The legal basis for punishing the unauthorized use of property that has been seized or registered for preservation
In law enforcement and handling of cases, the industrial and commercial administration authorities may, in accordance with laws and regulations, take compulsory measures such as seizure and seizure ; When evidence may be lost or difficult to obtain in the future, advance registration and preservation measures may be taken for evidence related to suspected illegal acts. Paragraph 1 of Article 39 of the "Regulations on Administrative Punishment Procedures of Industrial and Commercial Administrative Agencies" stipulates: Seized or detained property must be properly kept and is strictly prohibited from being used, exchanged or damaged. Paragraph 3 of this article stipulates: Seized items shall be affixed with the seal of the industrial and commercial administration authority, and no one may use them at will. Paragraph 2 of Article 33 of the Regulations stipulates: During the period of advance registration and preservation, the parties or relevant persons shall not damage, destroy or transfer evidence. However, judging from the practice of grassroots law enforcement and case handling, this kind of situation is often encountered: a gas station was suspected of trademark infringement, and the gas pump was seized by industrial and commercial law enforcement officers in accordance with the law. However, the gas station subsequently opened the seal without authorization, tore off the seal and refueled as usual. How should this situation be handled? The "Regulations on Administrative Punishment Procedures of Industrial and Commercial Administration Agencies" does not clearly provide for this.
At present, there are 8 laws and regulations in my country that give the industrial and commercial administrative organs the power to seal up and detain, and 2 laws and regulations involve advance registration and preservation or similar situations. Among the 10 laws and regulations, some have made clear provisions on the handling of unauthorized use of sealed or pre-registered property, while others have not made specific provisions. The author believes that in the practice of handling cases, different situations should be handled in accordance with relevant laws and regulations. They are explained below.
"Product Quality Law": There are powers of seizure and detainment, and there are penalties
Article 18 of the "Product Quality Law" stipulates that product quality supervision departments at or above the county level have obtained When investigating and punishing suspected violations of this Law, the following authorities may be exercised: (4) To investigate and deal with any suspected violations of the law: (4) To investigate and deal with any violations that are well-founded and believed to be incompatible with national and industry standards that protect human health and personal and property safety. Products or products with other serious quality problems, as well as raw and auxiliary materials, packaging, and production tools directly used in the production and sale of the product, shall be sealed or detained.
In accordance with the scope of duties prescribed by the State Council, the industrial and commercial administrative departments at or above the county level may exercise the powers specified in the preceding paragraph when investigating and handling suspected violations of this Law.
Article 63 of the Law stipulates: Anyone who conceals, transfers, sells off or destroys items that have been sealed or detained by the product quality supervision department or the industrial and commercial administration department shall dispose of the concealed, transferred, sold or damaged items. A fine of not less than three times the value of the goods shall be imposed; if there are any illegal gains, the illegal gains shall also be confiscated.
"Measures for Investigating, Punishing and Banning Unlicensed Business Operations": There are powers of sealing and detaining, and there are penalties
Article 9 of the "Measures for Investigating, Punishing and Banning Unlicensed Business Operations" stipulates that the industrial and commercial administration at or above the county level When the management department investigates and shuts down suspected unlicensed business operations, it may exercise the following powers: (4) Inspect, copy, seal up, and seize contracts, bills, account books, and other materials related to unlicensed business operations; (5) Seize , Seizing tools, equipment, raw materials, products (commodities) and other property specifically used for unlicensed business activities, (6) Seizing evidence that endangers human health, presents major safety hazards, threatens public safety, and damages environmental resources unlicensed business premises.
Article 16 of the Measures stipulates: If a party uses, exchanges, transfers, or damages the sealed or impounded property without authorization, the industrial and commercial administration department shall order it to make corrections and dispose of the value of the property used, exchanged, transferred, or damaged. A fine of not less than 5% but not more than 20% shall be imposed; those who refuse to make corrections shall be fined not less than 1 time but not more than 3 times the value of the property used, exchanged, transferred or damaged.
"Regulations on the Prohibition of Pyramid Selling": There are powers of seizure and seizure, and there are penalties
Article 14 of Chapter 3 of the "Regulations on the Prohibition of Pyramid Selling" stipulates that the industrial and commercial administrative departments at or above the county level When investigating suspected pyramid schemes, the following measures may be taken: (4) Check, copy, seal up and detain relevant contracts, bills, account books and other materials suspected of pyramid schemes, (5) Seize and detain products suspected of being used specifically for pyramid schemes (commodities), tools, equipment, raw materials and other property, (6) Seal business premises suspected of pyramid schemes.
Article 27 of Chapter 4 of the Regulations stipulates: If a party uses, exchanges, transfers or damages the sealed or impounded property without authorization, the industrial and commercial administration department shall order him to stop the illegal act and punish the party who uses, exchanges or uses it. , transfer or damage to property, a fine of not less than 5% and not more than 20% of the value of the property; if the person refuses to make corrections, he or she shall be fined not less than 1 time but not more than 3 times of the value of the property used, exchanged, transferred or damaged.
"Anti-Unfair Competition Law": There is no right to seal or detain, but it can be ordered not to transfer, conceal, destroy evidence or register and preserve it in advance. There are penalties
"Anti-Unfair Competition" Article 17 of the Law stipulates that when supervising and inspecting acts of unfair competition, the supervision and inspection departments have the right to exercise the following powers: (3) Inspect property related to acts of unfair competition stipulated in Article 5 of this Law, and when necessary The operator under inspection may be ordered to explain the source and quantity of the goods, suspend sales pending inspection, and shall not transfer, conceal, or destroy property.
Article 28 of the "Anti-Unfair Competition Law" stipulates that if an operator violates the order to suspend sales and is not allowed to transfer, conceal, or destroy property related to unfair competition, supervision and inspection The department may impose a fine of not less than 1 time but not more than 3 times the price of the property sold, transferred, concealed, or destroyed based on the circumstances.
"Trademark Law" and "Regulations on the Protection of Olympic Symbols": There is the right to seize and detain, no penalties
"Trademark Law" Chapter 7 Protection of the Exclusive Rights of Registered Trademarks Fifth Article 15 stipulates that when the industrial and commercial administrative departments at or above the county level investigate and deal with suspected infringement of other people's registered trademark rights based on obtained evidence or reports of suspected violations, they may exercise the following powers: ... (4) Inspection and infringement activities Relevant items; items that are proven to infringe the exclusive rights of others’ registered trademarks may be sealed or detained.
Article 11 of the "Regulations on the Protection of Olympic Symbols" stipulates that the industrial and commercial administration departments have the right to investigate and deal with any infringement of the exclusive rights of the Olympic Symbols in accordance with the law.
When the industrial and commercial administrative department investigates and handles suspected infringement of the exclusive rights of the Olympic logo based on the obtained evidence or reports of suspected violations, it may exercise the following powers: ... (4) Inspection related to infringement activities items; items with evidence proving infringement of the exclusive rights of the Olympic symbols shall be sealed or detained. When the administrative department for industry and commerce exercises its powers specified in the preceding paragraph in accordance with the law, the parties concerned shall provide assistance and cooperation and shall not refuse or obstruct it.
The "Trademark Law", "Olympic Symbol Protection Regulations" and "Trademark Law Implementation Regulations" do not provide clear penalties for parties who use, exchange, transfer or damage sealed or impounded property without authorization.
"Special Provisions of the State Council on Strengthening the Supervision and Administration of Safety of Food and Other Products": With the right to seal and detain, no penalties
"Special Provisions of the State Council on Strengthening the Supervision and Administration of Safety of Food and Other Products" Article 15 of the Regulations stipulates that agricultural, health, quality inspection, commerce, industry and commerce, pharmaceutical and other supervisory and administrative departments perform their respective product safety supervision and management responsibilities and have the following powers: ... (2) Inspect, copy, seal up and detain relevant contracts , bills, account books and other relevant information, (3) Seizing and detaining products that do not meet legal requirements, illegally used raw materials, auxiliary materials, additives, agricultural inputs, and tools and equipment used for illegal production, (4) Seizing harmful products Production and operation sites with major potential risks to human health and life safety.
However, there will be no penalties for parties who use, replace, transfer or damage the seized or impounded property without authorization.
"Direct Selling Management Regulations": There is the right to seize and detain, but no penalties
Article 35 of Chapter 6 Supervision and Management of the "Direct Selling Management Regulations" stipulates that the industrial and commercial administrative department Responsible for the daily supervision and management of direct selling companies, direct sellers and their direct selling activities. The industrial and commercial administrative department may take the following measures to conduct on-site inspections: (4) Check, copy, seal up, and detain materials and illegal property related to direct selling activities of relevant enterprises.
Similarly, the regulations do not impose penalties on parties who use, exchange, transfer, or damage seized or impounded property without authorization.
"Regulations on the Management of Business Places for Internet Access Services": There is the right to seal up and detain, but no penalties
Violation of Article 27 of the "Regulations on the Management of Business Sites for Internet Access Services" According to the provisions of these regulations, anyone who establishes an Internet access service business premises without authorization, or engages in Internet access service business activities without authorization, shall be banned by the industrial and commercial administrative department or jointly with the public security organs by the industrial and commercial administrative department in accordance with the law, and the place where he or she engages in illegal business activities shall be sealed. Seize special tools and equipment used for illegal business activities...
There are no penalties in this regulation for parties who tear off seals without authorization.
To sum up, the author believes that for the first four situations, laws and regulations have express provisions and should be followed; for the latter four situations and prior registration and preservation, the parties or relevant persons use it without authorization and are seized. or property that has been registered and preserved in advance and there are no penalties stipulated in relevant laws and regulations, it can be handed over to the public security organs, which will handle it in accordance with the "Public Security Management Punishment Law". This law stipulates that anyone who commits any of the following acts shall be detained for not less than five days but not more than ten days, and shall be fined not less than 200 yuan but not more than 500 yuan: (1) Concealing, transferring, selling off, or destroying items that have been seized, sealed, or frozen by administrative law enforcement agencies in accordance with the law. of property.
It can also be seen from here that the "Regulations on Administrative Punishment Procedures of Industrial and Commercial Administration Agencies" is still lacking in this regard. It is recommended to add the following content in the next revision: Anyone who uses property that has been seized or registered and preserved without authorization shall be punished in accordance with relevant laws and regulations. It would be best to make unified provisions on such issues when formulating the Administrative Enforcement Law. □Shen Desheng Tuesday, October 21, 2008 "China Business News