(199 1 adopted at the 20th meeting of the Standing Committee of the Seventh NPC on June 29th 199 1 promulgated by Decree No.46 of the President of the People's Republic of China on June 29th, and effective as of June 29th 1992 1).
Chapter I General Principles
Article 1 This Law is formulated for the purpose of implementing tobacco monopoly management, organizing the production and operation of tobacco monopoly products in a planned way, improving the quality of tobacco products, safeguarding the interests of consumers and ensuring the national fiscal revenue.
Article 2 The term "tobacco monopoly products" as mentioned in this Law refers to cigarettes, cigars, shredded tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods, cigarette tow and special machinery for tobacco.
Cigars, cigars, cut tobacco and redried tobacco leaves are collectively called tobacco products.
Article 3 The State shall, in accordance with the law, exercise monopoly administration over the production, sale, import and export of tobacco monopoly commodities and implement a tobacco monopoly license system.
Article 4 The department of tobacco monopoly administration in the State Council shall be in charge of tobacco monopoly work throughout the country. The tobacco monopoly administrative departments of provinces, autonomous regions and municipalities directly under the Central Government are in charge of tobacco monopoly work within their respective jurisdictions, under the dual leadership of the tobacco monopoly administrative departments of the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, with the leadership of the tobacco monopoly administrative departments of the State Council as the main one.
Article 5 The State shall strengthen scientific research and technological development of tobacco monopoly products, improve the quality of tobacco products and reduce the content of tar and other harmful components.
The state and society strengthen publicity and education on the health hazards of smoking, prohibit or restrict smoking in public transport and public places, discourage teenagers from smoking, and prohibit primary and secondary school students from smoking.
Article 6 The state practices tobacco monopoly management in ethnic autonomous areas, and takes care of the interests of ethnic autonomous areas, tobacco planting and tobacco products production in ethnic autonomous areas in accordance with the relevant provisions of this Law and the Law on Regional Ethnic Autonomy.
Chapter II Tobacco Planting, Purchase and Allocation
Article 7 The term "tobacco leaves" as mentioned in this Law refers to the flue-cured tobacco and famous sun-cured tobacco needed for the production of tobacco products, and the list of famous sun-cured tobacco shall be stipulated by the department of tobacco monopoly administration in the State Council.
Other sun-cured tobacco not listed in the list of sun-cured tobacco can be sold in the fair trade market.
Article 8 Tobacco planting should cultivate and popularize excellent varieties according to local conditions. Excellent varieties shall be supplied by local tobacco companies after being examined and approved by the national or provincial tobacco variety examination and approval committee.
Article 9 The tobacco purchasing plan shall be issued by the planning department of the local people's government at or above the county level according to the plan issued by the planning department of the State Council, and no other unit or individual may change it.
Tobacco companies or their entrusted units shall sign tobacco purchase contracts with tobacco growers. The tobacco purchase contract shall stipulate the tobacco planting area.
The purchase price of tobacco leaves shall be formulated by the competent price department of the State Council in conjunction with the competent tobacco monopoly administration department of the State Council in accordance with the principle of graded pricing.
Article 10 Tobacco leaves shall be purchased by tobacco companies or their entrusted units in accordance with the purchase standards and prices stipulated by the state, and no other unit or individual may purchase them.
Tobacco companies and their entrusted units shall, in accordance with the standards stipulated by the state, purchase all tobacco leaves produced by tobacco farmers according to the planting area agreed in the tobacco purchase contract, and shall not lower the price, and properly handle disputes arising from the purchase of tobacco leaves.
Eleventh provinces, autonomous regions and municipalities directly under the central government, the distribution plan of tobacco leaves and redried tobacco leaves shall be issued by the planning department of the State Council, and the distribution plan of tobacco leaves and redried tobacco leaves within the jurisdiction of provinces, autonomous regions and municipalities directly under the central government shall be issued by the planning department of provinces, autonomous regions and municipalities directly under the central government, and no other unit or individual may change it.
A contract must be signed for the allocation of tobacco leaves and redried tobacco leaves.
Chapter III Production of Tobacco Products
Twelfth the establishment of tobacco products production enterprises, must be approved by the Department of tobacco monopoly administration in the State Council, tobacco monopoly production enterprise license, and approved by the administrative department for Industry and commerce registration; Its division, merger and cancellation must be approved by the department of tobacco monopoly administration in the State Council, and go through the formalities of change and cancellation of registration with the administrative department for industry and commerce. Without obtaining the license of tobacco monopoly production enterprise, the administrative department for industry and commerce shall not approve the registration.
Thirteenth tobacco products production enterprises to expand the production capacity of capital construction or technological transformation, must be approved by the Department of tobacco monopoly administration in the State Council.
Fourteenth provinces, autonomous regions and municipalities directly under the central government, the annual total output plan of cigarettes and cigars issued by the planning department of the State Council. The annual total output plan of cigarettes and cigars of tobacco products production enterprises shall be issued by the provincial tobacco monopoly administrative department according to the plan issued by the planning department of the State Council, combined with the market sales situation, and the local people's government shall not issue the task of overproduction to tobacco products production enterprises. Tobacco products production enterprises need to produce cigarettes and cigars in excess of the annual total output plan according to the market sales situation, and must be approved by the tobacco monopoly administration department of the State Council.
According to the annual total output plan issued by the planning department of the State Council, the National Tobacco Corporation issued cigarette output indicators to the provincial tobacco companies in different grades and categories. According to the classified cigarette output index issued by the National Tobacco Corporation and combined with the market sales situation, the provincial tobacco companies issue classified cigarette output index to tobacco products production enterprises. Tobacco products production enterprises can make appropriate adjustments to cigarette production indicators of different grades and categories within the scope of their annual total output plan according to the market sales situation.
Chapter IV Sales and Transportation of Tobacco Products
Fifteenth enterprises engaged in the wholesale business of tobacco products must be approved by the department of tobacco monopoly administration in the State Council or the department of tobacco monopoly administration at the provincial level, obtain the license of tobacco monopoly wholesale enterprise, and be approved and registered by the administrative department for industry and commerce.
Article 16 An enterprise or individual engaged in the retail business of tobacco products shall issue a tobacco monopoly retail license upon the entrustment of the superior tobacco monopoly administrative department and the examination and approval of the administrative department for industry and commerce of the people's government at the county level. If a county-level tobacco monopoly administrative department has been established, it may also issue a tobacco monopoly retail license upon examination and approval by the county-level tobacco monopoly administrative department.
Seventeenth the State Council tobacco monopoly administrative department in conjunction with the the State Council price department according to the cigarette grade selected some brands of cigarettes as representative products. The prices of representative products shall be formulated by the competent price department of the State Council in conjunction with the competent tobacco monopoly administration department of the State Council. The prices of non-representative cigarettes, cigars and shredded tobacco shall be set by the tobacco monopoly administrative departments of the State Council or provinces, autonomous regions and municipalities directly under the Central Government authorized by the tobacco monopoly administrative departments of the State Council, and reported to the price administrative departments of the State Council or the people's governments of provinces, autonomous regions and municipalities directly under the Central Government for the record.
Article 18 The State shall formulate grading standards for tar content of cigarettes and cigars. Cigarettes and cigars shall be marked with tar content grade and "Smoking is harmful to health" on the packaging.
Article 19 It is forbidden to broadcast and publish advertisements for tobacco products on radio stations, television stations and newspapers.
Article 20 Cigarettes, cigars and packaged cut tobacco must apply for trademark registration. Without approval and registration, it may not be produced or sold.
It is forbidden to produce and sell tobacco products that counterfeit the registered trademarks of others.
Article 21 Trademark marks of tobacco products must be printed by enterprises designated by the provincial administrative department for industry and commerce; Non-designated enterprises shall not print trademarks of tobacco products.
Twenty-second consignment or consignment of tobacco monopoly products, must hold a transportation permit issued by the department of tobacco monopoly administration or an institution authorized by the department of tobacco monopoly administration; Without a transport license, the carrier shall not carry the goods.
Twenty-third mailing and carrying tobacco leaves and tobacco products in different places shall not exceed the limit set by the relevant competent department of the State Council.
Twenty-fourth individuals carrying tobacco products into the country shall not exceed the quota prescribed by the relevant competent authorities in the State Council.
Chapter V Production and sales of cigarette paper, filter rods, cigarette tow and special machinery for tobacco.
Twenty-fifth enterprises that produce cigarette paper, filter rods, cigarette tow and special machinery for tobacco must report to the department of tobacco monopoly administration in the State Council for approval and obtain the license of tobacco monopoly production enterprise.
The term "special tobacco machinery" as mentioned in this Law refers to the whole machine of special tobacco machinery.
Twenty-sixth cigarette paper, filter rods, cigarette tow, tobacco machinery production enterprises shall organize production in accordance with the plan of the State Council tobacco monopoly administration department and the order contract signed with tobacco products production enterprises.
Article 27 Enterprises that produce cigarette paper, filter rods, cigarette tows and special machinery for tobacco can only sell their products to tobacco companies and tobacco products production enterprises that hold tobacco monopoly production enterprise licenses.
Chapter VI Import and Export Trade and Foreign Economic and Technical Cooperation
Article 28 The department of tobacco monopoly administration in the State Council shall, in accordance with the provisions of the State Council, manage the import and export trade and foreign economic and technological cooperation of the tobacco industry.
Article 29 An enterprise engaged in the import and export of tobacco monopoly products, the consignment of foreign tobacco products or the purchase and sale of duty-free foreign tobacco products within the customs supervision area must obtain the license of special tobacco monopoly enterprise with the approval of the tobacco monopoly administrative department of the State Council or the provincial tobacco monopoly administrative department.
Enterprises holding special tobacco monopoly licenses must submit purchase and sale plans and statements to the tobacco monopoly administrative department of the State Council in accordance with the provisions of the tobacco monopoly administrative department of the State Council.
Chapter VII Legal Liability
Article 30 Whoever, in violation of the provisions of this Law, purchases tobacco leaves without authorization shall be fined by the department of tobacco monopoly administration, and the illegally purchased tobacco leaves shall be purchased at the price stipulated by the state; If the quantity is huge, the illegally purchased tobacco leaves and illegal income shall be confiscated.
Article 31 Whoever consigns or transports tobacco monopoly products without a transportation permit or in excess of the quantity specified in the transportation permit shall be fined by the department of tobacco monopoly administration, and may purchase the illegally transported tobacco monopoly products at the price specified by the state; If the circumstances are serious, the illegally transported tobacco monopoly products and illegal income shall be confiscated.
If the carrier knows that it is a tobacco monopoly product and transports it for a unit or individual without a transportation permit, the department of tobacco monopoly administration shall confiscate the illegal income and impose a fine.
Those who carry tobacco leaves and tobacco products in different places beyond the national limit shall be dealt with in accordance with the provisions of the first paragraph.
Article 32 Whoever produces tobacco products without the license of a tobacco monopoly production enterprise shall be ordered by the department of tobacco monopoly administration to close down, confiscate the illegal income and impose a fine.
Where cigarette paper, filter rods, cigarette tows and special machinery for tobacco are produced without the license of a tobacco monopoly production enterprise, the department of tobacco monopoly administration shall order it to stop producing the above products, confiscate its illegal income and may concurrently impose a fine.
Article 33 Anyone who engages in the wholesale business of tobacco products without obtaining the license of tobacco monopoly wholesale enterprise shall be ordered by the department of tobacco monopoly administration to close or stop the wholesale business of tobacco products, and his illegal income shall be confiscated and fined.
Article 34 Whoever engages in the import and export business of tobacco monopoly products, the consignment business of foreign tobacco products or the duty-free purchase and sale business of foreign tobacco products without the license of a special tobacco monopoly enterprise shall be ordered by the department of tobacco monopoly administration to stop the above business, confiscate the illegal income and impose a fine.
Article 35 Whoever engages in the retail business of tobacco products without a tobacco monopoly retail license shall be ordered by the administrative department for industry and commerce to stop the retail business of tobacco products, confiscate the illegal income and impose a fine.
Article 36 Whoever produces or sells cigarettes, cigars or packaged cut tobacco without registered trademarks shall be ordered by the administrative department for industry and commerce to stop production and sales and be fined.
Whoever produces or sells tobacco products with counterfeit registered trademarks of others shall be ordered by the administrative department for industry and commerce to stop the infringement, compensate the infringed for the losses and may also be fined; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 37 Whoever, in violation of the provisions of Article 21 of this Law, illegally prints trademarks of tobacco products shall be destroyed by the administrative department for industry and commerce, and his illegal income shall be confiscated and he shall be fined.
Article 38 Whoever resells tobacco monopoly products constitutes a crime of speculation shall be investigated for criminal responsibility according to law; If the circumstances are minor and do not constitute a crime, the administrative department for industry and commerce shall confiscate the tobacco monopoly products and illegal income, and may also impose a fine.
Any staff member of the department of tobacco monopoly administration or tobacco company who takes advantage of his position to commit the crime mentioned in the preceding paragraph shall be given a heavier punishment according to law.
Article 39 Whoever forges or alters the license of tobacco monopoly production enterprise, tobacco monopoly business license and transportation permit as stipulated in this Law shall be investigated for criminal responsibility according to law.
Whoever buys or sells the tobacco monopoly production enterprise license, tobacco monopoly business license and transportation permit as stipulated in this Law shall be investigated for criminal responsibility by applying mutatis mutandis the provisions of Article 117 of the Criminal Law.
Staff members of tobacco monopoly administrative departments and tobacco companies who commit the crimes mentioned in the preceding two paragraphs by taking advantage of their positions shall be severely punished according to law.
Article 40 Whoever smuggles tobacco monopoly products and constitutes a crime of smuggling shall be investigated for criminal responsibility in accordance with the Supplementary Provisions on Punishment of Smuggling Crime; Smuggling tobacco monopoly products, the amount is not large, does not constitute a crime of smuggling, the smuggled goods, articles and illegal income shall be confiscated by the customs, and a fine may be imposed.
Any staff member of the department of tobacco monopoly administration or tobacco company who takes advantage of his position to commit the crime mentioned in the preceding paragraph shall be given a heavier punishment according to law.
Article 41 The department of tobacco monopoly administration has the right to inspect the implementation of this Law. Whoever obstructs tobacco monopoly inspectors from performing their duties according to law by violence or threat shall be investigated for criminal responsibility according to law; Those who refuse or obstruct tobacco monopoly inspectors from performing their duties according to law without using violence or threats shall be punished by public security organs in accordance with the regulations on administrative penalties for public security.
Article 42 Where the staff of the people's courts and relevant departments handling illegal cases privately divide the confiscated tobacco products, they shall be investigated for criminal responsibility in accordance with the provisions of Articles 1 and 2 of the Supplementary Provisions for Punishing the Crime of Corruption and Bribery.
Staff members of the people's courts and relevant departments handling illegal cases who purchase confiscated tobacco products shall be ordered to return them and may be given administrative sanctions.
Article 43 Any staff member of the department of tobacco monopoly administration or tobacco company who abuses his power, engages in malpractices for personal gain or neglects his duty shall be given administrative sanctions; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law.
Article 44 If a party refuses to accept the decision on administrative punishment made by the tobacco monopoly administration department and the administrative department for industry and commerce, he may, within 15 days from the date of receiving the notice of punishment, apply for reconsideration to the organ at the next higher level of the organ that made the decision on punishment; The parties may also bring a suit directly to the people's court within 15 days from the date of receiving the penalty notice.
The reconsideration organ shall make a reconsideration decision within 60 days from the date of receiving the application for reconsideration. If a party refuses to accept the reconsideration decision, he may bring a lawsuit to the people's court within 15 days after receiving the reconsideration decision; If the reconsideration organ fails to make a reconsideration decision within the time limit, the party concerned may bring a lawsuit to the people's court within 15 days after the expiration of the reconsideration period.
If the party concerned fails to apply for reconsideration, bring a suit in a people's court or perform the punishment decision within the time limit, the organ that made the punishment decision may apply to the people's court for compulsory execution.
Chapter VIII Supplementary Provisions
Article 45 the State Council shall formulate implementation regulations in accordance with this Law.
Article 46 This Law shall come into force as of June 6, 2005. 1983 The Regulations on Tobacco Monopoly promulgated by the State Council on September 23rd shall be abolished at the same time.
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Illegal Production and Sale of Tobacco Monopoly Products.
(Adopted at the 148 1 meeting of the Judicial Committee of the Supreme People's Court on February 28th, 2009 and at the 29th meeting of the 11th Procuratorial Committee of the Supreme People's Procuratorate on February 4th, 2009).
In order to maintain the order of the socialist market economy and punish the illegal production and sale of tobacco monopoly products according to law, according to the relevant provisions of the Criminal Law, some issues concerning the specific application of law in handling such criminal cases are explained as follows: Article 1 Whoever produces or sells fake and inferior cigarettes, cigars and other tobacco monopoly products with a sales amount of more than 50,000 yuan shall be convicted and punished for the crime of producing and selling fake and inferior products in accordance with the provisions of Article 140 of the Criminal Law. Without the permission of the registered trademark owner of tobacco monopoly products such as cigarettes and cigars, if the circumstances are serious, he shall be convicted and punished for the crime of counterfeiting registered trademarks in accordance with the provisions of Article 213 of the Criminal Law. Whoever knowingly sells cigarettes, cigars and other tobacco monopoly commodities with counterfeit registered trademarks of others, and the sales amount is relatively large, shall be convicted and punished for the crime of selling commodities with counterfeit registered trademarks in accordance with the provisions of Article 214 of the Criminal Law. Whoever forges or makes without authorization the registered trademark marks of other people's cigarettes and cigars or sells the forged or made without authorization, if the circumstances are serious, shall be convicted and punished for the crime of illegally manufacturing or selling the illegally manufactured registered trademark marks in accordance with the provisions of Article 215 of the Criminal Law. Whoever, in violation of the state regulations on tobacco monopoly administration, illegally deals in tobacco monopoly products without the permission of the tobacco monopoly administrative department, without obtaining the license of tobacco monopoly production enterprise, tobacco monopoly wholesale enterprise, tobacco monopoly franchise enterprise and tobacco monopoly retail license, if the circumstances are serious, shall be convicted and punished for the crime of illegal business in accordance with the provisions of Article 225 of the Criminal Law. Article 2 Where counterfeit and shoddy cigarettes, cigars and other tobacco monopoly products have not been sold, and the value of the goods reaches more than three times the threshold for conviction of sales amount stipulated in Article 140 of the Criminal Law, or the sales amount does not reach 50,000 yuan, but the total value with unsold goods reaches more than 150,000 yuan, the crime of producing and selling counterfeit and shoddy products (attempted) shall be convicted and punished. If the amount of sales and the value of unsold goods reach different legal punishment ranges or both reach the same legal punishment range, a heavier punishment shall be given as appropriate within the legal punishment range with heavier punishment. If the sales price of seized unsold counterfeit cigarettes and cigars can be ascertained, it shall be calculated according to the actual sales price. If the actual sales price cannot be ascertained, if there is a brand, it shall be calculated according to the retail price issued by the provincial tobacco monopoly administration department where the brand cigarettes and cigars are seized; If there is no brand, it shall be calculated according to the average retail price of cigarettes in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized. Article 3 The illegal operation of tobacco monopoly commodities shall be deemed as "serious" as stipulated in Article 225 of the Criminal Law under any of the following circumstances: (1) The amount of illegal operation is more than 50,000 yuan, or the amount of illegal income is more than 20,000 yuan; (2) Illegally handling more than 200,000 cigarettes; (three) more than two times in three years due to illegal tobacco monopoly products by administrative punishment, illegal tobacco monopoly products in the amount of more than 30 thousand yuan. Under any of the following circumstances, it shall be deemed as "the circumstances are particularly serious" as stipulated in Article 225 of the Criminal Law: (1) The amount of illegal business operation is more than 250,000 yuan, or the amount of illegal income is more than 100,000 yuan; (2) Illegally handling more than one million cigarettes. Article 4 If the selling or purchasing price of tobacco monopoly products can be found out illegally, the illegal business amount shall be calculated according to the selling or purchasing price. If the sales or purchase price cannot be ascertained, the illegal business amount shall be calculated according to the following methods: (1) The price of seized cigarettes and cigars, if there is a brand, shall be calculated according to the retail price issued by the provincial tobacco monopoly administration department where the brand cigarettes and cigars are seized; If there is no brand, it shall be calculated according to the average retail price of cigarettes in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized; (two) the price of the seized redried flue-cured tobacco leaves and tobacco leaves shall be calculated according to the average benchmark price of flue-cured tobacco allocation in the previous year issued by the provincial tobacco monopoly administrative department at the place of seizure; (3) The price of cut tobacco shall be calculated at 1.5 times of the price calculation standard specified in item (2); (four) the price of cigarette accessories, if there is a brand, shall be calculated according to the price issued by the provincial tobacco monopoly administration department where the brand accessories are seized; If there is no brand, it shall be calculated according to the average price of such cigarette accessories required by the tobacco industry in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized; (five) the price of illegal production, sale and purchase of special tobacco machinery shall be calculated according to the national guidance price catalogue of special tobacco machinery products issued by the department of tobacco monopoly administration in the State Council; If there is no such special tobacco machinery in the catalogue, it shall be calculated according to the average price of similar special tobacco machinery in the catalogue issued by the tobacco monopoly administrative department at or above the provincial level. Article 5 If an actor commits the crime of illegally producing and selling tobacco monopoly products, which also constitutes the crime of producing and selling fake and inferior products, the crime of infringing intellectual property rights and the crime of illegal business operation, he shall be convicted and punished in accordance with the provisions of heavier punishment. Article 6 Whoever knowingly provides others with loans, funds, account numbers, invoices, certificates and licenses, or provides others with convenient conditions such as production and business premises, equipment, transportation, warehousing, storage, mailing, import and export agency, or provides others with production technology and cigarette formula shall be investigated for criminal responsibility in accordance with the crime of * * *. Article 7 If it is necessary to identify fake and shoddy tobacco monopoly products in handling criminal cases such as illegal production and sale of tobacco monopoly products, it shall be entrusted to the product quality supervision and administration department of the State Council and the tobacco quality inspection institution designated by the product quality supervision and administration department of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government. Article 8 Whoever obstructs tobacco monopoly law enforcement officers from performing their duties according to law by violence or threat, which constitutes a crime, shall be investigated for criminal responsibility for the crime of obstructing official duties. Inciting the masses to violently resist the enforcement of the tobacco monopoly law, which constitutes a crime, shall be investigated for criminal responsibility for the crime of inciting violence to resist law enforcement. Article 9 The term "tobacco monopoly products" as mentioned in this Interpretation refers to cigarettes, cigars, cut tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods, cigarette tows and special machinery for tobacco. The cigarette accessories mentioned in this interpretation refer to cigarette paper, filter rods and cigarette tows. The term "special machinery for tobacco" as mentioned in this interpretation refers to the machinery and equipment that can complete one or more specific processing procedures and operate independently in the Catalogue of Special Machinery for Tobacco published by the Department of Tobacco Monopoly Administration of the State Council, and is used to produce and process cigarettes, cigars, cut tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods and cigarette tows. The special machinery similar to tobacco mentioned in this interpretation refers to the machinery and equipment that can complete the same processing procedures in the production and processing of cigarettes, cigars, shredded tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods and cigarette tows. Article 10 If the relevant provisions previously issued are inconsistent with this interpretation, this interpretation shall prevail.