Perspective | A New Chapter in Flexible Law Enforcement—Interpreting the Market Supervision List of "First Offense Non-Penalty, Minor Offense Exemption"
Published:
2025-03-26
As a professional intellectual property lawyer, I have frequently received consultations from clients regarding professional fake fighters in the past two years. Common tactics employed by professional fake fighters include packaging flaws, labeling flaws, and food business license flaws. They often use industrial and commercial complaints and rights protection lawsuits to give themselves a legal guise, but in reality, they are taking advantage of the situation for profit. One of my clients, a bread costing less than 5 yuan, was reported to the Market Supervision Administration by a professional fake fighter because the ingredient list on the label indicated "pre-mixed powder" without further specifying the composition of the "pre-mixed powder," resulting in a compensation claim of over 26,000 yuan. Numerous such cases seriously affect business operations and put considerable pressure on the daily law enforcement of market supervision departments. In recent years, such "anti-counterfeiting" activities by professional fake fighters have gradually spread to rural areas, with such cases being filed against small shops targeting elderly people left behind in the countryside, with some market supervision offices handling 30 to 40 cases a day. On February 7 this year, the State Administration for Market Regulation issued the "Notice on the List of First-Time Unpunished and Minor-Offense Exempted Administrative Violations in Market Regulation." After the implementation of the new regulations, investigations revealed that due to the loss of some profit-making conditions, the number of "anti-counterfeiting" complaints targeting small shops in rural areas within Jiaozhou City, Shandong Province, has sharply decreased. I believe the national policy came at a very timely moment. A brief review and analysis of this Notice is provided below.
Preface
As a professional intellectual property lawyer, I have frequently received consultations from clients regarding professional fake fighters in the past two years. The common methods used by professional fake fighters include packaging defects, label defects, and food business license defects. They often use methods such as industrial and commercial complaints and rights protection lawsuits to disguise themselves as legitimate, but in reality, they are taking advantage of the situation to profit. One of my clients' bread, priced at less than 5 yuan, was complained to the market supervision and administration bureau by a professional fake fighter because the ingredient list on the label indicated "pre-mixed powder" without further indicating the composition of the "pre-mixed powder", and was asked to pay more than 26,000 yuan. Such examples abound, seriously affecting the business development of enterprises and bringing great pressure to the daily law enforcement of market supervision departments. In recent years, such "fake fighting" behavior by professional fake fighters has gradually spread to rural areas. For example, in small shops targeting left-behind elderly people, some market supervision offices have to handle 30 to 40 such fake fighting cases every day. On February 7 this year, the State Administration for Market Regulation issued the "Notice on the List of First-Time Non-Punishment and Minor Exemption from Punishment for Market Supervision Administrative Violations". After the implementation of the new regulations, it was found through investigation that due to the loss of some profit conditions, the number of "fake fighting" complaints targeting rural small shops in Jiaozhou City, Shandong Province, has sharply decreased. In this regard, I feel that the introduction of national policies is very timely. Now, I will briefly review and analyze the Notice.
Recently, the State Administration for Market Regulation issued the "Notice on the List of First-Time Non-Punishment and Minor Exemption from Punishment for Market Supervision Administrative Violations", and attached two specific lists, namely the "List of First-Time Non-Punishment for Market Supervision Administrative Violations (I)" and the "List of Minor Administrative Violations Not Subject to Punishment for Market Supervision (I)". The introduction of this policy marks an important step forward for China's market supervision field in optimizing law enforcement methods and improving law enforcement efficiency. This article will analyze it from the aspects of policy background, main content, significance, and potential challenges.
I. Policy Background
In recent years, the law enforcement efforts in China's market supervision field have been continuously strengthened, but some problems have also been exposed in practice, such as "one-size-fits-all" law enforcement and excessive penalties, which have brought great pressure to market entities, especially small and micro enterprises. In order to implement the spirit of "delegating power, streamlining administration, and improving services" reform and optimize the business environment, the State Administration for Market Regulation, in accordance with the relevant provisions of Article 33 of the "Administrative Penalty Law of the People's Republic of China", formulated the "first-time non-punishment and minor exemption from punishment" policy. This policy aims to guide market entities to consciously abide by the law through flexible law enforcement, while reducing the burden on enterprises and stimulating market vitality.
II. Main Content
1. First-Time Non-Punishment List
The first-time non-punishment list mainly targets first-time violations with minor harmful consequences that are promptly corrected. The list lists 8 types of violations, including engaging in loose food operations without obtaining a food business license, the expiration of the validity period of a food business license without renewal, and the operation of food that has exceeded its shelf life. Applicable conditions include (must be met simultaneously):
(1) First-time violation;
(2) No food safety accidents occurred;
(3) Prompt correction or correction during the period of order for correction.
2. Minor Exemption from Punishment List
The minor exemption from punishment list applies to situations where the violation is minor, no harmful consequences have occurred, and it has been promptly corrected. The list lists 4 types of violations, including operating edible agricultural products that do not meet food safety standards and operating pre-packaged foods with non-compliant labels. Applicable conditions include (must be met simultaneously):
(1) Not subjectively intentional;
(2) Can truthfully explain the source of goods;
(3) No food safety accidents occurred;
(4) Prompt correction or correction during the period of order for correction.
3. Applicability Restrictions
Both lists clearly state that the following situations are not applicable to the exemption from punishment policy:
(1) Serious circumstances or causing serious harmful consequences;
(2) Schools, preschool institutions, elderly care institutions, and other centralized dining units and their catering units;
(3) Multiple occurrences of the same type of violation within two years.
III. Policy Significance
1. Optimize the business environment and reduce the burden on enterprises
The "first-time non-punishment and minor exemption from punishment" policy avoids "one-size-fits-all" penalties through flexible law enforcement, reduces the operating pressure on enterprises, especially small and micro enterprises, helps stimulate market vitality, and promotes healthy economic development.
2. Guide market entities to consciously abide by the law
The policy emphasizes the importance of "prompt correction", encourages market entities to actively correct illegal behaviors, reflects the law enforcement concept of "education first, punishment second", and helps improve the law-abiding awareness of market entities.
3. Improve law enforcement efficiency and promote fairness and justice
By clarifying the conditions and scope of exemption from punishment, the policy provides clear operational guidance for law enforcement personnel, helps reduce the arbitrariness of law enforcement, and improves the fairness and transparency of law enforcement.
4. Promote the refinement of food safety supervision
The policy focuses on the field of food safety, and formulates specific exemption from punishment conditions for common violations, reflecting the refinement and humanization of supervision, and helps improve the level of food safety governance.
IV. Potential Challenges
1. Difficulty in grasping the law enforcement scale
The policy requires law enforcement personnel to judge whether to apply the exemption from punishment based on the specific circumstances, which puts high demands on the professional ability and judgment of law enforcement personnel, and may lead to inconsistencies in the law enforcement scale.
2. Risk of abuse of the exemption from punishment policy
Some market entities may take advantage of the exemption from punishment policy to intentionally commit minor violations to avoid punishment. This requires regulatory departments to strengthen mid-term and post-event supervision to prevent the abuse of the policy.
3. Public misunderstanding of the exemption from punishment policy
The public may mistakenly believe that the exemption from punishment policy is condoning illegal behavior. This requires strengthening policy publicity to guide the public to correctly understand the original intention and significance of the policy.
V. Suggestions
1. Improve supporting mechanisms
Develop detailed enforcement operation guidelines, clarifying the applicable standards and procedures for the penalty exemption policy to ensure consistent enforcement standards.
2. Strengthen in-process and post-process supervision
Strengthen subsequent supervision of market entities that apply for the penalty exemption policy to ensure that they promptly correct illegal behaviors and prevent further violations.
3. Increase policy publicity efforts
Promote policy content through various channels to guide market entities and the public to correctly understand the policy and create a good social atmosphere.
4. Establish a credit supervision mechanism
Include penalty exemption information in corporate credit records. For market entities that repeatedly violate laws or regulations or have serious violations, deal with them strictly in accordance with the law, forming a supervision mechanism of "rewarding integrity and punishing dishonesty".
VI. Conclusion
The introduction of the "first-offense non-penalty, minor-offense exemption" policy by the State Administration for Market Regulation is an important measure to optimize market supervision and law enforcement methods, reflecting the regulatory concept of "inclusive and prudent." Through flexible law enforcement, the policy not only reduces the burden on enterprises but also guides market entities to consciously abide by the law, contributing to the construction of a fairer, more transparent, and more efficient business environment. However, the effective implementation of the policy still requires the improvement of supporting mechanisms and the strengthening of regulatory efforts. In the future, with the in-depth promotion of the policy, China's market supervision field will surely move towards a more refined and humane new stage.
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