal department shall return these materials to the supervision and inspection department after signing the consent;
（2） If the facts of the illicit act are clear, the evidences are exact and adequate and the procedures are lawful, but any of the following circumstances occurs, the legal department shall return them to the supervision and inspection department after it gives its opinions about making correction:
（a） The nature is inaccurately determined;
（b） The application of any law, administrative regulation, rule or regulation is wrong;
（c） The imposition of the type or severity of punishment is not in match.
（3） Where any of the following circumstances occurs, the legal department shall propose its opinions for correction, and return it, together with the materials as transferred by the supervision and inspection department, to the supervision and inspection department for further investigation and evidences:
（a）The facts of the illicit act are not clarified;
（b）There are insufficient evidences; or
（c）The procedures are not lawful
（4） If it has no jurisdiction, the legal department shall propose its opinions of transferring the case, which shall be submitted by the supervision and inspection department to the person-in-charge for approval. Upon approval thereof, the aforementioned materials shall be transferred to the competent organ.
Chapter IV Hearing
Article 27 Before the CBRC or any of its dispatched institutions makes a decision of severe administrative punishment, it shall, in the Administrative Punishment Opinion Notification, inform the party concerned of the right to request for a hearing.
The severe administrative punishments include:
（1） The relatively large sum of monetary penalties, including the monetary penalties in the sum of RMB 2 million yuan or more as decided by the CBRC, the monetary penalties in the sum of RMB 1 million yuan or more as decided by a banking supervisory bureau, the monetary penalties in the sum of RMB 500, 000 yuan or more as decided by a branch of a banking supervisory bureau as well as the monetary penalties in the sum of RMB 100, 000 yuan or more imposed upon individuals;
（2） An order to suspend business for rectification;
（3）Revoking financial business operation permit of a banking financial institution;
（4）Disqualifying the directors or senior managerial personnel from their current positions for 5 years or even for life;
（5）The administrative punishment decisions about other complicate or serious illicit acts.
Article 28 Where a party concerned requests for a hearing, it shall submit a hearing application to the CBRC or its dispatched institution within 3 working days after it receives the Administrative Punishment Opinion Notification. The application shall state its （his） claims and reasons and shall bear its （his） signature or seal.
If the Party concerned fails to apply for a hearing within the time limit, it （he） shall be deemed to have waived the right to hearing.
If the party concerned applies for a hearing, the CBRC or its dispatched institution shall notify the party concerned of the time and place of hearing not later than 7 working days before the hearing is held.
A hearing shall be held openly unless any state secret, business secret or personal privacy is involved therein.
Article 29 The legal department of the CBRC or of its dispatched institution shall form a hearing panel to be responsible for the work of hearing.
The hearing panel shall consist of 3 or 5 members, among whom one shall be from the supervision department, while the others shall be from the legal department. The chairperson of the hearing shall be the person-in-charge of the legal department of the CBRC or its dispatched institution.
The hearing panel shall specially designate a person to act as a clerk.
If the party concerned considers that any of hearing panel members is of direct interests to this case, it （he） shall be entitled to apply for his withdrawal. Whether the chairperson of the hearing should withdraw or not, it shall be decided by the person-in-charge of the CBRC or its dispatched institution who is responsible for the legal department. Whether any of the other members should withdraw or not, it shall be decided by the person-in-charge of the legal department of the CBRC or of its dispatched institution.
Article 30 A hearing shall proceed as follows:
（1） The chairperson of the hearing s the disciplines of hearing;
（2） The chairperson of the hearing s the reasons for hearing, names of the members of the hearing panel as well as the name of the clerk;
（3）The chairperson of hearing verifies the identification of the parties concerned. If a party concerned entrusts an agent to participate the hearing on its （his） behalf, the chairperson of the hearing shall verify the authorization issued by the party concerned.
（4）The investigators or inspectors present the facts relating to the illicit act conducted by a party concerned, the legal basis for administrative punishment, and the administrative punishment to be given to the party concerned;
（5）The parties concerned or their agents make arguments and cross-examinations.
（6）The chairperson of the hearing asks all parties concerned about their final opinions;
（7）The parties concerned sign the transcripts of hearing; and
（8）The chairperson of the hearing s the end of hearing.
Article 31 After the hearing ends, the legal department shall write a hearing report, in which it shall put forward a settlement proposal. It shall submit the hearing, together with the transcripts of hearing to the chairmen's meeting or directors' meeting.
Chapter V Decision and Execution
Article 32 Where a case meets the requirements as listed in Article 27 （1） and （2） of the present Measures, the supervision and inspection department shall submit the Decision of Administrative Punishment, Administrative Punishment Opinion Notification, investigation report, relevant evidences, statements and arguments of the parties concerned, examination opinions of the legal department and other relevant materials to the person-in-charge for examination and decision. A decision a severe administrative punishment shall be reported to the chairmen's meeting or directors' meeting for a decision upon collective discussion.
Article 33 The person-in-charge of the CBRC or its dispatched institution, the chairmen's meeting or directors' meeting shall make a decision in light of the following different circumstances:
（1） If it affirms an illicit act, which shall be subject to an administrative punishment, it shall, in light of the severity of the circumstance, make a decision of administrative punishment;
（2） If an illicit act is lenient and may be exempt from administrative punishment under the law, it shall decide not to impose any administrative punishment;
（3） If the illicit act cannot be supported by any fact, it shall not impose any administrative punishment; or
（4） If the illicit act has constituted any crime, it shall transfer the case to the judicial organ for criminal liabilities according to the Provisions on the Transfer of Suspected Criminal Cases by Administrative Organs for Law Enforcement.
Article 34 Where the CBRC or any of its dispatched institutions imposes an administrative punishment under the law, it shall make a formal Decision of Administrative Punishment.
Article 35 After the Decision of Administrative Punishment is announced, it shall be given to the parties concerned on the spot. If party concerned is not present on the spot, the Decision of Administrative Punishment shall be served upon the party concerned within 7 days under Articles 78 through 84 of the Civil Procedural Law of the People's Republic of China and Articles 247 and 248.
Article 36 The CBRC or any of its dispatched institutions may, pursuance to the streamlined procedures as provided for by the Administrative Punishment Law of the People's Republic of China, impose the following punishments on the spot:
（1）A monetary penalty in the sum of 50 yuan or less upon an individual; and
（2） A fine in the sum of 1, 000 yuan or less, or a warning upon a banking financial institution or any other entity.
Article 37 After a decision of administrative punishment is made, the party concerned shall ute it within the time limit as specified therein.
If the party concerned refuses to accept the decision of administrative punishment, it may apply for administrative reconsideration or lodge an administrative lawsuit, however, the ution of administrative punishment shall be suspended unless it otherwise provided for by the law.
Article 38 Where the CBRC or any of its dispatched institutions makes a decision of punishment as monetary penalty or confiscation of illegal gains, the party concerned shall, within 15 days after it （he） receives the Decision of Administrative Punishment, transfer or deposit the monetary penalty or illegal gains to the special bank account of the institution as designated by the CBRC for collecting monetary penalties on its behalf. Neither the CBRC nor any of its dispatched institutions nor any of its law enforcers may collect any monetary penalty by itself （himself）.
If the party concerned really has economic difficulties, and if it （he） has to extend the time limit for paying the monetary penalty or to pay for it by installments, it may, after filing an application and being approved by the CBRC or its dispatched institution, make payment at a later time or pay for it by installments.
Article 39 Where the CBRC or any of its dispatched institutions imposes a punishment as suspending business for rectification, it shall make an announcement in the Gazette of the CBRC or in newspapers unless any state secret is involved.
The announcement shall cover:
（1）The name and domicile of the banking financial institution;
（2）The reasons and legal basis for making the decision of suspending business for rectification; and
（3）Other matters necessary to be announced.
Article 40 Where the CBRC or any of its dispatched institutions imposes a punishment as revoking the financial business operation permit, it shall make an announcement in the Gazette of the CBRC or in newspapers unless any state secret is involved.
The announcement shall cover:
（1）The name and domicile of the banking financial institution;
（2）The reasons and legal basis for making the decision of revoking the financial business operation permit; and
（3） Other matters necessary to be announced.
The banking financial institution subject to such a punishment shall return its financial business operation permit to the CBRC or its dispatched institution.
Article 41 If the party concerned fails to ute the decision of administrative punishment, the CBRC or its dispatched institution may take the following measures:
（1） If the party concerned fails to pay a monetary penalty within the time limit, it shall be given an additional fine in the sum of 3% of the aforesaid monetary penalty per day; and
（2） To file with the people's court for compulsory ution.
Chapter VI Legal Liabilities
Article 42 In the imposition of an administrative punishment, if the CBRC or its dispatched institution is under any of the following circumstances, it shall be ordered to make corrections by its superordinate organ or by the supervision department, the directly liable person-in-charge and other directly liable persons may be given an administrative sanction:
（1）Having no legal basis for the administrative punishment;
（2）Unlawfully changing the type or severity of the administrative punishment; or
（3）Violating the statutory administrative punishment procedures.
Article 43 Where the CBRC or any of its dispatched institutions unlawfully takes any inspection or ution measure, which causes any personal injury or property damage to a citizen, it shall make compensations and shall give an administrative sanction to the directly liable person-in-charge and other directly liable persons. If the circumstances are serious and if any crime is constituted, the directly liable person-in-charge and other directly liable persons shall be subject to criminal liabilities.
Article 44 Where any of the working personnel of the CBRC or its dispatched institution, by taking the advantage of his position, extorts or accepts the property of any other person or collects monetary penalties and embezzles such payments, and if any crime is constituted, he shall be subject to criminal liabilities. If the circumstances are lenient and no crime is constituted, he shall be given an administrative sanction.
Article 45 Where the personnel of the CBRC or its dispatched institutions neglects his duties, fails to curb or punish the illicit acts that should have been curbed or punished and thus impair the legitimate rights and interests of the banking financial institution, other entities and individuals, public interests and banking order, the directly liable person-in-charge and other directly liable persons shall be given an administrative sanction. If the circumstances are serious and if any crime is constituted, they shall be subject to criminal liabilities.
Chapter VII Supplemental Provisions
Article 46 The specimen of legal documents required for the implementation of the present Measures shall be created by the CBRC. For other legal documents required for the law enforcement, if the CBRC has not created the specimen for such documents, the institution dispatched by the CBRC at the provincial level may do it.
Article 47 The words 'more', 'less' or 'within' as used in the present Measures shall include the said number or level itself.
Article 48 The power to interpret the Present Measures shall remain with the CBRC.
Article 49 The present Measures shall be implemented as of February 1, 2005.
