Analysis of administrative punishment cases (two)

(2007 August the province's administrative punishment case analysis will provide)

The Yichun Bureau of industry and Commerce

1, the administrative reconsideration case

[case]2006 year in September 27th, Yichun City Administration of industry and Commerce jointly with the client and carry out the inspection unit in Yichun petrochemical products quality inspection station testing personnel to Yifeng county quality monitoring of refined oil. Yifeng County Bureau of industry and Commerce sent to assist the inspection, and with the inspection team to Yifeng County of Dongxing oil products distribution company 0# diesel carried out field sampling. Sampling is accomplished by the Yifeng County Industrial and commercial bureau staff in petroleum products quality inspection station testing staff under the guidance of. The method of sampling is directly from the oil filling gun sampling, does not conform to the GB/T4756-1998 standard. The test results come out time is in October 10, 2006, Dongxing Yifeng County petroleum products company received the report of the time is November 30, 2006. The detection result is not qualified. Yifeng County Bureau of industry and commerce according to the test report, in January 18, 2007, issued the appropriate business sent word (2007) No. eleventh administrative punishment decision. Dongxing Yifeng County petroleum products company refuses to accept the punishment, apply for reconsideration in 2007 March 15 to the Yichun City Administration of industry and commerce, trade and Industry Bureau of Yichun city in May 9, 2007 to revoke the decision of administrative punishment.

[trial if the applicant is not satisfied with the decision on administrative penalty. The reasons are: 1, illegal procedure. Inspection unit did not participate in the sampling, do not meet the "commodity circulation quality monitoring measures" provisions of article fifteenth; sampling methods that do not comply with GB/T4756-1998 standards; no timely inform obligation. 2, the evidence is insufficient: only by the detection result can not be obtained by unqualified products as qualified products conclusion. The reconsideration organ considers that: 1, the sampling procedure does not conform to the law is not equal to the investigation of illegal procedure. The respondent program investigation in accordance with the law. 2, from the gas gun sampling is not in line with the GB/T4756-1998 standard, but under certain conditions such as oil tank liquid level in the middle, the sample still has certain representative, in accordance with the operating experience of professional and technical personnel, the detection results have demonstrated effectiveness, but alone cannot be used as the basis for a final decision, need other relevant evidence reinforcement. 3, test results out of the time is in October 10, 2006, but the respondent receives detection report time is November 27, 2006. "Merchandise quality monitoring approach" circulation notice within 5 working days starting time is detected person receives the results calculated starting from the administrative department for Industry and commerce. 4, the Applicant acknowledges that in the record, the applicant in the purchase without the required inspection, for certification, the daily management generally do not check and ask for purchase vouchers. Therefore, the respondent is not only the detection results to the unqualified products as qualified products conclusion. 5, the lack of evidence. Results of detection and the only reference value when the purchase is not in accordance with the provisions for inspection, certificate of facts is not enough to draw unqualified products as qualified products conclusion.

[comments] in this case mainly involves the following two aspects: the relationship between the 1, sampling procedures and investigation program. The sampling procedure to extract 2, does not meet the national standard samples, the detection results are proving validity.

"Administrative punishment law" thirty-seventh paragraph second, the administrative organ when collecting evidence, may obtain evidence through sampling. So sampling forensics can be used as part of the investigation and collection of evidence, the same procedure and investigation procedures, namely the thirty-seventh article of the law enforcement personnel shall not be less than two and the evidence to produce documents. The State Administration for Industry and commerce "Interim Provisions" procedure of administrative penalty and the administrative department for Industry and Commerce thirty-third of the sampling forensics increased the applicant shall present, and issue a list of items, by the case handling personnel and the parties sign or seal the provisions. In addition, a sampling procedure that no other provisions. The case handling personnel specifically what way to sample, has the right to freedom of choice, not involved in the investigation process is legitimate. But sampling a variety of ways, some scientific, some unscientific, using different sampling methods, testing out the results were completely different proof of its value, some can be used as evidence, and some need to together form a chain of evidence and other evidence, some completely without evidence of value. The GB/T4756-1998 standard is the oil liquid manual sampling of the national standard, unless it can be proven that the national standard method according to the operation experience of professional and technical personnel of the superior, or operating experience with extraction technology personnel sample no evidence value.

[thinking] "the circulation of commodity quality monitoring measures" provisions of article fifteenth: "monitoring samples required by the inspection unit sampling with the industrial and commercial administrative law enforcement personnel according to the provisions of extraction." "The sample shall seal sample, and recognized by the sampling personnel, industrial and commercial administrative law enforcement personnel, by monitoring the signature of the person." The State Administration for Industry and Commerce provisions, the administrative department for Industry and commerce law enforcement personnel cannot serve as the sampling. Sampling forensics is a scientific, highly specialized work, sampling procedures, methods, such as the number of must meet certain standards. If the law enforcement personnel as the sample, the appraisal conclusion inspection department issued by the state "this report only to charge", cause to be suspicious sampled impartiality, norms for the sampling of. to sum up, the industrial and commercial administrative law enforcement personnel on product quality evaluation, quality of the goods and shall be non crime scene evidence to distinguish random sampling, do not replace the monitoring personnel take samples as evidence, so as to ensure the legitimacy and effective evidence. (Yichun Bureau Regulations Department provides)

　　

2, some agricultural distribution company selling fake seeds

The introduction in April 27, 2007, Tonggu County Industrial and commercial bureau received complaints from Nanjing XX company, complained of a farming endowment the county distribution company with distribution of counterfeit the complainant company name, domicile "two. Nine" seed behavior, request for investigation. Verified: March 22nd 2007, an agricultural distribution company to breed name 65002 (Note: "two. Nine" seed the original code of variety) name, bought from outside the 15 meter 450 kilograms of nominal "two. Nine" hybrid rice in the county sales. The number of seeds in the product label, was marked with "manufacturer: Nanjing XX company, address: Jiangsu province Nanjing City Zhongling Street No. X, Tel: 025-8434XXXX", "XX repackaging unit: Jiangsu Seed Industry Co. Ltd., address: Nanjing city Zhongshan North Road X", "quarantine certificate number: Su check (04) word (rice) No. fourth, production date: 2004-10, packing time: 2004-11, origin: Jiangsu......" Such words. Then find out, the number of seeds from the sales of Jiangsu XX seed company independent production, packaging, counterfeit seeds using the complainant company name, domicile. In 2004, the complainant to use the "two. Nine" variety name and intellectual property rights in the licensed XX Jiangsu seed industry company, but not to the licensee served by any "two. Nine" complaints in 2004 production of seeds. To the time of the incident, the parties have to price 32 yuan / kg, sold the seeds 281 kilograms, the rest by the industrial and commercial administration seized. Think of two, treatment the County Bureau of industry and commerce, parties a agricultural distribution company distribution using the Nanjing XX company factory name, site "two. Nine" seed behavior, in violation of the "Anti Unfair Competition Law" fifth and third "product quality law" article fifth, article thirty-seventh. According to "Anti Unfair Competition Law" the twenty-first the first rotation terms and according to the "product quality law" the provisions of article fifty-third, the County Bureau of industry and Commerce made shall be ordered to immediately stop the illegal act, confiscate the fake seeds 169 kilograms to impose administrative fines of 10000 yuan penalty. Three, analysis of case in the case of the investigation and handling of the dispute, there are three differences: first, that the case should be identified as a business behavior and shall be in accordance with the provisions. "Seed law" article forty-sixth, article fifty-ninth qualitative punishment; the second view, the case for the distribution of counterfeit seed behavior, should according to "play the" rule third sixth paragraph qualitative punishment; the third view, the case for business use (the use of) other factory name, site seed behavior, should according to "Anti Unfair Competition Law" fifth article third qualitative and rotational punished according to "product quality law" provisions of article fifty-third. In view of the different point of view, the bureau held a special case approval group meeting discussed. This case involved a "false", "fake commodities" and "other people's factory name, the site of goods" three related behavior concept that the exact legal provisions, the administrative punishment that is a strict proof, proof is a reasoning process, so the administrative punishment reasoning is a kind of strict reasoning. The legal attributes we want to infer a fact behavior, the definition and grasp its connotation and denotation, not only from the Chinese characters itself word sense, but mainly from the "legal terminology" perspective to the strict citation; otherwise, the application of national legislation intention and our law enforcement may differ. "The whole" is "a legal citation of the term" law of seed of. The forty-sixth article of the law, the following situation: ① aril in non seed to seed; ② the seeds as he kind of seeds; the seed species, varieties, origin and contents of the label does not match. "Fake commodities" is "put" a legal term Ordinance and the "rules" are explained, including counterfeiting of the origin of a product, the factory name or code of three cases. "(and fraudulent use of unauthorized use of) others factory name, site of goods" is a from the "product quality law", "Anti Unfair Competition Law" derived from the combination of noun, its legal meaning and the Chinese word meaning the same. In this case, the parties that is obviously inconsistent with the facts, but also no legal basis for the business. As for selling counterfeit behavior; the seed (counterfeit goods) are accounted for draw a forced analogy, because code product in this case (origin, variety name, the author notes) and without hypocrisy, and such as are fake area the code, and without fake the complainant factory case, this case can be directly on the "seed law" be punished. Think about the two case qualitative perspective the County Bureau of industry and commerce, we are investigating illegal cases of fake and shoddy goods, the items involved in the case of "quality" and "external identity" two angles of the investigation. Factors associated with the product intrinsic quality including commodity name, type, grade, weight, content, composition, performance, use, period of validity, factor and commodity external identity correlation is mainly production factory name, the site, the specific name, packaging, decoration and trademark. The origin is marked factors between commodity internal quality and external identity, it can affect the internal quality can affect the external identity, this specific case analysis. In the case of the investigation, when law enforcement officers found from "conventional point of view." this internal quality and will enter into a dead end, he adjusted the case handling thought, to verify the identity of those articles from external sources, so that the smooth and, maintain the market order of fair competition. It appears from this case, nominal parties a agricultural distribution company for the distribution of "two. Nine" seed, annotation in the species name, origin, although it has legitimacy, but the label manufacturers factory name, the site of the identity of source is used is not dispute the fact. Because the complainant to the licensee does not supply any "two. Nine" produced by the 2004 annual seed, according to the Ministry of agriculture crops seeds labels Twelfth "management measures" article on "manufacturers is the first commercial seed suppliers......" Provisions, so that the parties for the distribution of fraudulent use of factory name, site commercial behavior clear facts, irrefutable evidence sufficient. This license legal relationship with the trademark, Licensee shall be marked with name and address, their reason is the same. In the case of accurate recognition properties for distribution or for three parties on the case law (unauthorized use of) others factory name, site behavior of commodities, in the law seems to be not only for "playing the" regulations, provisions are applicable "Anti Unfair Competition Law" or "product quality law". In fact. Because of this from the "new method is better than the old method", or "the method is superior to the law" and other legal rules applicable law "point of view," or "anti anti law" and "product quality law" and adaptation, and to press the "product quality law" to be punished is undoubtedly correct. At the same time, in the case of the mentioned "business.", "playing the" Regulations "and" law of seed has not optional and comfortable. Four with regard to the case of jurisdiction in the case of corruption, Party has put forward the "jurisdiction" this case belongs to the new plant variety right of name dispute not belonging to the business sector objection. But the County Bureau of industry and commerce, in the premise of the law has the complainant has "two. Nine" the exclusive right of name of new varieties of plants, such as no breed right person license in accordance with the law, the unauthorized use of the others special variety name for commercial purposes, are the "Seed Law" the forty-sixth regulation forbids aril and tort, the Department of industry and Commerce has the right to investigate and deal with according to the law. For this situation, and whether the infringer for morphological characteristics, using the variety name Seed Biological Characteristics and genetic traits and quality of representation, and breed right person to independent of how the consistent degree of seeds. Tonggu County Industrial and commercial bureau Chen Kunxi two 00 seven years

　　

　　

　　

Pingxiang City Administration of industry and Commerce

3, a company without approval to engage in direct sales activities

[case]

Pingxiang City Beauty Cosmetics Company Limited (hereinafter referred to as the blonde company) since 2001 and the Hangzhou pieces of Mary Kay Cosmetics Co., Ltd. (hereinafter called pieces of Mary Kay company) signed an agreement, underwriting the line of beauty products. In the process of operation, blonde company adopts development VIP VIP and beauty consultants, marketing products. The specific operation mode for:

The woman responsible persons of the company to direct contact, directly sell products to customers, and at the same time the development of VIP guests and beauty consultant. VIP VIP compared to ordinary consumers to buy the product, can enjoy 20 percent off, if in a total of three months to buy products amounted to 1800 yuan, the Mary Kay Inc website automatic meter for working, after passing the examination, can receive the offer engaged in sales. A year without consumer products VIP VIP in the computer is counted as Hugh position. The company a year to send 3 to 4 officers to Pingxiang for business training on VIP VIP, after passing the training provide certificate, a beauty consultant. Beauty consultant specializing in teaching and maintenance methods, female friend skin dress, make-up skills, and provides the free feeling. In consultation with object recognition after the purchase, a beauty consultant to Mary Kay Inc's Web site to order, and then by Shanghai chic Logistics Company Limited Pingxiang office special distribution, beauty consultant with delivery certificate delivery evacuation customer, and is responsible for the after sale service.

Woman's income is divided into two parts: one part is the person in charge directly purchase to 40 percent off from the company, the original price to the user; the other part is her performance and her beauty consultants to the development of the company in accordance with the performance summation, conversion ratio, second months return to its account.

Beauty consultant income is two parts: one is to the original purchase, at the end of the month, according to the direct rebate 20 percent off to their account; the other part is according to its performance, the company in accordance with a certain proportion of conversion, second months return to its account. Beauty consultant sales performance and wages are not in the company's financial records directly reflect the beauty, not included in the financial accounts of the company. To the time of the incident, blonde company is the development of VIP VIP 49 households, 14 households beauty consultant.

Mary Kay Inc have direct qualification in some provinces and municipalities directly under the central government, so the issuance of the salespeople in the direct selling area, because Jiangxi is not the direct selling area, all the beauty consultants are issued delivery certificate, beauty consultant with delivery certificate from the Mary Kay Inc issued to order products, and then sold to customers, only two of 00 April seven, turnover amounted to more than 40000 yuan.

I board of beauty cosmetics Limited company without approval to engage in direct sales activities, on the basis of "direct selling regulations" thirty-ninth article carried out in accordance with the law.

[dispute]

A kind of opinion thinks, blonde company has adopted a business model is the direct behavior. Although the company has business premises (Studio), but does not display products, and only try things, nor direct retail products, but only for a trial product or gathering place, to help them free trial, such as wash, do mask etc.. The studio is not the traditional store sales, but through the beauty consultants directly to consumers recommend products, consumers in order to determine the online ordering, sales, meet by salespeople in a fixed place of business, selling products directly to end consumers, no intermediate links distribution methods. Therefore, Beauty Cosmetics Company Limited has been achieved in the direct selling of qualifications, the authorization to beauty consultant way salespeople engaged in direct sales activities, its behavior should be based on the "direct management Ordinance" article thirty-ninth to make administrative punishment.

Another view, the punishment should be the main Mary Kay Inc instead of beauty cosmetics Limited company. Beauty cosmetics Limited company is actually a disguised form of Mary Kay Inc in Pingxiang branch, the specific operation by the Mary Kay Inc in the on-line operation, blonde company no account, no income, only income was Wang Xia himself, performance and income the beauty consultants are not into the blonde company accounts. Whether it is Wang Xia or beauty consultant and its essence is the hiring salespeople, part of its income is the factory direct discount rebate, another part is the total performance royalty, all line performance are included in the total number of on-line performance. The establishment of blonde company is essentially Direct Selling Company in did not obtain direct selling license area as a cover for them, a cover to evade supervision.

The third view, beauty cosmetics Limited company act should belong to is changing the way business is not selling behavior. Because the "direct management Ordinance" specification is direct marketing, direct selling enterprises should be the first production enterprises, and the party is just business, not of the "Regulations" regulating object, is not possible on the basis of "Regulations" article ninth made the direct selling license.

[comments]

In this case, there are two main issues, one is "direct selling regulations" adjustment range, if does not have the direct qualification of the unit or individual without approval to engage in direct sales activities. The two is how to determine the object of penalty, the case of direct selling behavior should be identified as the side to make.

One, "direct management Ordinance" adjustment range. A kind of opinion thinks, according to the "Regulations" article second "to engage in direct sales activities in the territory of the people's Republic of China, shall abide by the regulations" and third "as mentioned in this Regulation refers to the direct selling, direct selling companies to recruit salespeople, the salespeople in a fixed place of business directly to final consumers (hereinafter referred to as consumers) regulations sell the product distribution mode", only the direct selling enterprise marketing behavior, the adjustment range is "direct selling regulations". In this regard, we believe that a careful experience the "Regulations" in article ninth, from the literal understanding, should apply for approval, including the applicant for the direct approach for administrative organs of the time and conditions and approval must be registered three meanings. Two we should distinguish the applicant's qualifications and the applicant has obtained the direct qualification are two different concepts, the applicant's qualifications provisions did not make provisions, that any unit or individual may propose direct application, but only in line with the requirements of the enterprise can obtain the direct qualification, do not apply or application not approved to carry out direct sales activities, in violation of the "Regulations" provisions of article ninth, shall be punished according to law. If the identified non direct selling enterprises marketing behavior does not meet the provisions of "direct management Ordinance", it may lead to obtain direct qualification units, must be engaged in direct sales activities in accordance with the law, and has no direct qualification units, engaged in direct sales activities, but not bound by law, which is obviously not in conformity with the principles of law.

Whether two, blonde company can become the object of penalty. A kind of opinion thinks, should be pieces of Mary Kay company as the object of penalty. The so-called beauty consultants is composed of pieces of Mary Kay company issued delivery certificate, made order qualification, and place orders directly to its, income is paid directly by the. Pieces of Mary Kay company, is a development of cross regional distributors, to engage in direct sales activities, shall be punished in accordance with the law. We think, blonde company can also become the object of penalty. Blonde, and pieces of Mary Kay company are two independent, equal civil subjects, beauty consultant is a woman responsible persons of the company development, and conduct business beauty consultants, product trial, consulting provides places, in the marketing of products, the name is also used blonde company, all the beauty consultant performance are included in the the person responsible for the company's performance, the company responsible for the people who can benefit from. You can think so, blonde company is the use of favorable conditions for direct marketing system of pieces of Mary Kay company and its in Jiangxi is not the legitimate direct selling organizations, arbitrarily in local development personnel, engaged in non store sales activities, to seek illegal interests, in violation of the "direct selling regulations" provisions, and should be punished according to law.

Reflection.

By the end of the two 00 seven years in May 15th, 15 foreign enterprises have made the direct selling license, but the direct qualification in Jiangxi Province, only 2 home, like "Marykay", "perfect", "Lee Kum Kee" etc. These Direct Selling Company in did not obtain direct selling license of the area, is to rely on a few local dealer's license to hide, evade supervision. They sell products in the name of individual industrial and commercial households or limited, but the actual operation or direct sales model, the individual boss or bosses to recruit Mo a number of sales, sales direct to consumer sales, sales are paid by direct selling enterprises according to their sales to convert and distribute, individual local bosses and the boss is not responsible for the promotion of wage. The intention to evade the law, illegally engage in direct and in direct action, how to strengthen supervision, worthy of our careful consideration and discussion.

　　

By 4, together with the commercial bribery case in dispute

[case]

2007 in March, A City Industrial and Commercial Bureau found in law enforcement supervision, B, no insurance agent qualification from an insurance company in A city D business department to pay insurance agency commissions, the Bureau on suspicion of bribery to initiate an investigation. Find out now, B company is an Car Rental Companies, from 2006 to 2007 March, B company affiliated vehicles (i.e. vehicle license records owners driving for B, but the vehicle is not the company financed the purchase department of D) in the purchase of commercial motor vehicle insurance 635548.07 yuan, insurance 70200 yuan, accepting insurance agency commissions totaling 40037.07 yuan, no statutory financial accounts. Another check, B company has a concurrent business insurance agent license, but not with D Sales Department signed a concurrent business insurance agent power of attorney, nor to the business sector for the registration of change increases the scope of business.

[dispute]

How to determine the behavior of B company, there are two kinds of views:

A kind of viewpoint thinks, B company does not have the insurance agency business scope, should according to the scope of business of qualitative;

A kind of viewpoint thinks, B company does not have the insurance agency business, according to the relevant provisions of the "insurance law", cannot accept insurance agency commissions, which belongs to the illegitimate interests, meets the essence of commercial bribery, according to qualitative commercial bribe.

[comments]

1, the case law

①, the case shall be commercial bribery. D sales department as the sales of its goods (commercial motor vehicle insurance), no insurance agency legal operational qualification of B company to pay insurance agency commissions, constitutive requirements of commercial bribery:

First, the main elements with. D business department belongs to the insurance companies, meet the requirements of bribery subject -- the operator; B companies do not have insurance agency legal operational qualification according to the provisions of Article 132, "insurance law", the insurance agent should register with the Department of industry and commerce. In this case, B does not have the insurance agency business, not a legal insurance agent;

Second, the purpose of the elements with. D business department without insurance agency legal operational qualification of B company to pay insurance agency commissions, its purpose is beyond doubt, is to sell the insurance products;

Third, means the crime constitution. D business department to pay the insurance agency fee to B company in cash, in line with the characteristics of bribery to the property. "Insurance law" provisions of Article 134: insurance agency commissions, only be paid to the legally qualified insurance agents. D business department insurance agency commissions to should not give people, B company received not the money, essential characteristics with commercial bribery, improper interests;

Fourthly, from the view of the object of infringement, such acts lead to D business department gets better than other insurance companies competitive advantage, damage to the insurance market competition order, at the same time limits consumer choice.

The case is the general commercial bribery or kickbacks

The dispute was triggered at the vehicle ownership. Some people think that, vehicle permits recorded owner to B company, suggested that the vehicle for all of the company, the receiving agent fee is back its payment of insurance premiums, not recorded in the statutory financial accounts, their secret kickbacks. The author thinks, this case belongs to the general commercial bribery. This wants to be mentioned from motor vehicle ownership in china.

our "general principles of civil law" seventy-second stipulates: "property ownership shall not be in violation of the law. Property obtained in accordance with the contract or other legal means, transfer of property from the property at the time of delivery, the legal provisions or the parties have agreed otherwise." Therefore, the property ownership registration, or obtain the system, or a delivery achieved, agreement acquisition system.

The Ministry of public security in 2000 June in the "on the issue of ownership of motor vehicles to reply" (transit tube (2000) No. 98) and "on the transfer of vehicle ownership of property of the reply" (transit time tube [2000]110) are of the view that: "motor vehicle registration for the public security organs, is granted or not granted the registration of a motor vehicle on road motor vehicle registration of ownership, not." The two letter is the Ministry of public security are Reply of the Supreme People's Court Executive Office and lab, specify the registration of motor vehicles not ownership registration.

Effective from October 1, 2001 formulated by the Ministry of public security of the people's Republic of China "vehicle registration" also can be seen, the vehicle registration, transfer of registration, transfer to and were vehicle ownership for the motor vehicle ownership procedures, registration is the means and measures of motor vehicle management of motor vehicle management agencies, rather than the ownership of a motor vehicle the way of obtaining (specific provisions can refer to Article eighth, article ninth, article tenth, article fourteenth, article eighteenth). The approach is "vehicle registration" (effective May 1, 2004) repealed, but the new rules for the motor vehicle registration, change of registration, transfer of registration, mortgage registration and cancellation of registration regulations and had no essential difference.

2000 year in November the Supreme People's court "on the implementation of the cases of vehicle registration unit and the actual purchase inconsistent should be how to deal with the problem answer" ([2000] hold He Zi No. twenty-fifth) in that: "if we can prove the actual vehicle purchase and register the name of the case are not consistent, three motor vehicles should not determine for the registration of the name of the owner shall be based on human, and fairness, equivalence, compensation principle, determined to third people all." The answer to the "fair, equivalence, paid" principle to determine the vehicle owner, should not to register the name as the vehicle ownership, namely, the public security organs issued a "motor vehicle registration certificate", "motor vehicle driving permit" on the registered owner is not necessarily all motor vehicles, thereby negating the ownership of a motor vehicle to take registration system.

Reply of the Supreme People's Court on December 25th 2000 year study room "on how to identify the vehicle property contract for the sale of transfer of ownership problem" ([2000] Law No. 121st) pointed out: "about how to determine the vehicle property contract for the sale of transfer of ownership problem, need further study to make a decision, but the instructions involved in specific cases, should be identified from motor vehicle ownership transfer delivery." The reply clear vehicle ownership delivery system.

2004 year in May 1st to begin the implementation of the "people's Republic of China Road Traffic Safety Law" eighth stipulates: "the State practices a registration system for motor vehicle. Motor vehicle is registered with the traffic control department of the public security organ, on the road before. The vehicle has not been registered, need to temporarily run on road, it shall have a temporary pass." Article twelfth stipulates: "any of the following circumstances, shall handle the corresponding registration: (a) the transfer of ownership of motor vehicles; (two) the content of motor vehicle registration change; (three) the vehicle used as collateral; (four) the motor vehicle scrap." The connotation of motor vehicle registration system and registration system are clear, no motor vehicle registration is any of the provisions of the registration of ownership. From the relevant provisions of the literal, the law and the Ministry of public security to reply, "motor vehicle registration regulations" provisions is still the same.

To sum up, the current law has not stipulated the system of motor vehicle registration obtained ownership, so the law or the agreement made system delivery achieved. Between B company and affiliated person agreement also agreed "vehicle of all economic responsibilities include traffic accidents, vehicle damage, theft, economic disputes, B company is not responsible for any direct and indirect economic compensation", therefore, ownership affiliated vehicles shall be attributed to the actual investor instead of B company. Therefore, this case is not the rebate behavior occurred between the transaction parties, ordinary commercial bribery but bribery transaction third party.

Qualitative analysis to B company behavior

The author thinks, B company behavior should not be regarded as the scope of business, but a commercial bribery, it should be from the B company in the insurance business in the position to identify. In this case, B company is not only on the significance of the insurance agent, but a to call at this company vehicle purchase directly or decisions affecting insurance third party.

First, from the B company can be seen, not in transactions each other but third party status, but he is not a independent third party: "the vehicle license records owner is B company, for vehicle inspection, claims and other related matters are subject to the cover chapter, he can use vehicles linked the company this position directly or decisive influence on vehicle purchase insurance; from the survey, some owners to buy insurance to be agreed with the statement of B company, B company also recognized the affiliated vehicles to buy insurance through the company, Ordinary Company will request to the D department to buy insurance; therefore, B is the link between the vehicle owner and D business department is the insurance business can affect the third party;

Secondly, B company from the insurance agency commissions, can prove its engaged in insurance agency business -- this is just the appearance of behavior. From the survey situation, B didn't D business department to carry out affiliated agency business of the company outside the vehicle insurance, as mentioned above, B is the link between vehicles and D business department is the insurance business can affect the third party, but the insurance business between the company and the owners of motor vehicles D business department is not affect non affiliated, as a Car Rental Companies, it is not professional agents in engaging in the business of insurance agency, insurance agency, a business is not B company; it also no and D business department according to the "Interim Measures for the administration of concurrent business insurance agent shall sign the insurance" industry proxy, visible, even the "agent", also is not a valid proxy; it only B company vehicles linked to buy insurance agency fees can be extracted, therefore, insurance agency commissions not B company engaged in insurance agency business income, but the D business as the company affiliated to the vehicle is in a condition the purchase of insurance, is to ensure that B company affiliated vehicles and insurance paid to an interest to buy it;

Thirdly, B companies do not have insurance agency legitimate business qualification, can't accept insurance agency commissions, the D business department, to not give people to the insurance agency fee for insurance business, constitute commercial bribery, the company B, which received not receivable money, constitute commercial bribery;

Fourthly, from the angle of sanctions for violations, violations of the scope of business, with the constant change of legislative policy, its illegal nature and harmfulness of weakening in the law, and the dangers of commercial bribery is more prominent, to be in-depth governance; and if only identified B, the scope of business, is not identified D Business Department of the commercial bribery (commercial bribery has symbiosis, i.e. no commercial bribery has no commercial bribery, and vice versa, each condition), which can not be held responsible for D business bribery, fairness, justice so manifest the law.

Reflection.

The case finally, be punished only for B company's business sector commercial bribery, bribery and did not pursue the responsibility of D business department, under the jurisdiction of right to insurance company the main reason is that the China Insurance Regulatory Commission and the Department of industry and commerce. The author to talk about his own views.

"Insurance law" to give each other the commercial bribe form, defined in the "commitment" approach, "bribery, anti unfair competition law" refers to is accomplished "". "Commercial bribery" insurance law of 106th refers to "the insurance company or its staff commitment to give rebate, interest" (strictly speaking, this is not "reverse method" refers to the commercial bribery provisions and penalties), no bribery bribery party to make provisions for insurance agents, commercial bribery; insurance brokers have provisions, but no penalty. Therefore, the insurance company has actually occurred, give each other a bribe behavior, by the China Insurance Regulatory commission basis "insurance law" punishment is the lack of legal basis; for the commercial bribery insurance agent, insurance broker behavior, CIRC also have no basis for punishment. according to the author, the business sector to the commercial bribery: the insurance company has the behavior of commercial bribery; insurance agent, insurance broker behavior; bribery accepting bribes; as well as the insurance company accept the commercial bribe behavior, regulations can follow the "Anti Unfair Competition Law" when.

But in view of the present situation of this controversial, ultimately, A City Industrial and commercial bureau did not carry out punishment to the D business department. The author believes that, in the "anti law" amendment should consider this problem, otherwise, the commercial bribe behavior of insurance company, the business sector is not under the jurisdiction of the CIRC, nor on the basis of jurisdiction, violations are not held, is against the modern rule of law requires.

5, registration of false registered capital case

[case]

A was founded in December 1, 2005, the registered capital of 1000000 yuan, shareholders of Zhao, Qianmou two natural person, any company chairman zhao. In order to get the real estate certificate, A company to the business sector for the increase of 1000000 yuan change of the registered capital, the Zhao increased investment 800000 yuan, an increase of money invested 200000 yuan, the Department of industry and commerce business license issued in May 18, 2006. After investigation, Zhao, Qian Mou two people of husband and wife, because of insufficient funds, Zhao from friends borrowed 1000000 yuan in cash, and settled the registration completed after the return of 800000 yuan and friend, lend me 200000 yuan. In May 9, 2006, the name of Zhao will be 1000000 yuan to 800000 yuan, a 200000 yuan of money to the company account, bank respectively two issued 800000 yuan and 200000 yuan per single cash payment and proof of funds, a capital verification institution which issued capital verification report for the company. In May 10th, Zhao from the personal account, account transfer 800000 yuan to his friend. Zhao for money capital and the capital verification report soon after the 800000 yuan to the return of a thing, an unwitting money.

A bureau after discussion of the case as a A company false registered capital case, according to the "company law" article 199th of A company, shall be ordered to correct violations, and impose a fine of 40000 yuan.

[dispute]

There are three different opinions in the case handling process:

The first kind of opinion that the case should be defined as the company false registered capital. In the case of money a Zhao borrow endowment registered after the return of 800000 yuan lack of knowledge, but Zhao was the increased investment 200000 yuan a similarly unaware, borrow endowment registered by Zhao Mou hand. Because Zhao and money is a husband and wife relationship, corporate affairs is actually composed of Zhao to deal, Zhao wishes on behalf of the company will, as the company legal representative Zhao, its behavior is the representative of the company. In addition, false one of the major differences between the registered capital and shareholder false capital contribution is the object the infringement, false registered capital against the company registration system, and false capital contribution not only against the registration system, but also damage the other shareholder rights and interests in accordance with the law. In this case, the money is a capital increase by Zhao advance, "saying that harm other legitimate rights and interests of the shareholders" obviously wrong. So in the case of the company shall be false registered capital of 800000 yuan.

Second kinds of opinions that the case should be defined as false capital contribution of shareholders. Zhao in the borrowed money after registration, second days will be borrowing from the company accounts out of 800000 yuan to its friends, the money does not actually injected into the company, only in the company accounts transfer day, the paid in capital of a company is only increased by 200000 yuan, Zhao did not actually perform the full amount of capital contribution in currency in the company account of the obligations. Secondly, Zhao borrow at the beginning and friends agreed that repays the loan after registration, the subjective intention is very obvious false capital contribution. In addition, Zhao and money one is husband and wife, but because the borrowed capital registered by Zhao Mou hand, no evidence to prove that the money was a knew or should have known, assigned to 200000 yuan of money a name also into the company account, two people do not exist conspiracy intentionally, so the case should be characterized as shareholders a false capital contribution, but not for false registered capital.

The third view, the case should be in the nature of the withdrawing shareholder. Change of registration and registration of the flow of shareholders is a difference. In business, shareholders will be temporary account funds transferred to the establishment of the company, formally established after the company, then the money from the temporary account into the company account, and in the alteration, the shareholders will share directly into the company account, issued by banks single cash payment to the capital verification report. In this case the Zhao violations occurred in the process of change of capital, Zhao has been 800000 yuan will be transferred to the company account, to fulfill the obligation of capital contribution, the 800000 yuan has become the company's assets, then Zhao will be 800000 yuan from the basic account transfer returned to the friend's behavior should be out of capital as pumping.

(comment)

"two imaginary escape" cases in recent years and more, but at present the three qualitative case has no unified. The current boundaries clear are the following: 1, false registered capital must be all shareholders, the damage is the company registration order, false capital contribution is not true and part owner of the obligation of contribution, not only the interests of the company registration order, but also damages the other shareholders. 2, shareholder withdrawing capital should happen in the company after the establishment. 3, shareholder money, borrow money from company registered shareholders shall not violate the provisions of the law.

In the case end should be defined as false registered capital, shareholders or false capital contribution, or the withdrawing shareholder, the focus of controversy has two: one is Zhao with Qianmou with conspiracy intentionally, Zhao's behavior is representative of the company or the shareholders. Two has been transferred to the basic accounts shares whether has become the company's assets, the flight has been transferred to the basic accounts of funds identified as capital flight to.

"Company law" the 201st stipulation: the promoters of the company, shareholders in the company after the establishment, withdraw their capital contribution, and the company registration authority shall order it to make corrections...... Rule seventh: date; date of establishment of the company business license is issued. This two for completion of registration after the withdrawal of capital made clear: withdrawing capital can occur only after the registration is established in the company. For the registration of alteration after the withdrawal of capital, the law is not specified, but according to the regulations, business sector does not issue business licenses, registration act as did not complete the change of the company, have no legal effect, although Zhao has been the capital into the company account, but because the change registration procedures are not fulfilled, the funds should be regarded as Zhao personal assets instead of company assets, Zhao subsequent behavior as the withdrawing shareholder inappropriate. The withdrawing shareholder can only occur in the registration (including business registration and registration) completed, but not to whether money has been transferred to the basic accounts as the definition of shareholder false capital contribution or withdrawal of capital basis.

The main difference between the registered capital and the company false false capital contribution of shareholders have three: one is illegal in different subjects, the subject of the former is illegal, illegal subject which is shareholder; two is the object of the illegal acts against the different, the former is against the company registration system, and false capital contribution is not only against the registration system, but also damage the other has to shareholder rights and interests; three is both illegal subjective condition is different, false registered capital is the embodiment of the firms, and false capital contribution of shareholders is only part of the will of the individual, the common will of all the shareholders do not need. In the case of money a know nothing at all to false behavior, but because of the special relationship between the two shareholders, money has to give up some of their rights as shareholders, implied in fact, recognized all operations Zhao to the company, also can be understood as a kind of civil legal relationship in the act of Commission, entrusted Zhao exercise its the rights of shareholders. It can be identified, Qianmou omission is another form of collusion, Zhao acts of false registered capital should be recognized as Zhao and money in a common behavior, is the embodiment of the company's will, which harmed the company registration system and the relative person's legitimate rights and interests, should be defined as the company misrepresented registered capital.

Reflection.

As in the case of two shareholders, the relationship between husband and wife, this case has its particularity, but also has the universal significance in a certain range. The husband judicial shareholders must consist of 2 or more persons restrictions, in real life, there are many couples or father (mother) sub gear company, the company management is not standardized, the company actually by a shareholder management affairs, other shareholders exist in name only, as in this case, Zhao wish is the option of the company, company will be Zhao wishes. At present, the relevant law does not expressly, distinguish certain behavior is the difficulty of the act of individuals or companies, we in the concrete implementation in the process of administrative punishment to the facts, accurate qualitative aspects are also worth exploring, consider.

The Jiujiang Bureau of industry and Commerce

6, Jiangxi is four health care products Co. Ltd. forged "Jianbiyi" brand Cordyceps

Amino acid oral liquid production date, safe use period consumer fraud case

　　

One, the case

2007 year in March 23rd, Yongxiu County Bureau of industry and Commerce Bureau of Shanghai city and even bargain with Industrial Development Co. Ltd., Jiangxi four: report reflects the positive health products Co., Ltd. the hygiene license by health departments to recover the circumstances, still engaged in health care products production and operation activities, very seriously, immediately start investigation.

Verified: in March 31, 2003, the parties and the golden gate of Shanghai Marketing Company Limited signed the "Jianbiyi" Cordyceps amino acid oral liquid by the parties entrusted processing, production and processing "Jianbiyi" Cordyceps amino acid oral liquid, Shanghai golden company responsible for sales. Raw materials, bottle and cap, product packaging (packing box, packaging box) and trademark is provided by the Shanghai firm. In 2006 October, the production and processing of the "Jianbiyi" brand Cordyceps amino acid oral liquid (specifications: 250ml/ bottle) of 200 boxes, each box of 24 bottles, each box processing costs 7.20 yuan, total 1440 yuan processing fees. And in the October 10th Shanghai Golden Gate transit company there are 120 cases of oral liquid was broken, Shanghai golden company in December 2nd returned. The parties in the received the 120 cases of oral liquid returned after the damaged, replacement. In the replacement of packaging labels at the same time, deliberately will be returned to the 120 cases of oral liquid label and packaging production time, production batch number, the effective period to 20070115, in 2007 01 on Sept. 18, 2008 December. And in January 20, 2007 re sent to Shanghai by the Shanghai Kinmen Kinmen sales company, ltd.. During the period, the health permit [permanent workers eat so (2005) 0659] by health departments to recover.

Two, disputes and comments

Health food belongs to limit the use of the goods. Limit the use of the goods, have the limitation period of some of its quality, over this period, commodity on the possible failure, deterioration, loss of function of commodity of the original, and even endanger people's lives and health and safety, "product quality law" article twenty-seventh (four): "the special regulations limit the use of the product, should be in a prominent position clearly indicate the production date and safe use period or expiry date". The oral liquid in 2006 October the production of counterfeit label for 20070115, 2007 01, 2008 18 August December, its purpose is to extend the health food sales time, in order to increase sales, which damages the interests of consumers, and destroyed the market economy order, shall be punished. Application of any law which has two different views:

One, limited use of goods should be marked with production date and shelf life, its purpose is to allow consumers to understand the inherent quality of the purchased goods, once more than shelf-life, the goods cannot normal consumption (use), if consumers eating, the consequences be unbearable to contemplate. Therefore, limit the use of the commodity label production date is the product of an inner quality mark, the forged "Jianbiyi" brand Cordyceps amino acid oral liquid production date, safe use period behavior, in violation of the "Anti Unfair Competition Law" Ninth Article "the operator may not use advertisement or other means, false publicity the quality of the goods, components, properties, uses, producer, expiration date, origin make misleading. "Jiangxi Anti Unfair Competition Regulations" article ninth (three) "false statements, product performance, specifications, application level, ingredients and the name and content, forge or regulations deliberately vague labeled with production date, safe use period or date of expiration, the origin of goods", on the basis of "anti - twenty-fourth the unfair competition law": "operators use advertising or other methods, making false or misleading propaganda for goods, supervision and inspection departments shall be ordered to stop the illegal act, eliminate the effect, can be punished according to the provisions of the plot from ten thousand yuan to two hundred thousand yuan fine".

Two, over the shelf life of the product, does not necessarily means that absolutely can not guarantee product quality. Such as detection of commodities without failure, deterioration, still has a certain use value, factors there is not endanger personal and property safety, can express the sale price, behavior characteristics of a party to the case of counterfeit production date, safe use period, therefore, the forging production date should be regarded as "product identification is not true", "product application quality law" provisions of article fifty-fourth shall be punished.

I agree with the first opinion, the forgery production date, safe time is only a means, is to rely on the label of the false propaganda does not tally with the fact, to consumer fraud, illegal profit, should apply directly to the "Anti Unfair Competition Law" Ninth, twenty-fourth "to misleading false propaganda" qualitative amount of penalty.

Three, thinking

(a) in the legislative activities of the current "Anti Unfair Competition Law" had been mutilated. "Anti Unfair Competition Law" as a basic law for market economy, it identifies the common rules of market behavior under the condition of market economy, is the common to regulate the industry of all kinds of commodities and service competition in the market shall comply with, other economic legislation should be the special rules of competition problem solving special trading field. But dismembered, "Anti Unfair Competition Law" phenomenon exists in the current legislative activities, as shown in the legislation in addition to determine special behavior in a certain field, the common standard in this field may involve "has determined that the Anti Unfair Competition Law" market behavior to make provisions, including the legal responsibility, law enforcement agencies, such as the "Bidding Law" may appear on the activities of bidding collusive tendering, violating commercial secrets and other acts of unfair competition and stated: "the false statement of the price law" shows, price fraud, unfair competition behavior of joint manipulation of price, and price related are to be provided, similar to the "insurance law", "Telecommunications Regulations" etc..

(two) the lack of enforcement measures, the administrative law enforcement means not hard. "Anti Unfair Competition Law" does not give the authorities in the investigation of unfair competition cases, seizure related to acts of unfair competition law articles lien, illegal molecular resist inspection transfer illegal items refused to produce relevant evidence often place, industrial and commercial authorities cannot achieve, unable to collect the preservation of illegal evidence, make some unfair competition cases can not be handled.

(three) to speed up the "Anti Unfair Competition Law" revision work, so that the operation of the existing strong. Improve the anti unfair competition law enforcement environment, formulate and improve relevant supporting regulations. Intensify law enforcement efforts, broaden the field of law enforcement, severely crack down on acts of unfair competition, purify the market competition environment.

　　

7, together with the unlicensed limit competition administrative litigation case caused the enlightenment

---- the administrative authorities for Industry and Commerce shall administrative litigation proposals

　　

One, the case

Jiangxi province Ruichang City, a total of 11 gas stations (including the 2, 2 group homes, limited liability company 2, 5 individual industrial and commercial households), can apply for a business license. In February 16, 2006, Wu, 7 gas stations were personally signed a "cooperative agreement", the main content: the purpose of cooperation, equality, mutual investment, joint stereo business, risk sharing, sharing profits and losses; co operation project, the scope is the main liquefied gas, run any other national laws allow lease, the city's 11 gas stations; investment way, 7 Parties from 150000 yuan per person; the distribution of profits and liabilities according to each one's contribution, the proportion of profit distribution, debts, debts during the first cooperation, cooperation during the repayment of funds, lack of private property to the shareholders in proportion, debt, debt before cooperation the assumed by the shareholders themselves; in addition, withdrawal, transfer, investment capital, shareholder rights provisions; the last is the 7 parties jointly commissioned by the "Ruichang City Gas Co., Ltd." and legal person Wu and the city's urban area 11 LPG station signed the lease contract. Over the same period, the "Ruichang City Gas Company Limited", the legal name Wu and the urban area 10 LPG station signed a lease contract, the other 6 parties and with individual name and "Ruichang City Gas Company Limited", a signed a lease contract. The lease contract is the main content of Party A agrees to lease to Party B the gas station franchise business, Party A shall return to Party A's property ownership forever all, Party B has only the right to operate, all debt, debt during the lease by Party B, debt, debt and Party B leasing the former independent. Lease 11 station after the 3 station is no longer operating, 8 stations by 7 Party unified management.

Through the investigation and collection of evidence, that the Ruichang City Administration of industry and commerce:

1, Wu, 7 people of cooperative behavior belonging to unlicensed operators act. Cooperative behavior of some 7 people is to set up the new economic entities to invest in each individual justice, accountant, cashier, the operating result directly from the Wu Youying seven people, according to the proportion of bear. At the same time, the cooperation agreement business in addition to engage in liquefied petroleum gas business, other business projects is also engaged in the law, the registration and 11 gas stations, the business scope is essentially different from. Joint operation behavior of party re established economic entities, shall be registered according to law.

2, Wu, 7 people of cooperative behavior is to restrict the fair competition improper behavior. Wu, 7 people of the 11 station lease management rights, is actually the management buyout monopoly business, they take the lease over 11 gas stations, closing 3 gas stations, operating in their single price to price departments approved, and the unified management, unified management the urban liquefied gas, unified purchase, unified sales price, LIMITED the fair competition, directly harm the interests of consumers, the behavior is "unfair behavior Jiangxi Anti Unfair Competition Act" twenty-ninth refers to.

The parties think:

1, cooperative behavior without the formation of new economic entities, the signing of a lease contract is signed with the liquefied gas station by the "Ruichang City Gas Co., Ltd." name, after the lease is also to the name of the company's business, they are 7 liquefied gas station owners are held by the industrial and commercial business license issued by the authority in accordance with law, liquefied gas station. Lease also have industrial and commercial business license, so there is no unlicensed business problems.

2, cooperation is the "Ruichang City Gas Co., Ltd." in the name of the business, the price of liquefied gas is never more than the price department under the highest sales price, not to the unreasonable prices hinder fair competition.

3, cooperation behavior caused no damage, do not belong to serious.

After the court hearing testimony that:

Wu, the 7 parties are registered private gas station owners, but they signed a "cooperative agreement" to the name of the individual, each co funded the operation of liquefied gas, a separate accounting accounts, unified deployment of capital contribution, the implementation of cooperative behavior management together, sharing risk, share profits and losses, and formed a new economic entities, shall obtain the approval of the business sector registered according to law, cooperation, the right to operate the way to lease out 11 gas stations, and of which 3 liquefied gas station business, at the same time in the cooperative process, unified management, unified purchase, unified distribution of profits, the violation of the "Regulations of Jiangxi province the Anti Unfair Competition Act" nineteenth paragraph 1, belongs to the agreed business conditions of fair competition improper behavior. Cooperative behavior of party also violated the two above the industrial and commercial administrative law protection of the object, are serious.

The judgment of the court to maintain the original administrative punishment decision.

Two, the case of disputes and comments

The internal disputes in the examination of large 1, in this case, I finally Bureau, Wu and other 7 Parties to joint personal business, not to handle license, unfair united in the competition. Two concurrent punishment. I personally think that, combined with the essence of 7 party personal is liquefied petroleum gas station, the 7 parties is liquefied gas station owners or actual operator, they operate 11 gas stations by leasing the means to achieve the purpose of the monopoly of liquefied gas station, thus limiting the fair competition, is the essence of business one problem - monopoly, if only is combined with 7 parties person, did not stand united, is unable to achieve the purpose of monopoly. Therefore, should not be a problem apart, identify the personal union, then regarded as illegal union station, which itself is a contradiction.

2, "Jiangxi Anti Unfair Competition Act" the first paragraph of article nineteenth paragraph "limit or the agreement is not a reasonable price or operating conditions". I bureau Party unified management, unified price, the unified urban liquefied gas market, restrict competition, the court believed that we have identified the parties have agreed that the unreasonable prices and operating conditions, in the judgment to maintain the "agreed not reasonable operating conditions hinder fair competition behavior, restriction of" negative "unreasonable prices hamper restriction fair competition".

3, in the court proceedings, the parties put forward "unreasonable price" insufficient evidence, that the highest sales price never more than price sector cooperation, our evidence is only have the transcript is unified management, unified price, then the price proof material, "urban liquefied gas price is the price adjustment application by the Ruichang City Gas Company Limited, not to other units for", did not obtain cooperation management during the market price in the end what, all the gas stations are in the same period is the uniform price, in the trial on this point is feeble.

4, on the closure of 3 stations is not operating. We obtain the transcripts, onsite inspection transcripts, 3 gas station is not operating the true, (one of industrial gas factory, in the lease contract explicitly banned from running), on why not operation without investigation and evidence collection. In the court the litigant is not consistent with the operating conditions, the industry department in charge of the closure of the rectification required for other reasons, we seemed to be taken by surprise. If not for the monopoly, the parties do not spend money to rent 3 can't be operated stations, but it not, the evidence is not sufficient.

5, the legislation is not clear, interoperability is not strong. "reverse method" to limit or impede fair competition behavior is not specified, only the "Regulations", the first paragraph of article nineteenth of the three provisions of the operation there is no specific, monopoly. In the case of the 7 Parties of the liquefied gas market monopoly, unified management, unified price, belongs to the unreasonable prices? The 7 Parties to the lease to liquefied gas station, can think is liquefied gas market pile up in excess of requirement, in order to save the operation cost, to shut down several stations, while self management behavior?

6, "Regulations" provisions "thirtieth supervision and inspection department in accordance with the regulations of administrative penalty, shall order the offender to stop the illegal acts, and confiscate the illegal income and illegal property; the illegal income can not be calculated, according to the calculation of" illegal sales of 1 times, in this case the parties to the accounting, cashier has come, unable to find, do not provide the account, only Wu record admitted during the cooperation business turnover of 3600000 yuan, cannot check, not found.

7, the court review committee has been proposed in the book ", shall be ordered to stop the illegal behavior" is arbitrarily set up administrative punishment decision of punishment. Future in the punishment decision paper should pay attention to, can not be "shall be ordered to stop illegal activities" and other administrative punishment by the.

Three, thinking

1, build a own responding team. The administrative litigation cases dealing with industrial and commercial system increasing, improve the successful rate, the city as the center, to each county (District) office business backbone as a supplement, the establishment of a professional covers legal, registration, foreign capital, the market, the consumer protection, supervision, inspection, trademark, advertising, Business Internal team, responding to the same all the major food safety. On the one hand to represent his administrative litigation cases, cross regional agency administrative litigation cases, to support the necessary basic Bureau administrative litigation cases; on the other hand, a variety of problems and daily work of analysis, put forward the solution.

2, strengthen the training and exchange. Training object besides the responding team members should also be aimed at industrial and commercial authorities at all levels of legal institutions and grassroots cadres and the legal staff; training content mainly in substantive law and procedural law. "Administrative punishment law", "administrative licensing law", "administrative procedure law", "Supreme People's Court on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues", "the Supreme People's Court on some issues of administrative litigation evidence rules" and other laws, regulations and judicial interpretations and carry out legal practice aspects of special training; training mode, take please experts and judges of the court were analyzed, lectures and case in court litigation, litigation support in. Occur within the system in administrative litigation can organize team in responding to, in order to exchange and support action.

3, the further introduction, enrich professional legal talent, actively encourage the cadres to participate in the national judicial examination, try to establish a system of public service and professional lawyers.

4, further strengthen the communication with the people's court, improve administrative litigation skills.

　　

Shangrao City Administration of industry and Commerce

8, case analysis

Case synopsis:

2007 year in June, my bureau law enforcement officers in the inspection market to understand, the two phase of the project has been completed the County Jing Xiao Qu (about 60 Villa) steel window (a total of about 2000-3000m2), conch brand plastic materials -- suspected counterfeit products. This is the sample sent to Yingde conch profiles Co. Ltd testing, the conclusion of "non company products", is a clear case of trademark infringement, my bureau for investigation.

Via checking, Jing Xiao Qu two phase of the project developers is the County East real estate development company million years, the contractor is the county construction company, Hongshun construction company, wilo group, the engineering plastic steel window is the 3 company to others decentralized processing; plastic processing households material sources, mostly to Nanchang market purchase, few people buy from local dealers.

The special case:

1, the project completed, the processor contract the engineering plastic many has gone, can not find.

2, because of the above reasons, with some processing households do not cooperate with the investigation, the case subject -- the most difficult to pinpoint the conch tech channel.

Two, in this case there are 3 different opinions:

1, the only tech vendors as the main body, be punished the parties, is consistent with the "trademark law" article fifty-second (two) member rule. Thus, as mentioned earlier, processing households purchase steel channel mostly Nanchang market, not only difficult to identify, if can find out, we have no jurisdiction.

2, plastic steel window processors can also be used as the case be punished subject. Because of these processors is package material contractor, even calculate the price by M2 with package material, from this level, they are also selling behavior, namely the material, processing window after sales, and "trademark law" article fifty-second (two) member of the match, and no contradiction. Therefore, not only to find out in the steel distributor case, can even find out punishment processors, source material, it is purchased is processors sold, its itself also constitute infringement.

3, the 3 companies to be punished subject. The reason is, plastic steel windows as part of the overall housing, appear this kind of thing, as a result of the company to contract to others, and to do not have strict supervision and inspection responsibilities caused by the contractor, the problem is in the construction of the project, the fault can not be pushed.

The author agree with the second opinion, according to "trademark law" article fifty-second (two) provision, which is consistent, also have to deal with the case of special circumstances.

Ji'an City Administration of industry and Commerce

Analysis of 1 cases of materials

9, company is good at company case

The branch, a branch at a photo booth (point) the case study on the basis of punishment

Ji'an City Administration of industry and Commerce

[case]

A good tasting diet limited without local authorities approved the registration of cases, at its domicile, establishes a branch haokoufu leisure Food city engaged in the catering business activities, and on its investigation. Investigation: haokoufu Food Co. ltd.. After all the shareholder resolutions in the city, a supermarket, the establishment of Food haokoufu Leisure City, did not apply for business license conditions, the Food haokoufu leisure city has been in business since December 15, 2006. Funds business during the foreign place is through the haokoufu leisure Food city settlement, illegal turnover 33000 yuan, in Food haokoufu leisure city law enforcement officers found no indication of any company documents and information. The acts of the parties in violation of the provisions of "unlicensed and banned procedures" in article second, constitute the "illegal" provisions in section fourth, according to the "measures" in Fourteenth the first paragraph to make administrative punishment.

　　

[dispute]

This case is limited to set up branch of the case, the different views of law enforcement departments in the qualitative case:

The first view is that: the behavior belongs to the fraudulent use of the name of the company, in accordance with "provisions on the administration of Company Registration Ordinance" article forty-sixth: refers to a company established outside the domicile of a company to engage in business activities of the organization. The parties without registered according to law as a branch of the limited liability company, which includes the name of the limited liability company in different engage in business activities, shall be punished in accordance with the "Regulations" provisions of qualitative management company registration eightieth.

The second view: the parties at branches belong to violate the provisions of the registration matters of behavior, should according to the "Regulations" management company registration provisions of article seventy-third: the company changes its registered items, not in accordance with the regulations for the change of registration, the company registration authority shall order the deadline for registration; if it fails to register, impose a fine of 10000 and 100000 yuan fine gauge shall be dealt with.

The third view: the act of the parties belong to unlicensed operators act, is a violation of the "unlicensed and banned procedures" article second: provides that any unit or individual shall not violate laws, regulations, provisions in unlicensed, constitute the "way" regulation fourth of the illegal act, should be dealt with according to the "Regulations" article fourteenth the.

[comments]

1, "Regulations" management company registration provisions of article eightieth: registered as a limited liability company or Limited by Share Ltd, and fraudulent use of a limited liability company or a Limited by Share Ltd name, or fails to register as a branch of a limited liability company or Limited by Share Ltd, and fraudulent use of a limited liability company or a branch of a Limited by Share Ltd's name, the company registration authority shall order rectification or banned, may impose a fine of 100000 yuan. Can be seen from the above provisions, for the punishment of illegal acts shall apply to limited liability company establishes a branch of the provisions, as long as have two conditions: first, the company fails to register as a branch of the limited liability company; nominal branch second the company or a limited liability company engaged in business activities. In this case, a good tasting food limited company without the local industrial and commercial authorities approved the registration, the illegal facts or haokoufu leisure Food city have been very clear. So, in this case Food city are using haokoufu leisure limited liability companies conduct business activities in the name of the company? "" provisions on Administration of enterprise name registration of article fourteenth, paragraph (two), branch companies set up not to bear civil liability independently, the enterprise name shall be preceded by the name of its subordinate enterprises. In this case, the name of a branch of the Hypotaxis company are not known as a good tasting food limited company name inscription, and law enforcement officers in the city leisure Food haokoufu premises are not found on any company documents and information. This leads to no good "Regulations" eightieth be qualitative punishment.

2, "company registration regulations" Ninth Article: the registered items of a company include: (a) name; (two) shelter; (three) the name of the legal representative; (four) the registered capital; (five) paid in capital; (six) the type of company; (seven) the scope of business; (eight) the operating period; (nine) Limited company or Limited by Share Ltd sponsor name, or the name, as well as subscribed and paid up capital, time of contribution, contribution. "Regulations" management company registration twenty-sixth provisions: registration shall apply to the original registration authority for change of registration change of company, can be seen from the above provisions, only change the company registration matters, not in accordance with the "Regulations" provisions for the registration of change, can according to the "Regulations" the provisions of article seventy-third qualitative treatment, the in the case of the parties at its domicile is to set up Food haokoufu Leisure City, the parties to the local industry and commerce departments is the registration of establishment, but not the change of registration. So not according to "Regulations" provisions of article seventy-third shall be given qualitative punishment.

3, unlicensed operators act, refers to the business license without the approval of the administrative department for Industry and Commerce shall approve the registration and obtain a business license or no legal, valid and engaged in business activities. "Unlicensed and banned procedures" provisions of article second: provides that any unit or individual shall not violate the laws, regulations, engage in unlicensed. "Company registration regulations", "individual proprietorship enterprise law", "partnership enterprise law" are clearly defined, the establishment of branches must apply for registration to the local industrial and commercial authorities, approval and obtain a business license. Company Limited, individual proprietorship, partnership enterprises such as unregistered unauthorized establishment of branches, is a violation of the law in the respective (legal or administrative regulations). Measures second "in violation of the provisions of laws and regulations" is refers to the enterprise shall not handle of the business license of the branch, enterprise establishes a branch for breach of the law of their own, also in violation of the "Regulations" in article second, if an illegal act constitutes a "law" in article fourth, we can apply the "measures" under article fourteenth of the punishment. "Fourteenth measures" provisions of the second paragraph of unlicensed operation: the punishment of acts, as otherwise provided in laws and regulations, the provisions of. As related to hazardous chemicals, the Internet, real estate, printing industry, is to turn the related laws, regulations.

Reflection.

unlicensed cases accounted for a considerable proportion, this is because the license to operate in various forms exist in a large amount, while the market economy needs a fair, open, fair and competitive environment, businesses operating without license not only damage the legal interests of operators, violations of the legitimate rights and interests of consumers, more important is it undermines public, fair competitive market. The administrative authorities for Industry and commerce as the administrative law enforcement and market supervision and management organs, violations investigated and dealt with according to management, but also a perfect market economy competition rules is one of its priorities. What is operating without a license? Unlicensed which forms? According to the "Regulations" unlicensed and banned procedures, without the approval of the administrative department for Industry and Commerce in accordance with the registration and obtain a business license, or no legitimate business license, effective and engaged in business activities, all belong to unlicensed operators act. The author thinks: the company good branch and individual industrial and commercial households a photo booth (point) should be identified as unlicensed. The reason is: 1, "company registration regulations", "individual proprietorship enterprise law", "partnership enterprise law" are clearly defined, the establishment of branches must apply for registration to the local industrial and commercial authorities, approval and obtain a business license. Company Limited, individual proprietorship, partnership enterprises such as unregistered unauthorized establishment of branches, is a violation of the laws and regulations, which belongs to the "measures" article fourth (a), article (two), (three) the illegal acts in the column, i.e. without according to management behavior. 2, concerning the individual industrial and commercial households a photo booth (point) to explain that, individual and industrial and commercial business license in the registration area, for operating without a license; a photo booth (point) in the registration area, for the unauthorized change of business premises. Administration has for the first case identified as unlicensed behavior. But a photo booth (point) in the registration area, was identified as arbitrarily change the place of business is not. Individual and industrial and commercial business license business place is only a, a photo booth (point) in the registration area, just that unauthorized change of business premises registration simple implementation, so that the place of business change to multi stand (points), this allows? If the parties operating in a passport, but in the registration area of the place did not do as he opens a shop business, in accordance with the provisions of the change of business address to another, what to do is a business point, if you can not, or from another place and change, so change? Therefore, it should be to the local industry and commerce departments to apply for registration of establishment rather than change of registration, otherwise it is unlicensed behavior.

　　

10, Luomou unlicensed construction project

[case]

2004 year in October 15th, the Luomou using anchored in the county construction company as project manager, won the bid to build a middle school teaching building project of the county, the name of the company, the total project cost 1381000 yuan. After winning the bid, the county built the company and Luomou reached a verbal agreement, will be subcontracted by Luo, Luo Mou independent operation, independent accounting, self financing, construction of the shortage of funds by the Luomou raised, Luomou according to 5% of the total engineering cost to the company pay management fees. County built only for Luomou provide relevant licenses and agents of various procedures and the management fee charged by the project 5%, has received 60000 yuan management fee. The county industry and Commerce Department found Luomou to call others the way the company engaged in unlicensed business activities constitute the "unlicensed and banned procedures" article fourth (a) of unlicensed acts listed in item, according to the "unlicensed and banned procedures" provisions of article fourteenth shall be ordered to stop the illegal business activities to make the decision on administrative punishment, the confiscation of the illegal income and impose a fine of 18000 yuan.

[dispute]

The case in the investigation process, the mechanism has two kinds of different views:

The first view: Luo Mou is a county to build the company appointed person in charge of the project, in accordance with the "Regulations" the administration of the qualifications of construction enterprises in the project manager on the project manager responsibility, the power, the operation mode of management inside the enterprise, there is no link between the. Is the national policy allows, not punishment.

The second view: Luomou raised, independent operation, independent accounting, self financing the construction of teaching building, nominally a county to build the company commissioned by the project manager, is actually take over "management fees", engaged in building construction in the name of a county to build the company as an independent market main body, management subject to engage in business activities, must obtain the relevant certificate and business license, or essential unlicensed behavior. Luo Mou behavior belongs to the "unlicensed and banned procedures" article fourth (a) an unlicensed behavior specified by regulations, should be "unlicensed and banned procedures" in article fourteenth shall be punished.

[comments]

1, "project manager of construction enterprise qualification management approach" seventh, eighth, twenty-seventh respectively, the project manager responsibilities, powers and in enterprises enjoy wages were made clear. From these provisions can be seen, as the project managers of construction enterprises, only on behalf of the company or the legal person exercising the right of management of construction project, is the enterprise management personnel for enterprises to give corresponding reward. The so-called internal contract without a license, has the right of management, rather than control of income, the income from the client, is to get the necessary compensation according to the contract, without the need for investment and tax fees, nor assume business risk responsibility. In this case, nominally both internal contract agreement, but is actually a Luomou raised, independent operation, independent accounting, self financing, and according to a certain proportion to the company to pay management fees, but did not enjoy as a business management staff wages and benefits. County construction company is only responsible for providing the relevant certificates and agents of various procedures, and charge a management fee, not in the implementation and management of project construction. Luomou actually to undertake a county to build all of the company's rights and obligations, to replace the company into the actual operator of the project, to form a new management main body, that is to say, Luomou behavior essentially is a completely independent of the county built the company outside business entities engaged in business activities.

"Construction law" article twenty-sixth, article thirty-eighth makes clear a regulation, prohibit any non qualified, no business license units, individuals through various ways and means to use the name of the qualification certificate or a high level of qualification units to undertake the project behavior. At the same time, the provisions of the State Council "unlicensed and banned procedures" and other relevant administrative regulations for registration, those who engage in for-profit activities operators, must obtain the principal qualification. In this case, Luomou without obtaining the license that is related, and without a business license, unlicensed acts constitute its business activities in essence, so the applicability of "unlicensed and banned procedures" to be dealt with is completely correct.

Reflection.

In the investigation process of this case, we feel, for a long time, in the construction industry, generally similar in this case called Project Manager within the contracting of construction management mode, a lot of people think, business qualification through the "contract", this model is perfectly legal. But in the current laws and regulations, the definition of "contract", the internal contract ", which contract need to qualify management main body, is not clearly defined, resulting in the illegal behavior not only common and subtle, commerce departments investigate and deal with difficult, the dispute also many. We suggest that, despite the legislation departments, industry and commerce departments and construction administrative departments, should strengthen study, discussion and qualitative of the relevant legal issues involved in this case. The law enforcement law in dealing with such violations, to intensify efforts to crack down on illegal business activities.

　　

　　11, a printing company printed advertising law case

　　　

(case)

a printing company limited in April 12, 2005 to undertake the Ji'an Chuangtian Investments International Ltd (having been handled separately) in Jizhou district after the South River area "a Delight view," real estate projects five folding advertising alone 1000, eight advertising alone 20000 piece of business, advertising printing costs 9600 yuan, five folding advertising printing leaflets containing "brand value: a day professional Wuguan create the best business platform" absolute terms and "how to measure the appreciation of space Ultra low investment shops, you will create a greater value-added space "contain appreciation expressions containing" content; printed eight advertising alone in absolute terms a day · Lijing city Ji'an first city "and" also exists in the area south of the house price rising space before, why not set day, King City have a look?" Appreciation of language content. Also in July 12, 2005 to undertake the Ji'an Denon Real Estate Development Company Limited (having been handled separately) in the Ji'an West Road, Jinggangshan bridge development "Denon garden" real estate advertising brochure 1500 this business, advertising brochure printing costs 11475 yuan. The advertising brochure contains "use more than 800 trees native camphor tree,......" Content, which does not match the number of propaganda native camphor tree and "Denon garden" real estate projects at the 380 tree of actual quantity. The agency believes, the parties in violation of the "advertisement law" article fourth, article seventh paragraph second of article (three) and the "real estate advertisement issued Provisional Regulations" provisions of article sixteenth of the constitution, printed advertising illegal behavior, according to "advertisement law" article thirty-seventh, article thirty-ninth and "real estate advertising provisions" the provisions of article twenty-first, administrative punishment was made to the party.

(dispute)

In this case, there are two kinds of views in respect of applicable law:

first view: the parties is a company engaged in publications, packaging and decoration printing and other printing printing business printing business, rather than the advertising operators, their actions violated the "printing industry management regulations" article twenty-third "in the packaging and decoration printing printing...... Printing may be misleading advertising to consumers......" Regulations, illegal printing advertisement behavior, should according to the "Regulations" article thirty-ninth "printing enterprise accepting entrustment to print registered trademark logo, advertisement, in violation of the relevant provisions of the state, a registered trademark, advertising and printing management, the administrative department for Industry and commerce to give warning, confiscation of print and the illegal income, illegal operation amount more than 10000 yuan, and the illegal operation amount is 5 times more than 10 times the fine; if the illegal operation amount is less than 10000 yuan, a fine of 10000 yuan to 50000 yuan fine." The provisions of punishment.

second views containing false contents and prohibition parties: printed advertisement language, legal does not fulfill the obligations to review, verify the contents of advertisements, printed a illegal advertisement, should bear the legal. The parties comply with the "advertisement law" mentioned in the "advertising", to "advertisement law" adjustments, should be based on the "advertisement law" article thirty-seventh, thirty-ninth provisions of the administrative punishment on their.

[comments]

1, "advertisement law" second paragraph Fourth "as mentioned in this Law refers to advertisers, advertising design, commissioned by providing legal services, manufacturing, other economic organizations or individuals." Specifically, the so-called production refers to the advertising design, production for broadcast, settings, posting, spread advertisement and other operating activities. In this case the parties directly affected by the two advertisers (Ji'an Chuangtian International Investment Co. Ltd. and Ji'an Denon Real Estate Development Co., Ltd.) commissioned, according to advertising design advertising samples, printed for distribution of advertising, the printing fee charged. The parties comply with the "advertisement law" mentioned in the "advertising", to "advertisement law" adjustment.

2, "advertisement law" stipulates that the twenty-seventh "advertisers, publishers in accordance with laws, administrative rules and regulations shall examine relevant documents, and verify the contents of advertisements. The content of untrue or incomplete documents advertising, advertising operators shall not provide design, production, service, advertisement publishers shall not publish." The State Administration for Industry and commerce "about" advertising law "the relevant issues in the execution of reply = (business wide word (1998) No. twenty-first) to" verify the contents of advertisements "in detail, is refers to the advertisement operator, the advertisement publishers shall examine relevant documents in accordance with laws, administrative regulations, to verify the contents of advertisements. The obligations, and bear corresponding responsibility, to ensure that the advertising content real, legitimate. The party entrusted printed advertising, should verify the contents of advertisements, ensure that the advertising content real, legitimate, this is the law of obligations, but the party failed to fulfill legal obligations, printed advertising law, it should bear the legal responsibility.

　　  3, "print advertising management approach" the provisions of article third "printed advertisement shall be true, legitimate, in accordance with the requirements of socialist spiritual civilization construction, shall not contain false contents, not to cheat and mislead consumers." Article eighteenth "printing enterprise print advertisements shall abide by the relevant regulations, may print print ads with illegal content." And "advertisement law" article fourth "ads may not contain false contents, not to cheat and mislead consumers." Regulations; to use "the best, the first" absolute terms in the advertisement belongs to "advertisement law" the second paragraph of article seventh (three) of the prohibition of "state level, the most advanced, the best words such as" behavior; contain appreciation and return on investment commitment in violation of the "Interim Provisions" real real estate advertising sixteenth "the real estate advertisements should not appear in the financing or financing, shall contain the appreciation or return on investment commitments", so the form printed advertising illegal behavior, should according to "advertisement law" article thirty-seventh, article thirty-ninth and the "real estate advertisement issued Provisional Regulations" the provisions of article twentieth punishment.

Reflection.

In this case the parties to erroneous application of the law to the city administration of industry and commerce to apply for administrative reconsideration, the city administration of industry and Commerce in the accepted the case, apply the law for the. Answer: printing enterprises directly under the Provincial Bureau of advertisers entrust printed advertising, advertising operators for printing enterprise, "advertisement law" adjustment; commissioned printing advertising printing enterprises by advertising, printing enterprise which belongs to the printing behavior, not subject to "advertisement law" adjustment. City Administration of industry and commerce to maintain the administrative punishment decision of the district administration of industry and commerce, but to apply to this case law, the author still endorse regulations applicable "" printing industry management. The reason is: the party is engaged in the publication, packaging and decoration printing and other printing business printing business, more suitable for the "Regulations" printing industry management adjustment. This point of view for reference.

Jingdezhen City Administration of industry and Commerce

12, the case: a power supply company with exclusive status of overcharging

　　

[introduction] case

2006 year in December to 2007 January, a power supply company in the local town "natural home" residential customers for electricity account procedures, negotiate with the developer: in order to make the area within the household electricity to households, power supply company agreed to take over the users within the cell, but according to 400 yuan / household standard charge residential users "account fee", and for residential developers one-time advance "account fee" of 80000 yuan. The small to the "account fee" user electricity, unpaid "account fee" is not electricity.

[dispute]

A kind of opinion thinks: a power supply company is only a local power supply enterprise, with a monopoly position, in residential electricity account user management procedures, collecting area of the user's account fee, is not reasonable, is illegal, because "account fee" that collect fees project countries have been cancelled. Power supply company with exclusive status overcharging "account fee" in violation of the State Administration for Industry and commerce "Several Provisions on" public enterprise to limit competition behavior prohibited article fourth (six) of the Convention, the Department of industry and Commerce of the people's Republic of China on the basis of "Anti Unfair Competition Law" article twenty-third, "on the prohibition of public enterprises limited competition regulations" in fifth the first paragraph processing.

According to another view: to the area of user charge account fee notes issued is residential developers, is the residential developers in the monopoly position by power supply company in overcharging, the violation of the State Administration for Industry and commerce "Several Provisions on" public enterprise to limit competition behavior prohibited article fourth (four) of the Convention, to residential developers can be based on "sixth" on the provisions of public enterprises to limit competition behavior against the provisions of the first paragraph of.

The power supply company argued, they stated to residential developers issued invoice fees is "account fee", belongs to the clerk clerical error, its essence is "bank material fee", less to write two words, charged 400 yuan / households is the cost of materials. Accordingly, there are third kinds of views that, power supply company provides material in electric connection process, can be charged, he and small households dispute belongs to the civil disputes, to the power company's business sector should not be carried out administrative punishment.

[comments]

1, the local county as the only one power supply enterprise, belongs to public enterprises, the monopoly position in the electric power industry is very obvious in;

2, "the people's Republic of China Electricity Law" twenty-sixth article: applications for new electricity, temporary electricity, electricity capacity increase, alteration and termination of electricity utilization, it shall go through the formalities in accordance with the provisions of the program. Power supply enterprises shall, at their business places, notice electricity procedures, rules and the charge standard. "Electricity supply and use regulations" twenty-third article: applications for new electricity, temporary electricity, electricity capacity increase, alteration and termination of electricity use, shall be to the local power supply enterprises to complete the formalities, and delivery fees in accordance with the relevant provisions of the state; reasonable grounds for power supply enterprises shall not refuse power supply, power supply. Power supply enterprises shall, at their business places, notice electricity procedures, rules and the charge standard. Because our province has not yet issued standards of engineering of power supply facilities, the parties to charge cell users 400 yuan per household bank charges unfounded.

3, the state in order to control the unreasonable commercial housing prices rise, reducing the real estate development enterprises and real persons burden, promote sustainable and stable development of housing construction, respectively, in 1996 and 2001, by the State Planning Commission, Ministry of Finance issued a document, cancel the part relates to the residential construction of some unreasonable fees (see valuation fees [1996]2922 document and the total price [2001]585 of text), which relates to the electricity sector 8. "Electricity into people's homes, account fee" as early as in the notice of the State Development Planning Commission, Ministry of finance "on the lifting of the construction project fees to further strengthen the management of construction projects" (valuation fees No. [1996]2922) has been canceled. "Account fee" the fees have been competent price department of the state expressly canceled, charge of electricity sector cannot use this fees.

4, in accordance with the "Jiangxi power grid city residents" a form of "engineering fees notice" (Jiangxi meter commercial value word [2003]242 date) in the "new commodity housing in accordance with the provisions of the standard [1999]76, the establishment of a table, the table before the cost into housing construction costs, shall not be to household to collect", the parties can not to small households receive electricity "account fee".

5, the power supply company argued, they stated invoice fees "account fee", belongs to the clerk clerical error, its essence is "bank material fee", this argument is untenable. Residential developers in addition to the power company to pay 80000 yuan "account fee", but also to the power supply company Associate Company a power installation company paid 120000 yuan "line installation fee", the two sides signed the contract, that this 120000 yuan is the transformation of district electric power engineering;

6, in fact caused such a result: the small to the "account fee" user electricity, unpaid "account fee" is not electricity.

Therefore, the agency ultimately adopted the first view. The power supply company received business department of the punishment, and correct the behavior.

Reflection.

Power supply company and residential developers in the treatment with inappropriate are in the process of electric bank. Residential developers in the early development of commodity house should be in accordance with the relevant provisions of the state, take the initiative to contact with local power supply department, system power supply scheme, making power budget, the housing sales, the reasonable expenses included in the cost of commercial housing development, and not because of their own fault, will most probably it did not actually happen behind the increase in supply costs apportioned to the consumer the first house. This practice violates the national code for design of "residential" (GB50096-1999) regulations, violation of our province "notice on the Jiangxi network city residents" a form of "engineered" charging problem (Jiangxi meter commercial value word [2003]242 date) regulations. Power supply company since consent of the small developers "a form of" reading to the user application, in our province has not yet issued fee standards project power supply under the condition of electric power industry, should be in accordance with the "who invests, benefits", "who development, who invest" principle, and residential developers to negotiate over the power supply engineering cost, and should not be entrusted to developers to charge cell users, should not use more countries have been the abolition of fees "account fee" for the cost of not receivable;

At present, although the "account fee" has been the state expressly abolished, but the public enterprise to use its monopoly position is still in charge this cost, is only the form is different. In this case we can see that, "account fee" is the essence of public enterprises, using its monopoly position, forced to charge the customers income, is a "unearned income". In the water supply, gas supply and other industries also has this kind of behavior.

Fuzhou City Administration of industry and Commerce

13, before the punishment shall inform the parties "to make the punishment on the basis of" scope

-- from a Xinhua Bookstore refuses to accept punishment for reconsideration and lawsuit

[case]

2006 July 4th, A County of Fuzhou City Industrial and commercial bureau (hereinafter referred to as the County Bureau of industry and Commerce) makes the decision on administrative penalty, finds the A Xinhua Bookstore (hereinafter referred to as Xinhua Bookstore) exist in the following facts: the Xinhua Bookstore in the spring 2006 semester, according to the Education Commission of Jiangxi Province Education Department and the Jiangxi provincial Xinhua Bookstore "on doing a good job in autumn 1993 teaching in primary and middle schools book subscription work notice", in the primary and middle school teaching auxiliary sales publications process, take according to the supplementary book sales amount of 1% and 5% ratio method, related payments to City and County Bureau of education to sell books. Time of the incident, involving 500000 yuan, Xinhua Bookstore to profit from 30000 yuan. In January 2006, Xinhua bookstore by bank transfer, the profit by the "publicity" pay the county education bureau.

Think the County Bureau of industry and Commerce: Xinhua Bookstore to pay the County Education Bureau 30000 yuan rebate marketing teaching books and behavior, in violation of the "Anti Unfair Competition Law" in eighth the first paragraph, constitute an unfair competition sell auxiliary materials by using the means of commercial bribery, according to "Anti Unfair Competition Law" as provided in article twenty-second, for administrative penalty of a fine of 30000 yuan of Xinhua bookstore.

2006 year in July 14th, the Xinhua Bookstore to have any objection to the punishment on the grounds, to the city industrial and commercial bureau to apply for administrative reconsideration. The County Bureau of industry and Commerce in the reconsideration submitted the following evidence to prove the facts of the case: the Xinhua Bookstore commissioned deputy manager Huang investigation record, administrative fees instruments in 1 copies, the industrial and Commercial Bank of China statement 1 copies, Xinhua Bookstore Book single copy 1, Xinhua Bookstore to provide copies of the documents 2, the Xinhua Bookstore to submit "that" 2, Xinhua Bookstore, a photocopy of the business license. In September 4, 2006, the city administration of industry and commerce to make a reconsideration decision, maintain the County Bureau of industry and commerce.

2006 year in September 25th, the Xinhua Bookstore in the money involved payment is expressed accurately recorded, is a legitimate discounts and concessions and non commercial bribery for, bring an administrative lawsuit to the court. In December 5, 2006, the county court judgment maintains the County Bureau of industry and commerce.

2006 year in December 7th, the Xinhua Bookstore in the County Bureau of industry and Commerce made the punishment without informing had made all the legal basis for administrative penalties, a serious violation of the statutory procedures, as well as the payment does not meet the commercial bribe characteristic on the grounds, to appeal to the intermediate people's court. In January 30, 2007, the second instance trial after the end of the debate, according to Xinhua bookstore has offered to pay a fine of 30000 yuan penalty decision to withdraw the appeal. The court ruled to approve its withdrawal of appeal.

[in the case of specific circumstances

A, reconsideration case:

In the review, evidence review personnel according to the County Bureau of industry and Commerce submitted, said Xinhua Bookstore behavior has constituted a typical commercial bribery. However, the County Bureau of industry and Commerce in the determination of the specific facts and circumstances are still inadequate and even mistakes, in the procedure of administrative penalty also exist irregularities:

A county bureau of industry and Commerce has evidence to prove that the Xinhua Bookstore Jiaofu books in the sales process, according to the Bureau of education 5% payment county sales amount of money, but there is no evidence that the County Bureau of education is how to facilitate transactions. Namely, the County Bureau of industry and commerce did not obtain direct evidence, the relationship between the County Bureau of education and the teaching assistant book sales, existing legal interest or influence. This kind of relations, in this case requires the Joint Education Committee of Jiangxi Province Education Department submitted by Xinhua Bookstore and the Xinhua Bookstore in Jiangxi Province in 1993 issued a document, as well as the presumption that may be according to the education bureau.

Two the County Bureau of industry and Commerce in did not identify the County Bureau of education is the teaching book buyer's case (file did not even find out who the students buy supplementary books to Xinhua Bookstore), as the Xinhua Bookstore "publicity" is the payment of kickbacks, is obviously improper or even wrong. Because, according to convention bureau of education does not directly instead of schools for students to purchase textbooks, when accepting improper payments shall not the buyer or buyer's staff, there is no "kickbacks" problem, which can only exist in commercial bribery typical.

Three the County Bureau of industry and Commerce by Xinhua Bookstore and the manager himself "a fee system, to the administrative departments of education and promotion expenses, profit is zero", and "2006 pay County Board of education allowance costs 30000 yuan, turnover 500000 yuan", as the Xinhua Bookstore "the amount of 500000 yuan, engaged in profit 30000 yuan", the evidence is insufficient, or even wrong. Because there is no necessary relationship between the payment of money and Education Department of Xinhua Bookstore profit, zero profit shall be financial records, this is one; second, the Xinhua Bookstore is based on the sales amount of 5% to the County Bureau of education payment "publicity", the 2006 to the County Bureau of education paid 30000 yuan, sales the amount of the corresponding 600000 yuan instead of 500000 yuan; third, the Xinhua Bookstore, but also by the amount of sales of 1% to the city Bureau of education related payments, according to that logic only profit 30000 yuan and paid 30000 yuan to the County Education Bureau said, Xinhua bookstore will also be a loss of 6000 yuan to the city Bureau of education? -- so, the County Bureau of industry and commerce that the profit and sales, is stultify oneself.

Four according to the "Regulations" in Jiangxi province administrative penalty hearing procedure, the illegal activities by more than 20000 yuan fine, shall notify the parties concerned of hearing right. Although the local rules and regulations of the "law, regulations, rules and regulations on penalty quota and hearing provisions, from its provisions", and the State Administration for Industry and commerce "the administrative organs of industry and commerce administrative punishment hearing" provisions of the "Provisional Rules on legal persons or other organizations to impose a fine of 50000 yuan" shall inform the parties concerned of the hearing right, however, the State Administration for Industry and commerce "the administrative organs of industry and commerce administrative punishment hearing the provisional rules" also stipulates "the provinces, autonomous regions, municipalities directly under the central government, the NPC Standing Committee or the people's Government of mentioned in the preceding paragraph, the amount of the fine has specific provisions, from its provisions". From the point of view of protecting the legitimate rights and interests of the parties of administrative punishment, should be in accordance with the "low amount" principle to inform the parties enjoy hearing right. In this case, the amount of the fine is 30000 yuan, but the County Bureau of industry and commerce did not inform the Xinhua bookstore has the right to request a hearing.

Five, "administrative punishment law" thirty-second paragraph second of "the administrative organs shall not by the parties themselves and aggravated punishment" principle, its important content is the guarantee of the administrative punishment statements of the parties the right to defend themselves. If the administrative organ in the administrative penalty notice procedures, the statement of defense, not by the parties themselves and aggravated punishment. In this case, the County Bureau of industry and commerce first told Xinhua Bookstore for the punishment is: 1, be ordered to stop the illegal act; 2, confiscate the illegal income 30000 yuan, a fine of 10000 yuan; 3. Xinhua Bookstore after receiving the notice submitted "explanation", pleaded "profit is zero". The County Bureau of industry and Commerce has adopted the Xinhua Bookstore "profit to the administrative departments of education", the abolition of the "confiscate the illegal income 30000 yuan" punishment; on the other hand, in the absence of any other law aggravating plot in the situation, and the amount of the fine by the first told "10000 yuan" increase as the "30000 yuan", in violation of the "not by the parties themselves and aggravated punishment" principle.

While the decision to the County Bureau of industry and commerce. The deficiencies and mistakes, but in view of major illegal facts Xinhua bookstore has existed, and that the city and the province's industrial and commercial system and Xinhua Bookstore commercial bribery cases is at a critical stage (at that time, the city's total of 6 counties in Xinhua Bookstore is industrial and commercial bureau investigation, but declined because of commercial bribery do not implement the punishment decision, and under the unified arrangements of the provincial Xinhua Bookstore, 3 to apply for administrative reconsideration, administrative litigation, 1) if the decision to withdraw the County Bureau of industry and Commerce of the penalty, may give the governance of commercial bribery in Xinhua book store passive situation caused comprehensive. From the overall interests, decided the reconsideration organ for the County Bureau of industry and commerce to make the penalty.

Two, administrative litigation cases:

When the first trial, Xinhua Bookstore: the law does not prohibit the school or educational bureau generation of students to subscribe to the unity of teaching books, subscribe to the unity of will also ensure that students buy genuine books, the Provincial Education Committee General Office and the provincial Xinhua Bookstore 1993 document explicitly by the school uniform to subscribe to the teaching books; the Xinhua Bookstore, according to the Provincial Education Commission General Office and the provincial Xinhua the bookstore document of 1993, with 6% from educational books sales to the education administrative department for education funds, is to support the development of education, as long as for education conforms to the interests of students. The Xinhua Bookstore related payments, is expressly truthfully in the accounts to reflect, is Mingzhemingkou, legitimate profits, not to bribe crime. And even if the Xinhua Bookstore in accounting has the deficiency, the competent departments of finance accounting shall be under the jurisdiction of the Department of industry and commerce, and does not belong to the jurisdiction. In the County Bureau of industry and Commerce has never been to the Education Bureau to verify any problems, not to find out whether the Education Bureau relevant money for teaching books and periodicals propaganda and training or education, no more any evidence directly prove what is the relation between the County Bureau of education and the teaching assistant book sales activities.

In order to clarify the facts, reasons and basis for the original Xinhua Bookstore constitute commercial bribery, according to Xinhua Bookstore's point of view, the County Bureau of industry and Commerce in the first instance trial from the following aspects: 1. Refer to the State Administration for Industry and commerce "on the prohibition of commercial bribery", "Interim Provisions on travel or tour guide personnel to accept the mall to pay" capitation fee "," parking fees "and other expenses and qualitative answer to the question" (industrial and commercial public word [1999] No. 170th), "a joint venture in the counter in charge each other commercial sponsorship campaign advertising behavior according to commercial bribery qualitative answer to the question" (industrial and commercial public word [2001] No. 152nd), discusses the connotation of "in essence commercial bribery" and the elements, "discount", "stated truthfully enter them in its accounts" and "kickbacks" accurate meaning and elements, stressed: the discount is returned to the seller shall give the buyer the price discount or price, rather than the seller to the buyer "publicity" and other names of money, more than the seller to other the third party payment. The reference to "accounting standards" enterprise, "sales discount, sales allowances" accounting rules. It quoted an education ministry, the General Administration of press and publication "ordinary primary and secondary school textbook publishing management regulations" and "primary and middle school teaching material management measures", explains: reference books to implement market-oriented operation, the student and the school can choose whether or not to purchase and to whom to buy; the state banned the Xinhua bookstore with the textbook with subscription teaching book directory outside of the book; the education administrative departments at all levels and other relevant departments shall not in any form of forced school order, primary and secondary schools shall organize students to buy, issuing department not to school with textbooks subscriptions or tying all forms of teaching materials. The application of the rules of evidence in administrative litigation on fact can be directly identified as everyone knows, the County Bureau of education is not involved in the case teaching and the buyer, but can exert influence on teaching books and periodicals subscription of third people, education bureau also has no right to engage in commercial publicity, marketing etc.. According to the Xinhua bookstore manager Huang "is" about 1993 years in primary and secondary schools teaching book autumn subscription notice "of teaching books and periodicals subscription" testimony, and the "notice" content, infer County Bureau of education according to the document organization school order textbooks in Xiang Xin China Bookstore with order supplementary books effect of County Education Bureau, a certain proportion of the organization and the Xinhua bookstore by reference books for book purchase payment, causal relationship.

Second, the Xinhua bookstore will shift the focus of punishment procedures, put forward: the County Bureau of industry and Commerce in the first instance cited many legal basis at the beginning to make legal punishment, if there is no legal basis for the punishment of those can not be established, but the County Bureau of industry and Commerce made before the punishment did not put these legal basis told Xinhua Bookstore, serious violation of the "statutory inform the procedures specified in article thirty-first of the administrative punishment law", in the written decision on the administrative penalty is not in accordance with the "administrative punishment law" thirty-ninth article about the legal basis, which belongs to the "administrative punishment law" third article stated without statutory basis, does not comply with the statutory procedures ineffective punishment.

[comments]

One, before the punishment shall inform the parties "to make the punishment on the basis of" the limits of how much? Whether penalties in fact, explain all the legal basis of laws, it shall notify the parties in advance?

"Administrative punishment law" third paragraph second, "no legal basis or not in compliance with legal procedures, administrative punishment is invalid". "Administrative punishment law" thirty-first stipulates: "the administrative organ before making a decision on administrative penalty, shall inform the parties make the facts, reasons and basis for the administrative punishment decision, and notify the parties shall enjoy rights". It should be said, "administrative punishment law" third paragraph second called "legal basis", and the thirty-first called the "basis", is refers to the citizen, legal person or other organization that violations of the order of administration, administrative punishment in the legal jurisdiction and laws, regulations and rules relevant permissions granted administrative organs in administrative punishment.

"Administrative punishment law" thirty-first article called "the administrative punishment decisions, and the fact that" article thirty-ninth (two) determines the required book administrative punishment shall be specified in "violation of laws, regulations or rules and facts", is refers to the citizen, legal person or other organization, in accordance with the relevant laws, regulations and rules shall be subject to administrative punishment, and by the laws, regulations or rules and authorized by the administrative organs and the behavior.

To prohibit the regulation of commercial bribery, and grant the administrative department for Industry and commerce administration punishment power, is eighth and twenty-second "Anti Unfair Competition Law". The two law the parties shall be notified in the penalty and punishment decision book.

The County Bureau of industry and Commerce in the administrative lawsuit cited "on the prohibition of commercial bribery", "Interim Provisions on travel or tour guide personnel to accept the mall to pay" reward "," parking fees "and other expenses and qualitative answer to the question," "on the counter associated in charge each other commercial sponsorship campaign advertising behavior according to commercial bribery qualitative answer to the question", is used to the court that the State Administration for Industry and commerce to the "commercial bribery" is how to define the. These 3 pieces of normative documents, is the State Administration for Industry and commerce to explain how the specific application of "Anti Unfair Competition Law" to the industrial and commercial administrative enforcement, it does not directly to the commercial bribe behavior set administrative punishments, does not belong to the "administrative punishment law" provisions of article thirty-first and article thirty-ninth shall inform the parties of administrative punishment "on the basis of".

According to the rules of evidence for administrative proceedings in China, as everyone knows, the fact presumption of facts and in accordance with the provisions of law, the court can be directly identified. Accordingly, the administrative department for Industry and Commerce may also be in the administrative law enforcement directly and that judgment. The County Bureau of industry and Commerce cited the "management regulations" school teaching and published "elementary school teaching material management measures" and "accounting standards for business enterprises" in administrative litigation is the objective existence, to explain the facts related to the court. These 3 normative documents in the administrative department for Industry and commerce, and commercial bribery cases, also do not belong to the "administrative punishment law" provisions of article thirty-first and article thirty-ninth of the administrative punishment shall inform the parties "basis".

The County Bureau of industry and Commerce in making the decision on the administrative penalty, and the penalty decision, are explicitly told Xinhua Bookstore, the violation of the "Anti Unfair Competition Law" article eighth constitute commercial bribery facts, and according to the legal basis to implement the administrative punishment, namely the "Anti Unfair Competition Law" eighth and twenty-second are told the Xinhua Bookstore, there is no violation of the "administrative punishment law" thirty-first or thirty-ninth questions, in full compliance with the statutory procedures. The County Bureau of industry and commerce is the commercial bribery to the Xinhua Bookstore to implement administrative punishments, not on the financial accounting illegal behavior of Xinhua Bookstore in the implementation of commercial bribery and the implementation of administrative punishment, nor the existence of "administrative punishment law" third article called "no legal basis for the implementation of administrative punishment" problem.

Two, administrative punishment defense, "will confiscate the illegal income of 30000 yuan a fine of 10000 yuan", to "a fine of 30000 yuan", whether or not in violation of "not by the parties themselves and aggravated punishment" principle?

Fortunately, the Xinhua Bookstore in the case of administrative litigation, has not mentioned in "Regulations" in Jiangxi province administrative punishment hearing proceedings have the right questions, as well as defense heavier fines problem.

The investigators County Bureau of industry and Commerce always think, will be "confiscated 40000 yuan" to "a fine of 30000 yuan", is to reduce the range of punishment and non aggravated punishment. The author thinks, "administrative punishment law" in the second paragraph of the "thirty-second not by the parties themselves and aggravated punishment" principle, including not only the total range of punishment may be aggravated due to argue, should also include single discretionary punishment may be exacerbated by defense. Besides, in this case, the business department in the absence of sufficient evidence to prove that the behavior of the Xinhua bookstore has 30000 yuan of illegal income situation, itself not to confiscate the illegal income 30000 yuan. The County Bureau of industry and Commerce no illegal income in the adoption of the Xinhua Bookstore arguments at the same time, will be fined 10000 yuan to 30000 yuan, a clear violation of "not by the parties themselves and aggravated punishment" principle.

Reflection.

In the case of administrative litigation, the County Bureau of industry and commerce is not lost, but it is the luck.

A, investigation of commercial bribery cases, not only should obtain evidence between the parties benefit from interest, but also obtain evidence of unfair related interest payment, to obtain evidence of improper interest payments in order to gain an unfair trading opportunities, how to find out the side bribes bribery providing unfair trading opportunities for, and bribery by trading the unfair transaction machine club implementation. Accepting improper interests, is the buyer or its staff, or there is a close relationship between third people and the transaction, which is the difference between the Commission and general commercial bribery. If cannot prove that the improper benefit payment and obtain improper trading opportunities of causality, not that of commercial bribery.

Although according to the rules of evidence for administrative proceedings, as everyone knows the fact presumption of facts and in accordance with the provisions of law, the court can be directly recognized. But what is "as everyone knows"? The judging criteria in the lawsuit is controversial. Second, even if it is as everyone knows the facts and the facts concluded pursuant to law, there may exist a special case, if the other party to present evidence to the contrary in the lawsuit, the court would not accept our proposal. Therefore, the solid evidence more critical. In the case of the trial, Xinhua Bookstore agent repeatedly reminded the court, county industrial and commercial bureau on many of the key facts, is to rely on reasoning, rather than to prove that the evidence. Fortunately, the Xinhua Bookstore in the trial failed to submit evidence to prove that the County Education Bureau, did not participate in the organization, not the teaching books and periodicals subscription.

Two, relevant informed right, still should be in accordance with the "low" principle, as long as the State Administration for Industry and commerce or the provincial government hearing one of the standard, administrative punishment that parties enjoy hearing right. On one hand, is conducive to the protection of the legitimate rights and interests of the parties of administrative punishment, given enough opportunity; on the other hand, is also conducive to reduce our risk of law enforcement, because the judge is likely to consider the issue from the angle of the protection of rights and interests of the parties.

Three, we in law enforcement according to the identified some normative documents involved in fact or interpretation of the law, although not belong to administrative penalty punishment must inform the parties in the former and the punishment decision book "basis", but from the "persuade through reasoning" point of view, it is necessary to increase the advance Notice of administrative punishment decision book and the administrative punishment, or in law enforcement to the administrative relative person to explain.

　　

　　

14, individuals engaging in real estate development business case

Nancheng County Industrial and commercial bureau Zhang Jiufeng

"The case

Z A and D a partnership at the end of 2005 to 132000 yuan from others within the purchased in Nancheng County XX town (township non city planning area) the original Nancheng County XX supply and marketing cooperatives warehouse and surrounding land (land property is state-owned), and then through the town government and Land Administration for approval in 2006 July to 315 yuan / square rice price contract construction began building, planning building four layer (layer 12 shops, 2, 3, 4 for commercial housing a total of 18 sets of a total area of 2112.5 square meters). To 2007 January was completed three layer, and has been pre-sale 8 shops, 14 sets of commercial housing, received more than 80 yuan yushoukuan. The parties said they did not clear what accounts, no detailed accounts, at present also has not yet completed clearing but confession earn 10000 yuan. The party has paid 132000 yuan to purchase homes, clearing and payment, the nearby villagers 100000 yuan compensation disputes, town planning land leasing 100000 yuan, the town government housing development costs 5000 yuan, taxes 29600 yuan (above all provide a receipt), pay construction costs.

"Controversy

On the case of administrative punishment law there are different views.

A kind of opinion thinks should apply the "City real estate management law" article sixty-fourth, "Regulations" City real estate development and management thirty-fourth "in violation of the present regulations, without obtaining a business license, unauthorized engaged in real estate development business, industrial and commercial administrative departments by the people's government at or above the county level shall be ordered to stop the real estate development business activities, confiscate the the illegal income, can be 5 times of the illegal gains".

Another view was that in the case of housing has not yet been completed, and the illegal income of unlicensed reference "notification method calculation on play the market illegal cases illegal income" (business word [1989] No. 336th) calculation, so how to peel the cost? In addition, the sale of housing is not a clear limit, some several times, some pay part of the deposit, sales limit not calculated, according to the "Regulations" City real estate development and management must have the illegal income. So, in this case directly applicable "unlicensed and banned procedures" the first paragraph of article fourteenth, and shall be punished in accordance with the operation amount according to bureau of discretion, but more simple.

"Comment

One problem, application of law:

"City real estate management law" article sixty-fourth, "City real estate development and management regulations" article thirty-fourth, for no business license authorization to engage in real estate development business, set up the administrative punishment. While the "unlicensed and banned procedures" fourteenth paragraph second, "on unlicensed acts of punishment, the provisions of the laws, rules and regulations provide otherwise, the provisions". Therefore, the unlicensed engaged in real estate development business case belongs to the "City real estate management law" and "Regulations" City real estate development and management jurisdiction, should apply the law and regulations. According to the "City real estate management law" article seventy-first " scope of state owned land in city planning area in the real estate development of the land use rights, engaged in real estate development, trading activities and the implementation of real estate management, according to the law", and "Regulations" City real estate development and management forty-first "land in a foreign city planning area engaged in real estate development and management, the implementation of the real estate development business supervision and management, according to the provisions of this Ordinance", in this case belongs to the "City real estate management law" and "Regulations" City real estate development and management scope.

Calculation of two, illegal income:

1, according to the State Administration for Industry and commerce "play the market illegal cases about illegal income calculation issues notice" (business word [1989] No. 336th), the sales price and the purchase price (or cost) as the difference of the illegal income.

2, cost should be the development and operation of the real estate project expenditure, including costs associated with the purchase of land (compensation, Jiao Cun town government, group of land administration payments), housing construction and development spending, taxes paid and other reasonable expenses.

3, the State Administration for Industry and commerce "approach to the problem of calculation about the investigation of unlicensed illegal cases of unlawful income reply" (industrial and commercial public word [1994] No. 355th) pointed out: "without any formal bill unlicensed case, should be based on all of its income as the illegal gains, difficult to confirm or illegal income personal unlicensed case, can the offender to confirm the administrative organs of industry and Commerce of the oral or written list, as determined by its turnover and illegal income basis." The case is personal unlicensed case, if do not confirm or computing the illegal income 10000 yuan, can be identified as the parties dictate their illegal income basis.

Processing results of this case is the "Regulations" City real estate development and management of thirty-fourth party make: 1, be ordered to stop the illegal act; 2, confiscate the illegal income 10000 yuan, a fine of 10000 yuan of administrative punishment.

Reflection.

On the application of the law.

According to the "Regulations" City real estate development and management is a special law should apply the method, but has not yet completed the formal pre-sale housing construction Trading (some according to the income and expenditure difference is there may be negative), the illegal income is indeed difficult calculation, and "unlicensed and banned procedures" in the second paragraph of the fourteenth rotation is "unlicensed acts of punishment, the provisions of the laws, rules and regulations provide otherwise, the provisions". For unlicensed engaged in real estate development business but the illegal income can not be calculated case, not specified how to implement the punishment situation, can be regarded as "laws, regulations otherwise provided"?

On the two, the illegal income calculation.

Can according to sales to calculate the illegal income? Namely: the total income has sold part of the housing (including has not yet received the part, according to the "notice on the play the market illegal cases of illegal income calculation problem" (business word [1989] No. 336th) the provisions of article fourth, the payment has not been received, should also be included), deducting the cost of housing sales part (as a percentage of the total cost of completion ratio calculation).

The value of the unsold part, can be estimated. Such as, in accordance with the houses price estimation, it is not, can press the "sales of commercial property management measures for" assessment.

In the absence of (or not) accounts and inventory case, for the housing construction costs, may entrust the auditing department or the construction departments under the relevant agencies for assessment or estimation, also can carry out their own investigation to identify the same lot with the type of housing construction costs at the same time. Accordingly, calculate the illegal income of the parties. At the same time, the calculation basis, methods and results to inform the parties, shall order the parties to provide accounts within a time limit, lists and other to prove their illegal income of evidence, and inform the party concerned if not according to the provisions of relevant accounts provide evidence will bear the legal consequences of the negative regulation -- the Supreme People's court "on some issues of administrative litigation evidence" (France - [2002]21) the provisions of article fifty-ninth, "the defendant in administrative procedures in accordance with the statutory procedures require the plaintiff to provide evidence, the plaintiff shall provide and refused to provide in accordance with the law, provide evidence in proceedings in the people's court shall not be accepted, the general."

Xinyu City Administration of industry and Commerce

15, is unfair competition or false advertising?

　　

A, [case]

2007 April, Fenyi County mobile company for business promotion, propaganda and wall text annotation and banners and other forms of advertising by color pages, promoting its new packages, advertising the "full free local calls, calling the overall decline, down to 0.18 yuan / minute, domestic long-distance fell to 70%, the province of all low cost to roam 0.45 yuan / minute" etc.. After investigation and verification, the company of all tariff packages calling costs are not reached 0.18 yuan / minute, long-distance and the domestic roaming charges are not all packages such as advertising called fell as much as 70% and as low as 0.45 yuan / minute.

Two, [dispute]

The parties with a false charge standards publicity, consumer fraud, should be dealt with, in this regard, the case handling personnel without. But the specific how to qualitatively on the case, should apply the law, have different opinions.

first view, should be defined as the publication of false advertising, advertising law "applicable" investigation, there are two main reasons, one is the illegal behavior of carrier is propaganda and banners and other forms of advertising, content for false advertising content, cheat. Two is the "advertisement law" is a special law to adjust the advertising, in effect illegal advertising, other laws and regulations, superior.

second view, should be defined as false propaganda for unfair competition, "Anti Unfair Competition Law" investigation, there are three main reasons, one is the "reverse method" Ninth "operator shall not use advertisement or other means, on the quality, composition, performance, use, producers, effective the term, such as origin of false propaganda misleading as" clearly defined, using false advertising is a kind of unfair competition. Two is the "relationship" and "advertisement law" was not the general law and special law, both in the force of law in this case is the same. Three party advertising costs although rarely, but have significant influence. If you use the "advertisement law" provisions of punishment, punishment is imposed advertising costs more than five times the fine, the punishment is too light, not to punish the offenders of the role. "Anti Unfair Competition Law" provisions of punishment amplitude is punishable by ten thousand yuan to two hundred thousand yuan fine, be punished by the clause, and adapt to the illegal acts of the parties concerned, nature, and the damage degree of the plot is.

Three, [comment]

this case actually is a kind of overlap of law. The same behavior violates the "advertisement law", also in violation of the "Anti Unfair Competition Law". According to "a matter not two penalty" principle, can only choose one method of punishment. So, in the case of overlap of law norms, should choose which method suitable? In this case, I agree with the second view, that should apply the "Anti Unfair Competition Law". In addition to the above reasons, also can analyze and compare from "Anti Unfair Competition Law" and "advertisement law" legislative purpose, principle. "Anti Unfair Competition Law" focuses on encouraging and protecting fair competition, unfair competition, "advertisement law" focuses on regulate advertising activities, promote the healthy development of the advertising industry. Behavior of surface in this case the parties on the advertising is illegal, but in essence is a kind of analysis, using advertising to exclude competitors unfair competitive behavior. The acts of the parties not only damage that its information content of the consumers, but also occupies the potential market share, damage the legitimate interests of the competitors, destroys the fair competition order. Therefore, application of "Anti Unfair Competition Law" and ", more in line with the spirit of the legislation of the administrative punishment law".

Fenyi County Industrial and commercial bureau Zheng Xianghong

　　

16, case analysis

A, [case]

I am in the jewelry market norms, to the urban areas twelve tagging Pd950 zircon jewelry (should be properly labeled Pd950 synthesis of cubic zirconia jewelry, zircon jewelry (Pd750) should be properly labeled Pd750 synthesis of cubic zirconia jewelry) and palladium jewelry (should be properly labeled palladium jewelry, jade jewelry) B (should be properly labeled as jade (, bleaching, filling treatment)) were examined and sampling. The Jiangxi gold and silver jewelry quality supervision and inspection station two according to the national standard GB/T16552-2003 and the National Standardization Technical Committee jewelry box (2004) No. 06 provisions, the name and the precious metal content inspection, bracket Pd its jewelry (i.e. platinum for qualified products), the embedded in the bracket for the naming of zircon unqualified, conclusion for unqualified.

Two, [dispute]

In this case there are three different opinions to the law:

A kind of opinion thinks: "product quality law" thirty-ninth article: the Seller shall not sell products, doping, adulterated, not fake, shoddy, not to the unqualified products as qualified products. The reason is the distribution of the distribution of zircon, palladium jewelry and jade no matter how its name, as long as with the statutory inspection agencies inspection and issue the inspection report can be as suspects in the unqualified products as qualified products sales and in accordance with the "product quality law" be punished according to law.

The second view is "anti unfair competition law," the first paragraph of article ninth: operator shall not use advertisement or other means, to the quality of the goods, components, properties, uses, producer, expiration date, origin, making false or misleading propaganda. The reason is not natural zircon, zircon jewelry but synthetic zircon, palladium jewelry and jade nor safety regulations are properly marked, there are false and misleading propaganda in the quality, performance and so on.

The third view is "consumer protection law," the first paragraph of article nineteenth: business operators shall provide truthful information about the commodities and service to consumers, not misleading as false propaganda. The reason is: commodity provider quality, performance shall truthfully inform consumers of goods. Zircon jewelry and palladium jewelry operators in the label is not in accordance with the national standards and regulations truthfully labeled synthetic cubic zirconia and palladium jewelry real name, false propaganda to mislead consumers too.

Three, the author [comment] in favour of the third. At the same time, according to the provisions of the first paragraph of article nineteenth violation of "consumer protection law", according to "consumer protection law" fiftieth article sixth provisions of the punishment, the parties have no reconsideration, no action.

In this case the key lies in the correct understanding of the true meaning of zircon and palladium: zircon is also known as the "zircon", English name ziycom, its main ingredient is zirconium silicate, chemical formula ZY[sio4], because natural zircon with radiation, harmful to human health, must be treated before they can wear, so the market sales of zircon are basically artificial, in accordance with the national standard GB/T16552 - 2003.3.7.1 provisions shall be marked "synthetic cubic zirconia". Palladium is a kind of precious metal, in accordance with the National Standardization Technical Committee jewelry box (2004) No. 06 fourth: in order to avoid confusion, noble metal can be named after an element, palladium jewelry can not be called "palladium jewelry" or "palladium platinum jewelry", "platinum and palladium jewelry". From the Jiangxi gold and silver jewelry quality supervision and inspection and test results of two stations, jewelry bracket are in line with national standards of this batch of zircon jewelry and palladium, just in the label is not well mark the name of commodity. In this case, apply the "consumer protection law" of the people's Republic of China more appropriate.

Four, [thinking] the case caused by the different views of the controversy, we think, in multiple actions have no provision for the same illegal law premise, should consider the facts of a case, the operator operating point, punishment. Not only to regulate market behavior, and conduct education and put a stop to intentionally cause false propaganda, misleading consumer behavior. Standardize the management behavior, with the penalty, education, unify the stop, punishment and propaganda, education.

Xinyu City Industrial and commercial bureau Liu Bing

　　

Ganzhou City Administration of industry and Commerce

17, Ganxian tap water company increases its registered capital is not the case in accordance with the provisions for the registration of change

A, case introduction

2007 year in April 24th, Ganxian industrial and Commercial Bureau law enforcement officers found in the Acceptance Review of Ganxian tap water company 2006 annual enterprise annual inspection materials, its submission of "balance sheet" of paid in capital did not amount to 18936643.5 yuan, and the business license of the registered capital of 7720000 yuan, the actual capital 11216643.5 yuan, but did not apply for registration of change further, the query, according to the "balance sheet" display, the water company to the end of 2004 paid up capital has reached 18936643.5 yuan, an increase of more than 145% registered capital, so far has not been for the change of registration.

After investigation and verification, the Ganxian water company was registered in August 10, 1989, the registered capital of 7720000 yuan, in December 30, 1999, according to the Ganzhou Municipal Planning Commission, Finance Bureau, construction bureau "issued in 1999 on subsidies from the state of Ganxian water supply infrastructure investment plan and budget notice", the parties to obtain 2000000 yuan of funds; according to the Ganzhou Municipal Planning Commission "issued in 2002 on the part of the county the water supply project investment plan notification", the parties from January 2002 16 to December 1, 2003 during the 11 access to debt capital investment projects of 9500000 yuan currency, the funds totaling $11500000, were made into "paid in capital" title, and for the enterprise 30000 tons of water plant construction, to the end of 2004 to 30000 tons of water plant has been officially put into operation (into the enterprise fixed assets).

Two, the focus of controversy

For the parties to the action, there are two kinds of opinions on the qualitative, punishment:

The first view: order the party concerned to the state-owned assets management departments to handle the changes of state-owned assets property right registration to change the registration, the business sector, should not be subject to administrative punishment.

Reason.

" eighteenth enterprise legal person registration regulations": "enterprise legal person to apply for change of registration, shall be approved by the Department in charge or by the authority for examination and approval within 30 days after the registration departments, to apply for registration of change", " regulation on the administration of the registration of enterprises as legal persons" thirty-ninth: "corporate real money than the original registered capital the amount of increase or decrease more than 20% when, should hold capital credit certificate or certificate of capital verification, apply for registration to the original registration authority."

1, the Ganxian water supply company is a state-owned national enterprises, the registration of property rights belong to the local state-owned assets management departments, the departments of registration of property rights of state-owned assets, the credit enterprise certification documents. That should handle the registration of property right change to the business sector for the change of registration capital in state-owned assets management departments.

Therefore, it can be said that the water company's capital increase must be approved by the state owned assets supervision and administration department for approval, obtain property rights registration form, have the duty for the change of registration to the industry and commerce department within 30 days. [the state (government) has not yet identified the money home, can not handle

2, even the water company is not in accordance with the State Council decree 192 "registration of state owned property management approach" and the detailed rules for implementation, hold 30 days for the registration of property right change approval documents issued by the government in the capital changes, based on the "state-owned assets property registration management approach" and the detailed rules for the implementation by the registration authority (state owned assets supervision and Administration Department of economic sanctions on it), and ordered its registration.

The Department of industry and commerce should be found in the above problems will be to the State Department informed by state owned assets supervision and administration department shall order it to make corrections, which after the alteration registration to the industry and Commerce department.

Increased 3, tap water company funds from the beginning of 2000, from 2000 -- 2006 funding is increasing year by year, the "balance sheet" and "balance sheet" is to provide the business sector to be the annual inspection, the business sector has failed to question, to the enterprise and therefore, the punishment should not in the enterprise without the knowledge of.

Second views: the parties not in accordance with the provisions of the registration of alteration of behavior should be punished.

Reason.

1, the parties in violation of the "Regulations on the administration of the registration of enterprises as legal persons" seventeenth, "regulation on the administration of the registration of enterprises as legal persons" the provisions of article thirty-ninth, according to the provisions of the registration of enterprises as legal persons "case management" and its implementing rules, should be given the economic punishment, and the deadline for the change.

2, the enterprise of the funds is approved by the City Planning Commission, made government approval documents, belong to state-owned capital pulled into, there is no need to state owned assets supervision and administration department for approval, and the funds in accordance with the provisions of Party has made "paid in capital" accounts and transferred to fixed assets (plant), in fact occur down capital, they must apply for registration of change of the registered capital.

3, in the "measures for the administration of the registration of property rights of state-owned assets of enterprises" (State Council Decree No. 192) clearly stipulates: "and the detailed rules for the implementation of changes to state owned capital, since the government approved the date of 30 days, handle the registration of property right change" to the State Department, the enterprise should hold the approval documents of the City Planning Commission, 30 days to the State Department for registration of property right change. Registration of property right change is the pre condition of business change management, enterprises should take the initiative to apply for, not without the influence of change of registration of establishment of enterprises violations because not to handle property changes.

Three, analysis

In the investigation process of this case, we visited the planning committee, the office and other related departments, legal counsel the parties also have to communicate with us, and put forward the first opinion, from which we have learned: the Department in the past 10 years not to these state-owned enterprises supervision, also not in accordance with the "provisions" Regulations on the registration of state-owned property right in enterprises and the detailed rules for the implementation of the enterprise property rights registration of annual inspection and registration of property right change, so the enterprise has no idea to handle the relevant registration, causing such a situation. In accordance with the "registration of state owned property management approach" and its implementation details, "the corporate registration regulations" and its implementation rules, I think the parties in obtaining the approval documents and funds should be timely to the relevant departments, actively bid for the property right change of registration, registered capital of change of registration, are not presented in the annual review the act constituted, illegal, considering its special situation, we made not in accordance with the provisions of the act shall be given a warning on the registration of change, and the deadline for registration of alteration of administrative punishment, and will inform the situation of state owned assets supervision and Administration department. In our coordination, tap water company for registration of property right change in the state-owned sector, and to the business sector for the registered capital of the alteration registration.

18, the case: Huayuan vocational false propaganda against the punishment of administrative reconsideration case

　　

[introduction] case

2005 year in June, the applicant has not been approved by the Department of labor and social security of the "international registered dietitian" training permit, unauthorized organized "international registered dietitian" training class, and through promotional materials for school, office schedule number, start time, teachers make misleading false propaganda, at the same time students examination results of fraud, serious violations of the legitimate rights and interests of consumers. The District Administration for Industry and commerce that their actions violated the "PRC Anti Unfair Competition Law" in ninth the first paragraph. According to "the people's Republic of China, the Anti Unfair Competition Law" the twenty-fourth the first paragraph penalties are as follows: ordered the parties to stop the illegal act, and the party fined 15000 RMB, turned over to the state treasury.

　　

[the trial]

In a review of review, access to the case file, evidence in this case: Huayuan vocational school recruit students general rules, Xuan Chuanzhang, set up Webpage, enrollment agreement, fees receipt, classroom rental unit proof and the person in charge of the school, the teacher ask employees records of investigation, the case is composed of more than 10 students with real complaints filed survey.

Reconsideration of the applicant: the case facts are not clear, the applicable law is wrong. Applicants with a Beijing school cooperative education, certification by the Beijing school, Huayuan vocational school just agent training, not the case main body. For the false propaganda "consumer protection law," "Anti Unfair Competition Law", "advertisement law" three laws, which are normative operators behavior, but behavior does not violate the applicant. The applicant is a private school, should be the "Private Education Promotion Law" regulation, in nature is the public welfare institutions, not "operator".

The reconsideration organ considers that: the applicant without obtaining the approval of the Department of labor and social security "international registered dietitian training" permission ", opened the international registered dietitian" training class, since 2005 June, through the website (www.gzhuayuan.com), related admissions Jane chapter leaflets, publicity, "the international registration nutritionist" training class, to recruit students propaganda: 1, in the enrollment propaganda claimed: the school is training institutions a standardized, professional, the school has opened hundreds of training courses of various kinds of, and commitment to "signed the employment agreement in the dietitian enrollment introduction, a monthly salary of not less than 2000 yuan," but after verifying the school has no fixed teaching place, no fixed teachers, school is still supreme 100 training courses, did not sign the employment agreement with the students. 2, the students promised in 2005 September, Beijing invited professional teaching professor, assurance quality power, students have 100 hours of practice class during the study period, and after verification, starting time for the 2005 December, did not please Beijing related teaching professional teachers, 100 hours of practice courses not offered promise. 3, through the "claim of international registered dietitian" qualification examination of the students will be at home and abroad related professional website entry registration code and name, and agency issued "international registered dietitian certificate", but the investigation, from 2005 June to November, the school has 27 students enrolled, and collect training fees to 1700 Yuan 3400 yuan to each student, launched the "international registered dietitian" first training class, and in July 4, 2006 and October 3, 2006 in the published on the website of the 22 students, examination through the list, according to the agreement should be to permit but has not permit. Accordingly, the respondent that the violation of the "Anti Unfair Competition Law" Ninth paragraph 1, constitute unfair competition acts of false propaganda, in accordance with the law. Accordingly, the reconsideration organ decides to maintain.

[comments]

Huayuan vocational school based on the "Private Education Promotion Law" established private schools belong to public welfare undertakings. The Department of industry and Commerce jurisdiction whether legitimacy?

We think: Huayuan vocational school students are non national planning, mandatory, sources of funds are also non state Huaiba, but according to the relationship between market supply and demand autonomy for students training fee business units, consumer contract between the students and the training school formation, from a legal point of view of consumer complaints, rights, legal nature irrespective of its subject pull, the right to intervene, industry and commerce departments should also have jurisdiction to protect the legitimate rights and interests of consumers.

　　

Reflection.

Qualitative the applicant is accurate?

In the case of reconsideration, the respondent the case handling personnel, legal advisors, lawyers are of the view that should be false propaganda qualitative, but from the consumer point of view, as a consumer fraud should be more appropriate, moreover, "Anti Unfair Competition Law" is to adjust the relationship between operators and managers, and the case body is not eligibility.

19, the case: Zhu Gongdong fails to pay the self-employed management fees refuses to accept punishment administrative reconsideration case

[introduction] case

Registration registration applicant self-employed, Zhu Gongdong in 2003 April 1 by the Anyuan County Bureau of industry and commerce business scope: pesticide retail, fruit forest advisory services, has been engaged in individual businesses. In 2004 March, the applicant will be operating the Department of the pesticide business license business name change for the wife humou. In April 1, 2005, the applicant will receive a "re employment concession card", and the pesticide management department manager name from his wife Humou change to the applicant. In 2006, January to September, the applicant to receive "re employment concession card" request on the grounds of refusal to pay management fees preferential, soho. In November 13, 2006, Anyuan County Bureau of industry and Commerce made the punishment decision, consider the applicant Zhu Gongdong fails to pay the self-employed management fees behavior, in violation of the "Provisional Regulations on the management of urban and rural individual industrial and commercial households" (hereinafter referred to as "Regulations") the provisions of article thirteenth, according to the "Regulations" article twenty-second (a), (two) and "Regulations for the implementation of twenty-second rules" provisions of the fourth paragraph of the applicant, the administrative punishment shall be ordered to pay 1 - September, management fees 2385 yuan, a fine of 4770 yuan turned over to the state treasury.

The applicant refuses to accept the punishment, apply for reconsideration to the trade and Industry Bureau of Ganzhou city.

[the trial]

In a review of review, access to the case file, including: Zhu Gongdong since 2003 5 self-employed business license, proof of the applicant unit, payroll, laid-off that book to the Bureau of labor employment concession card, proof of Social Security Bureau, Anyuan County; Anyuan County Industrial and Commercial Bureau urged the payment of management fees, assessment fees notice notice on the request of an applicant, enjoy the preferential policies for the reply and inquiry transcripts, documentary.

Reconsideration of the applicant: Industrial and commercial sector is not in accordance with the "management approach" charges of administrative provisions of article fourth "by the financial department of the State Council and provincial government approval of price," and no fee basis and not in accordance with the law to the public; he has "re employment concession card" shall enjoy preferential charging.

The reconsideration organ considers that: the applicant for many years engaged in individual business, according to the State Council provisions (2002) No. 57, Lao She, [2002]20 and other documents, it does not have to re employment support policies, the conditions of eligibility, does not belong to the issuance of "re employment concession card" object, the Labor Department of Anyuan County, also made it clear to the preferential card "is no longer given the limited, and will be written off", and not through the Anyuan County Bureau of industry and Commerce of the verification procedures, the applicant to circumvent the relevant national re employment support policies, not enjoy the preferential reemployment qualifications, but refused to pay management fees of the self-employed, in violation of the "Provisional Regulations" relevant provisions of urban and rural individual industrial and commercial households "management and its implementation detailed rules", the applicant according to the "Regulations" and "rules for the implementation of" administrative punishment in accordance with the law. Accordingly, the reconsideration organ decides to maintain.

[comments]

One, those who hold the "re employment concession card" of the self-employed, whether all should be preferential?

A kind of opinion thinks: those who hold the "re employment concession card" of the self-employed, should be given preferential.

According to another view: to grasp the card by self-employed preferential card is valid, two to perform "verifying the correct" program, not to the holder will be given preferential.

We think: should be in accordance with the provisions of the State Council (2002) No. 57, Lao She, [2002]20 and other documents, perform the toll authority "to verify the correct" duties, on the operators claim, gain preferential certificate shall not implement the fee exemption preferential policies.

Reflection.

The self-employed have pesticide retail business qualifications? Agricultural operation whether to restrict industry?

According to the State Council "on the strengthening of chemical fertilizer, pesticide, agricultural film management regulations" and other relevant provisions, the main channel management management of fertilizers and pesticides, agricultural film still take agricultural supply and marketing cooperatives, agricultural sector "three stop", and "the provisions of the unit, no unit or individual shall not be engaged in chemical fertilizers, pesticide, agricultural film".

According to the State Council (2002) No. 57 "about the laid-off workers engaged in individual businesses about the fees preferential policies of the notice": "a, all laid-off workers engaged in individual businesses, in addition to national restrictions on the industry (including construction, entertainment and advertising, sauna, massage, Internet bar, oxygen bar, the same below) outside,... From the relevant... Fee "provisions, engaged in national limits industry re employment of laid-off workers self-employed should not enjoy the relevant preferential, pesticide management is" the state restrictions on industry "? Then, found in the pesticide management of the re employment of laid-off individuals shall not enjoy preferential charging? At present, the people's court is ruling result is negative.

Nanchang City Industrial and Commercial Bureau

　　

20, intermediary underwritten is false registered

Capital, false capital contribution or withdrawal of capital

One, the basic facts of the case:

Jiangxi new building materials Co., Ltd. for company registration in 2006 June, the shareholders of the company at the only actual pay 1500000 yuan of investment circumstances, through to a man in the middle (dealt with) the payment of 5000 yuan of funds use fees, by the shareholders of the company name in the company set up temporary account 500000 yuan, followed by the bank. The bill has achieved 2000000 yuan of registered capital verification report, and obtained 2000000 yuan of registered capital of the company business license in June 27, 2006. According to the company and a man in the middle of the use of funds protocol, man in the middle in the 500000 yuan of funds banks in the bank statement immediately after the full back, due to special circumstances, in June 30, 2006, the company has obtained a business license, the intermediate talents will the money back.

Two, the focus of controversy:

Qingyunpu District Administration of industry and commerce market department in the investigation and handling of the case, the illegal act of the party a Jiangxi new building materials limited to qualitative treatment, generated significant differences.

The first view: the case should be false registered capital qualitative treatment. The reason is, the company in applying for company registration, company shareholder actual subscription only 1500000 yuan of funds, the other 500000 yuan of funds is the intermediate in the name of the shareholder information, and not long after the return, constitute violations for company registration of false registered capital of.

The second view: the case should be a false capital contribution and qualitative. The reason is the amount of capital contribution, the registered capital of the company shall be the actually paid up by all shareholders, and the company in applying for company registration, using intermediate people money false capital contribution, shareholders actually did not pay 500000 yuan, is a personal act of shareholders, should be punished in accordance with the false behavior of investment.

The third view: the case should be withdrawing qualitative treatment. The reason is, the company registration and obtain the business license of the company 2000000 yuan of funds, the existence of the temporary account, statement and accounting firm capital verification report of the bank is true, after the transfer of which 500000 yuan of funds not in obtaining the business license of the company before, but, this accords with the flight time element contribution: the illegal activities in the company after the establishment; and do not meet the time requirements of false registered capital: the illegal activities in applying for company registration.

Three, analysis:

For intermediary underwritten for incorporation, registered after the money withdrawn behavior should be how qualitative? China's "company law" article 199th, article 200th, article 201st for false registered capital, a false capital contribution, the withdrawing three Act provisions, but not very clear. Because these three kinds of illegal acts have many similarities, and even the existence of overlapping in some aspects of the situation, it is easy to confuse. From this case behavior, the behavior is consistent with the fraudulent means (the loan capital as its capital), false for company registration feature of registered capital, and in line with the characteristics of the promoters, the shareholders of the company have a false capital contribution, also after the establishment of the company and withdraw their capital characteristics. The behavior is a violation of the state of the company's registration management system, but also a violation of the management system of state for the company contribution. But a careful analysis about the case, we agree with the first opinion, the case shall be false registered capital for the registration process qualitative company, the reasons are as follows:

(a) first of all, from the subjective intent, false registered capital of the aim of the behavior is obtained through false registered capital of the company registration; false investment behavior is designed by a false capital contribution for the shares of the company; the withdrawing behavior is to withdraw the investment, motivation is often to escape debt or diversion use. From the facts of the case, obviously the purpose of it is to achieve the company registration without cheating company or to escape debt to. Secondly, from the perspective of behavior, false registered capital focuses on the integrity of the company sponsors or shareholders behavior; individual false capital contribution, smoke escape capital is focused on the promoter or shareholder behavior. That is to say, on the implementation of false registered capital of the act, the other promoters or shareholders tend to be informed, and false capital contribution, withdrawing the behavior with respect to other promoters or shareholders are often hidden. From the facts of the case, the actual investor is the company's shareholders, man in the middle is not only capital, lending to companies as the registered capital, the behavior is actually the whole will of the shareholders, so the acts of the parties in accordance with the features of false registered capital behavior.

(two) the man in the middle in the bank capital is not the shareholders of the company legal capital. Shareholders may make capital contribution in all his money, can also use their legally acquired the right to use money, including the use of loan capital, but the man in the middle generation of shareholders in the bank 500000 yuan, Legitimate loan relationships have not formed between the two sides, shareholders of the non - ownership, also does not have legal use right, but the intermediary for high fees for the use of illegal, false capital contribution for the company for 2000000 yuan of registered capital of the company registration and implemented in cooperation. "Company law" the twenty-sixth stipulation: "the registered capital of a limited liability company as the capital contributions subscribed by all the shareholders registered in the company registration authority." All the shareholders of the company of the capital contributions subscribed is only 1500000, but registered company registered capital of 2000000 yuan, its behavior belongs to the false registered capital obtains company registration act.

(three) the illegal behavior does not happen in the company after the establishment. "Company law" the 199th stipulation: violation of the provisions of this law, false registered capital, submitting false materials or by other fraudulent means to conceal important facts of the company's registration, the company registration authority to make corrections, on any of the registered capital of the company, a false registered capital amounting to 5% more than 15% of the capital; the 201st article: the promoters of the company, shareholders in the company after the establishment, withdraw their capital contribution, the company registration authority to make corrections, punishable by more than 5% of the amount of capital contribution withdrawn following a 15%. As a result, false registered capital behavior really occurred in the company registration, and the flight of investor behavior occurs in the company after the establishment. The case despite the transfer of funds behavior occurs after the establishment of the company, but in the behavior, namely in applying for company registration, the company has been implemented by using intermediaries false capital funds, bank statement, capital verification report, the illegal act and to cheat the company registration.

(four) part of the transfer of funds to false registered capital behavior. The case from the beginning by the man in the middle to later generation shareholder false capital contribution, obtaining the business license of the company, and later will be 500000 yuan of funds back to, this is a carefully planned steps for 2000000 yuan registered capital of the company registration act. From the whole process, started the false contribution is the essence of the case, the transfer of funds back is the last step in the case. From the analysis of the logical beginning, because capital is a false capital contribution, so must be transferred; since the beginning investment is not legitimate, do not talk to go up the subsequent withdrawal of capital. If capital flight is qualitative, is equal to man in the middle front generation that shareholders legitimate, denied the illegal party the whole behavior, so not only can not make all the illegal act of the party is stopped and treatment, illegal intermediary also will be difficult to give the subject.

　　

　　

　　

21, on the Jiangxi Real Estate Limited advertising illegal case analysis

2006 September, Nanchang City, Xihu District industrial and commercial bureau receives masses to report that the Jiangxi Real Estate Limited (hereinafter referred to as the company) outdoor advertising content publishing false, to deceive consumers. Therefore I Bureau in October 23, 2006 investigation.

verified, the company is a Sino foreign joint ventures, real estate development, business scope: Housing rental property management, April 24, 2000; Nanchang City Administration of industry and Commerce registration. In March 22, 2004 the company and Nanchang Fukuda Property Management Limited has concluded a residential property management services contract. Then the company in 2005 November signed the outdoor advertising and Nanchang Century Advertising Co. Ltd. issued contracts, and the "Fukuda property" released in outdoor advertising. The launch venue in Xihu District belt Street No. 2 building, the release time from November 20, 2005 to November 19, 2006, advertising costs 80000 yuan, to the paid. By questioning the parties concerned and the investigation found that the investigation, "Fukuda property" logo and the words, is the Shenzhen Futian property development limited company's unique symbol, but also their registered trademarks and brand. Shenzhen Futian property is the property management enterprises. Enjoy a high reputation. Nanchang Fukuda Property Management Co. Ltd. is an independent legal person, and Futian in Shenzhen property development limited company subordinate relationship.

Qualitative punishment in the case investigation, "three different opinions"

first view: the company in the "Fukuda property" as the contents of advertisements propaganda, misleading to the property is Shenzhen Futian property, can let a person to trust property. But in fact Shenzhen Futian property and Nanchang Fukuda property two enterprises are completely different, and its service system, service quality, level is not at the same level, obviously the purpose is to mislead consumers. In violation of the provisions of article ninth "Anti Unfair Competition Law", the operator shall not use advertisement or other means, the provisions on the quality, composition, performance, use, producers, expiration date, origin, making false or misleading propaganda. Should according to "Anti Unfair Competition Law" twenty-fourth paragraph 1 penalty punishment.

The second view: the company in violation of "advertising law" article third advertisement shall be true, legitimate, in accordance with the requirements of socialist spiritual civilization construction, fourth advertisements shall not contain false contents, not to cheat and mislead consumers, fifth advertisers, advertising operators, advertising publishers engaged in advertising activities, shall abide by the law and administrative regulations, honesty and credit principle. Because the company in its advertising content, highlight the use of "Fukuda property" words and patterns, and the content is Shenzhen Futian property of well-known trademarks, brand, Shenzhen Futian property is the property management companies, enjoys a high reputation in the field, by the national Ministry of construction as "National City property management excellent demo building". The company in the form of advertising in Nanchang Fukuda property change Shenzhen Futian property brand, in violation of the advertising should be true and legal, the principle of honesty and credit, the false content, mislead and deceive consumers, should according to "advertisement law" article thirty-seventh the advertisement for goods or services to make false propaganda, the advertising supervision and administration organ shall order advertisers to stop publication, and matching the cost of advertising in the corresponding range publicly corrected to eliminate the influence of advertising costs, and impose a fine of one to five times the.

The third view: the company will "Fukuda property" to highlight the use in outdoor advertising, and the text, graphics is a registered trademark of Shenzhen Futian property company, it's easy to make consumers misunderstanding, so that consumers can not know the real situation of the real property service. Violation of the "consumer protection law," article nineteenth operators shall provide truthful information about the goods or services to the consumer anger, regulations may not make misleading false publicity of the second paragraph, comply with the "consumer protection law" fiftieth (six) range adjustment.

In this case, the real estate limited use of outdoor advertising to confuse the Nanchang Fukuda property companies and Shenzhen Futian property company name, company name will others special sign, trademark as their development of residential property services, is a typical example of the improper competition behavior.

First of all, from the analysis of the motivation, the outdoor advertising establishment of Nanchang city is located in bustling downtown business district, with Zhongshan Road the largest flow of people, large billboards, and eye-catching location, apparently to the crowd can easily see the company's advertising, to maximize advertising visual commercial purpose, its behavior is part of a business. Secondly, from its own terms, the company uses this property with each other irrelevant that property to confusion, it is the value of Shenzhen Futian property is higher in the consumer awareness and good service, and consumers in the purchase of housing on the residential property and good service, safety supervision, is the largest owners living desire after the. The company in order to expand their visibility for the development of real estate, real estate development to create conditions for the future, improve operating income. So the essence of advertising, the purpose is in a market competition to sell the company commercial housing.

Resulting from false advertising misleading results, one is the extension of the company's reputation, expand market space, to suppress the real estate sales of other real estate business development, damage the infringed units credibility and interests, the other is a direct consequence of direct to deceive consumers, harm the legitimate rights and interests of consumers. Once again, its harm, disrupted the market fair competition program. To sum up, the company in accordance with the provisions of the act of unfair competition, the operator violates the "Anti Unfair Competition Law", damage the legitimate rights and interests of other operators, and disturbing the socio-economic order behavior.

In the "advertisement law", "Anti Unfair Competition Law" and "consumer protection law" and other laws have adjusted terms, in the concrete implementation process, should be based on facts, the spirit of legislation and carry out according to the specific law connotation and extension, to ensure that the law based, standardized, accurate on comprehensive qualitative punishment.

In the case of a real estate Co., Ltd. advertisers by advertising false propaganda to mislead consumers, not only violated market fairness, honesty and credit principle, the destruction order economy healthy and fair competition, damage the legitimate rights and interests of consumers, but also damage the credibility of the infringed, rights, the application of "anti unfair competition law" qualitative punishment is appropriate.

The above opinion, bureau case review committee finally adopted the first view. That the company will brand of others without permission, consent to highlight the use of confuse consumers recognize ability, is a typical unfair competition behavior, in accordance with the "anti law" the twenty-fourth regulation, qualitatively the false advertising acts of unfair competition. Shall be ordered to stop the illegal act, impose a fine of 80000 yuan.

　　

Yingtan City Administration of industry and Commerce

　　

22, the Bureau of industry and commerce can be charged on behalf of pad fines

　　

The case:

Jiangxi Far East Pharmaceutical Co. Ltd. for outdoor advertisement issue, administrative punishment is not the word [2007] 105th Guixi City Industrial and commercial bureau your business decisions for reconsideration, the reason is the non outdoor advertising publishers, the release agent contract in July 4, 2006 and the Yingtan City Huachang trade limited company signed the advertisement, the Far East Pharmaceutical company commissioned Huachang company in Guixi Tongcheng building roof released "koussou" products, outdoor advertising, Huachang company is not required under the contract and to do other advertising. Far East Pharmaceutical requirements to be restored, Huachang company Far East Pharmaceutical made suspension. In February 15, 2007, Jiangxi Far East Pharmaceutical limited company not to Guixi City Industrial and commercial bureau handled outdoor advertising registration, unauthorized copper building roof hanging "health advocates, reflect the future, Far East Pharmaceutical" advertising, are unauthorized outdoor advertisement behavior, according to the "Regulations" provisions of article eighteenth of the registration administration of outdoor advertisements, Guixi City Administration of industry and Commerce made in July 2nd 10000 yuan fine to the Far East Pharmaceutical company. Jiangxi Far East Pharmaceutical Co., Ltd. for reconsideration in July 22 to the Yingtan Municipal Bureau of Commerce and industry, said advertisers is Huachang company, this ad should also be punished even illegal advertisement promulgator Huachang company. Requirements Guixi City Administration of industry and commerce changes the object of penalty, Huachang company also take the initiative to admit that ads default, willing to bear the relevant punishment liability, in my bureau Jiangxi Far East Pharmaceutical Co., Ltd. for reconsideration, investigation, to pay a fine of 10000 yuan Huachang company based in the city of agricultural bank in July 30 to the Guixi Municipal Bureau of Commerce and Industry Department account. For the fine is the collection of controversy.

The dispute:

The first view: Agricultural Bank of China issued a receipt of the payment unit of the Jiangxi Far East Pharmaceutical Company Limited, we no matter from where the money, because the bank issued the payment unit has been marked a receipt is Jiangxi Far East Pharmaceutical Co. ltd.. The fine can be thought of as the Far East to pay.

Second kinds of opinions that the 10000 yuan fine should not charge. The reason is the fine receipt remarks column clearly "Huachang generation Far East mat during the period of reconsideration to avoid late fees increase. The money should be Huachang trade mat, not far East Pharmaceutical automatic payment, shall return the Huachang Industry & Trade Co., ltd..

Analysis.

I agree with the second opinion: because from the substance of the application for reconsideration, the Far East Jiangxi Pharmaceutical Company Limited has been that he is not advertising unit, belonging to the Huachang inspired release, illegal subject is Huachang Industrial and Trading Company, Guixi City Administration of industry and commerce is considered far pharmaceutical industry limited company is Jiangxi "outdoor advertising outdoor advertising registration management regulations" release units in second ", including the release of outdoor unit for others, and advertising is advertising units and individuals" outdoor self promotion if charged Hua Changdai mat fines, undoubtedly recognized Huachang is illegal subject, then the Jiangxi Far East Pharmaceutical Co. Ltd. to apply for reconsideration reason is established, this is the one. Then according to do hair [1998]14 document in the second chapter"...... Where the state provides decision and collection of fines phase separation, the parties to the administrative punishment decision letter to collection agencies entrusted by the financial department to pay a fine of 10000 yuan fine ", by the Jiangxi Far East Pharmaceutical Co. Ltd. the punishment decision letter to the bank to pay, payment process can happen in this case are non Far East Pharmaceutical Co. Ltd. It Huachang trade taxes, industrial and commercial bureau not recognized the fine is the Far East Pharmaceutical Company Limited to pay fines to return the nature, Hua Chang Trading Co. ltd.. Accordingly, Guixi City Administration of industry and Commerce in July 31st letter, request China Changhua Chang to the bureau to apply for refund procedures.

Reflection.

Jiangxi Far East Pharmaceutical Co. Ltd. advertising unit in the case of Huachang trade limited company default, leading to the Far East Pharmaceutical Company in outdoor advertisement is not according to the procedures of registration. Far East Pharmaceutical Co Ltd argued that "the world which have beaten also fined". In fact, the Far East Pharmaceutical Co. Ltd. and Huachang Industrial and Trading Company advertising agency contract disputes can only be adjusted by civil law, not the influence of the commerce and Industry Bureau of Jiangxi Far East Pharmaceutical Co., Ltd. punishment. In the payment of fines, must be resolutely to do hair [1984]14 documents for normative behavior, collection of the fine, really do administration according to law.

　　

　　

　　

The case is merged or single processing

　　

The case:

The Zhu began in mid March this year, is not approved by the business sector registered, arbitrarily in West Street Guixi city rental store in the gaming entertainment was seized, XIONG Shi branch, the branch according to the procedures for handling cases reported to the Guixi Municipal Bureau of Commerce and industry regulations shares shall be placed on file after the investigation into the processing stage, on the second day in the stock of the approved regulations Zhu unlicensed behavior of punishment of a fine of 3100 yuan. The Bureau of Xinjiang branch and found the Zhu in May this year in the branch area without a license, engaged in the electronic game entertainment, Xinjiang branch according to the procedures for registration formalities to the bureau. The Zhu unlicensed electronic games and XIONG Shi, Xin River branch was almost at the same time, and be dealt with the male stone branch of the punishment document is issued. Xinjiang Bureau filing requirements.

The dispute:

The first view is that: the parties Zhu unlicensed behavior in the soon to be punished at the same time, also found in another place of unlicensed video game, can only be identified Zhu did not truthfully to the industrial and commercial departments that issue, there is no repetitive penalty, coping Zhu another unlicensed acts on file for investigation and prosecution.

The second view: if you agree to file: it may touch the "no penalty" principle, the reason is illegal in the case the parties occurred in the same area, it is the same illegal act, should be merged.

Analysis.

I agree with the second opinion, the case should be merged. An illegal act of the party breaches a legal laws and regulations, and in the same area. In the investigation process, the parties have occurred at two sites in a jurisdiction, illegal electronic game, because of the fear of penalty, not from the real confessed violations in another place illegal operations, resulting in two primary branch has to intervene in the case, if an administrative organ of the party in the two branch within the jurisdiction illegal operation, and were punished, will violate the "no penalty principle", the same party, the same kind of illegal behavior, because has investigated, and two copies of the same content punishment document is a kind of against the administration according to law performance.

Guixi City Administration of industry and Commerce in the case to be treated, some comrades think, two illegal behavior is the continuous occurrence of the same nature of the illegal acts, shall be given an administrative punishment, two illegal behavior in different locations, but the parties did not truthfully provide, conceal violations in another place, the parties should also bear the responsibility of providing false materials, Guixi City Administration of industry and Commerce in the study of the case, adopted second kinds of opinions, on Zhu in two regions for illegal business practices associated with processing, punishable by a fine of 5500 yuan.

Reflection.

Zhu unlicensed case with combined treatment ended, embodies the "no penalty" principle, this is also the basic principle of administrative penalty. An illegal act of the party in violation of the provisions of a law, can only be made by an administrative organ punishment, but there are still "many uncertain factors no penalty" principle in practice. To Zhu unlicensed case as an example, if the two branch is given to implement the administrative penalty to the branch name is Zhu, businesses operating without license behavior is bound to be the two branch of the punishment, to a certain extent against "the punishment no longer" principle. If the occurrence of this phenomenon, as an administrative law enforcement organs should actively coordinate, and in the name of administrative punishment, the seriousness of law, to standardize the operation order.