Verification by the market regulation department,There is currently no statutory concept or definition。The author tries to "define" verification：Verification is the case clues and other materials obtained by the market supervision department，Use administrative investigation methods to verify it，An administrative investigation act that provides a basis for making a decision on whether or not to file a case。
The author's legal basis for verification、Evidentiary Weight、essentials、Precautions and so on，For the reference of all colleagues。
The legal basis for the market regulation departments to carry out verifications
Interim Provisions on Administrative Punishment Procedures for Market Regulation (Decree No. 2 of the State Administration for Market Regulation).，hereinafter referred to as Order No. 2) Article 17："The market supervision and administration departments shall make any complaints on the basis of their supervision and inspection authority or through complaints、report、Transferred from other departments、Clues of illegal acts discovered through channels such as assignments by superiors，Verification shall be given within 15 working days of discovering leads or receiving materials，The responsible person for the market regulation department is to decide whether to file a case；Special circumstances，Approved by the person in charge of the market supervision and administration department，It can be extended by fifteen working days。law、statute、Except as otherwise provided in the Regulations"。
Evidentiary validity of verification
2Paragraph 2 of Article 20 of the Decree stipulates："Evidentiary materials lawfully obtained in the course of verification or supervision and inspection before filing a case，It can be used as evidence in a case。”
Another use of the word "supervision and inspection" in Order No. 2 is in Article 17："The market supervision and administration departments shall make any complaints on the basis of their supervision and inspection authority or through complaints、report、Transferred by other departments..."。
Taken together, these two "supervision and inspections" make it very clear，2The "supervision and inspection" of the order is a type of administrative investigation carried out by the market regulation department ex officio，2The supervision and inspection described in the order refers to all kinds of special inspections before the case is filed、Double random, etc，And in terms of time，Administrative investigations are limited to a specific period of time prior to verification。
We are familiar with the use of evidence obtained from the investigation after the case is filed as evidence in the case，Then, the second paragraph of Article 20 of Order No. 2 describes "the evidence materials obtained in accordance with the law in the course of verification or supervision and inspection before the case is filed" and the third paragraph of the same article describes "for the transferred case，Evidence collected by the transferring organ in accordance with its ex officio investigation"，All of them are special circumstances that can be clearly used as evidence in the case。
The author thinks，During the verification phase and the supervision and inspection process ex officio before the verification，Investigative acts of collecting evidence in accordance with law，As long as it falls within the types of evidence listed in Article 33 of the Administrative Litigation Law of the People's Republic of China，can be used as evidence in the case。
There are three key points that should be focused on in the verification
(1) Strictly grasp the time limit requirements for verification
In accordance with Article 17 of Order No. 2：“… Verification shall be given within 15 working days of discovering leads or receiving materials，The responsible person for the market regulation department is to decide whether to file a case；Special circumstances，Approved by the person in charge of the market supervision and administration department，It can be extended by fifteen working days。law、statute、Except as otherwise provided by the Regulations。”
First of all，The time limit for verification is 15+15 working days，and not a natural day。In accordance with Article 72 of Order No. 2：Period、day、Monthly calculations，The hour or day on which the period begins is not counted。The period does not include transit time。The last day of the expiration of the period is a statutory holiday，The expiration date of the period shall be the first day after the statutory holiday。”
It's obvious，The day on which clues are discovered or materials are received are not counted in the calculation of the time limit，And every five working days, there is a non-working day on Saturday and Sunday，So even if other statutory holidays are not taken into account，Then if it is approved by the person in charge within 15+15 working days，The maximum duration of verification is 42 calendar days，Law enforcement officials should make full use of the nearly one-and-a-half-month period to carry out the verification in accordance with the law。
And that's not all，In exceptional cases, it may be extended for nearly a month and a half。
2Paragraph 2 of Article 17 of the Decree stipulates："Detection、Inspection、quarantine、Time required for identification, etc，It is not included in the period provided for in the preceding paragraph。That is, to find clues or to receive materials，If testing is involved、Inspection、quarantine、Identified，The time required is not counted as 15+15 working days for verification。In the course of the actual investigation of the case，If you encounter the above, you need to be tested、Inspection、quarantine、Circumstances in which the evaluation results determine whether or not to file a case，Law enforcement officers can confidently get the relevant tests at the verification stage、Inspection、quarantine、Identification results，You don't have to wait until after the case is filed。
For example：Article 55 of the Regulations for the Implementation of the Drug Administration Law of the People's Republic of China stipulates："The drug regulatory department shall seize drugs and related evidence materials that have evidence to prove that they may endanger human health in accordance with the law、seizure of administrative coercive measures，A decision on whether or not to file a case shall be made within 7 days of the date on which the administrative compulsory measures are employed;It needs to be inspected，A decision on whether to file a case shall be made within 15 days from the date of issuance of the inspection report;The requirements for filing a case are not met，Administrative coercive measures shall be lifted;Need to suspend sale and use，It shall be determined by the State Council or the province、Autonomous regions、The drug regulatory department of the people's government of the municipality directly under the Central Government shall make a decision。"It can be seen，The Regulations for the Implementation of the Drug Administration Law of the People's Republic of China are consistent with Order No. 2 on the extension of the verification period。therefore，Law enforcement officials can make the most of the inspection during the verification phase、Inspection、quarantine、Matters to be identified，On the one hand, this will allow more time for investigation after the case is filed，On the other hand, it can also be detected at the verification stage、Inspection、quarantine、The appraisal conclusion excludes situations where it may not be necessary to file a case。
secondly，2Article 17 of the Decree stipulates that the "market supervision department"，and not the undertaker。The market regulation department discovers clues or receives materials，All in the name of law enforcement agencies，and not an in-house organization。The starting point is the receipt of the materials by the internal body responsible for the verification work，Although it does seem to be in line with the actual operation，But the documents of the internal institutions、The circulation of materials is external in the name of the organ where the internal institution is located。Regardless of the clues found by any of the internal agencies or received the materials，All of them are based on the market supervision department, which is the main body of law，If the registration time here is based on the internal organization，Then the time of any approval or circulation link will not be controlled，2The 15+15 time limit set by the decree will also be meaningless。
Therefore, the maximum time limit of the above 15+15 working days is nearly one and a half months，In fact, the time required for the circulation of internal institutions is also fully considered。Although Article 17 of Order No. 2 is only a provision，Within 15+15 working days of discovering clues or receiving materials, decide whether to file a case，But in accordance with the principle of administrative efficiency，The departments for market regulation shall discover leads or receive materials after they discover them，Verify the leads with the approval of the person in charge of the undertaking agency as soon as possible。The time period for verification，It is from the organ that a clue is found or a material is received，Decide whether to file a case for approval。Even if the agency that undertook the verification did not start the verification immediately，or have not received relevant leads from other agencies of the agency，The calculation of the time limit has also begun。
third，In accordance with the provisions of Article 17 of Order No. 2，Inspections carried out by the market regulation departments on the basis of their oversight and inspection authority，Various special examinations including double randomization，It is possible to find clues to the violation，It is also possible that no clues to the violation were found，This supervision and inspection is not a verification。After discovering clues of violation during the supervision and inspection，At this point, the verification process should be initiated，The verification period begins to run。For complaints made through them、report、Transferred by other departments、Clues of illegal acts discovered through channels such as assignments by superiors，From the date of receipt of the material，The verification period began to be calculated。
In summary，In the author's opinion, the time point for the registration of leads should be the time when the market supervision and administration authorities discover the clues or receive the materials，It is not the time when the internal agency receives clues or materials from other institutions。
(ii) Accurately grasp the boundaries and objectives of verification
Article 18 of the Provisions on Administrative Punishment Procedures for Administrative Organs for Industry and Commerce (Order No. 28 of the former State Administration for Industry and Commerce) stipulates that the former State Administration for Industry and Commerce provides："A case filing approval form shall be filled out，At the same time, the relevant materials (complaint materials) are attached、Appeal materials、Whistleblowing Materials、Materials assigned by higher-level organs or transferred by relevant departments、Materials provided by the parties、Supervision and inspection report、Verified evidence obtained, etc.)，It shall be approved by the person in charge of the administrative organ for industry and commerce at or above the county level，The responsible person for the case-handling body designates two or more case-handling personnel to be responsible for the investigation and handling。”
This article is a requirement for the filing of a case，File a case on the type of clues found in the supervision and inspection，In addition to supervising and inspecting the evidentiary materials obtained，It is also necessary to submit a "supervision and inspection report" at the same time。
This also confirms that supervision and inspection are only to find clues to illegal acts，This inspection report is an analysis of the supervision and inspection process and the evidence obtained，The report itself is a verification process in which clues to violations are found from supervision and inspection。
Article 17 of the current Order No. 2 clearly regards the supervision and inspection before filing a case as a means and way to discover clues about illegal acts (the relevant materials are not clearly listed).，Supervision and inspection reports are no longer required)，Separate from verification。
The State Administration for Market Regulation's law enforcement opinions and the establishment of grassroots institutions，are promoting the sinking of law enforcement forces。In some places, it is a bureau-team model，That is, the business department is responsible for daily supervision、Law enforcement inspection agencies are responsible for law enforcement and case handling。But it doesn't matter which mode you use，Regulation and enforcement are still relatively separate。
In addition, the full participation in supervision and inspection of "double random" spot checks，In practice, it is not uncommon for supervision and inspection to discover clues on illegal acts and handle cases by two different internal organs of the same organ。Centralized law enforcement reforms have even been carried out in individual regions，Unified establishment of administrative law enforcement bureaus，In addition, there is a phenomenon in which two different organs exercise daily supervision and law enforcement and case handling，It is also in line with the above-mentioned supervision, inspection and verification。
The State Bureau's "Model Format of Administrative Punishment Documents for Market Supervision and Administration" provides for the use of the guidelines："The time of registration is when the case-handling agency discovers clues about illegal acts or receives complaints、After reporting the material，The time when the registrant registered。”
The author thinks，This provision does not fully take into account the need to carry out supervision and inspections ex officio and discover clues of illegal acts，Conduct supervision inspections and carry out verifications、The cases handled belong to different agencies、and even the situation of different organs，Complaints were also not considered、After reporting the material，The circulation of materials within the market supervision and management authority。
The author thinks，The purpose of verification is not to ascertain all the facts and truths，It is only carried out around the goal of whether the clues of illegal acts need to be filed。Whether or not to file a case is only a normative requirement for procedures within the administrative organ，Separate the verification before the case is opened from the subsequent investigation，It will not have an actual impact on the rights and obligations of the parties。
(3) Carefully grasp the results of the verification to decide whether to file a case
For now，Case filing by the market regulation department，There is no uniform standard for the time being。Here the author tries to give the "case filing criteria"，Judging by the results of the verification：1、There are clear suspects of violating the law；2、The suspected illegal acts are the functions of the market regulation department；3、This organ has jurisdiction over the case；4、Penalties of warning or more are required；5、No other competent organ has filed a case before this organ；6、within the statutory statute of limitations；7、It does not fall under the circumstances of "a person under the age of 14 who has committed an illegal act" or "a mentally ill person who has committed an illegal act when he is unable to recognize or control his own behavior" as provided for in the Administrative Punishment Law；8、It does not comply with the summary procedure for administrative punishment。
Then the verification stage is not only to focus on the illegality of the clue itself、Outside the visit，It should also be known whether the counterparty is under investigation by other authorities, including the market regulation department，In order to exclude the "same illegal act against a party" as provided for in Article 11 of Order No. 2，Two or more departments for market regulation have jurisdiction，The market supervision and administration department that files the case first has jurisdiction"，and situations where violations can be investigated and dealt with by different law enforcement agencies。
meantime，For some special cases，It should also be inquired through the enterprise credit publicity system，or ask whether the counterpart has been punished for similar violations before。For example：The use of advertisements for false advertising，Received two or more administrative punishments，and using advertisements to make false publicity，The clues of the case should be directly transferred to the judicial organs，Criminal investigation against it。
The author thinks，The market supervision and administration department is in the verification process of up to 15+15 working days，If it is determined that the above "case filing criteria" are met or not met，The verification should be concluded immediately，Submit for approval to decide whether to file a case，Advance administrative handling procedures in accordance with law。
Other matters that need to be noted in the verification
In addition to the above points，The author believes that law enforcement personnel should also pay attention to the following points in the verification：
(1) Notice
For receiving leads、Administrative processes such as whether to file a case and deal with the outcome，2The order does not provide for a corresponding response、Reply and inform，However, there are provisions in the laws, regulations, or rules for specific enforcement，Corresponding notices or replies shall be made in a timely manner in accordance with its provisions。For example, Article 53 of the Advertising Law of the People's Republic of China…Complaints received、The reporting department shall work within 7 working days from the date of receipt of the complaint，Complaints will be dealt with and notified、Whistleblowers。"If the local regulations or the higher municipal supervision department、The normative documents of this organ provide for the corresponding notification，The person or unit from which the lead originated shall also be informed in accordance with their requirements。recently，The SAMR's Measures for the Handling of Complaints and Reports on Market Supervision and Administration (Draft for Comments) adds relevant notification obligations for complaints and reports，We are waiting for the final solution。
(2) Protect the rights of parties in accordance with law
2Paragraph 2 of Article 18 of the Decree stipulates："For the first time, it was collected from the parties、Collecting evidence，They should be informed of their right to be heard、The right to be heard and the right to apply for recusal。"Law enforcement officials cannot mechanically assume that these obligations to inform them have been fulfilled only after a case has been filed，If the investigation at the verification stage involves collection、The object of the collection of evidence is the party suspected of violating the law，Law enforcement officials must also inform them of their right to be heard、The right to be heard and the right to apply for recusal，to protect the rights of the parties，Ensure the validity of the evidence obtained through verification and the legality of the procedures of the entire case。
(3) Disposition of leads that are not to be filed
After the market regulation departments make a decision to file or not to file a case when illegal conduct is discovered or leads are received，This concludes the verification process。But，Law enforcement officers need to be reminded of this:，The conclusion of the verification process does not mean that the administrative processing of the lead is completely completed，After the decision on whether to file a case, it may also involve the transfer of relevant leads。This is especially the case where a decision not to file a case is made，The organ undertaking the case may also need to transfer leads that are not filed in accordance with law，to facilitate administrative processing procedures。
2There is no provision in the order for the follow-up disposition of leads after a decision is made not to file a case，But in Article X、Article 13、Article 16 separately provides for the transfer of cases，In practice, if a decision is made not to file a case after verification，For leads that have not entered the investigation process，Law enforcement personnel should also follow the provisions of specific laws, regulations, and rules to transfer leads on suspected violations，At the same time, inform the source of the leads or the unit in accordance with laws and regulations。
source：Reprinted with permission from the author
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