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Opinions of the State Administration for Industry and Commerce, the Ministry of Public Security, and the Supreme People's Procuratorate on Several Issues Concerning Strengthening Coordination and Cooperation between Administrative Law Enforcement by Industry and Commerce Authorities and Criminal Justice [Effective]
国家工商行政管理总局、公安部、最高人民检察院关于加强工商行政执法与刑事司法衔接配合工作若干问题的意见 [现行有效]
【法宝引证码】

 
Opinions of the State Administration for Industry and Commerce, the Ministry of Public Security, and the Supreme People's Procuratorate on Several Issues Concerning Strengthening Coordination and Cooperation between Administrative Law Enforcement by Industry and Commerce Authorities and Criminal Justice
(No. 227 [2012] of the State Administration for Industry and Commerce)
The administrative bureaus for industry and commerce, public security departments (bureaus), and people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; and the Public Security Bureau and People's Procuratorate of Xinjiang Production and Construction Corps:
In order to further intensify coordination and cooperation among administrative authorities for industry and commerce (hereinafter referred to as “industry and commerce authorities”), public security authorities, and people's procuratorates, strengthen coordination between administrative law enforcement by industry and commerce authorities and criminal justice, effectively form a joint force to crack down on crimes, and jointly maintain the socialist market economic order, for any new circumstance and problem encountered in the coordination and cooperation, the following opinions are put forward in accordance with the Provisions on the Transfer of Suspected Criminal Cases by Administrative Organs for Law Enforcement, the Notice of the General Office of the State Council on Forwarding the Opinions of the Office of the Leading Group of the National Campaign against the Intellectual Property Rights Infringement and the Production and Sale of Counterfeit and Fake or Inferior Commodities and Other Entities on Conducting Well the Coordination and Cooperation between Administrative Law Enforcement and Criminal Justice in the Work of Cracking down on the Intellectual Property Rights Infringement and the Production and Sale of Counterfeit and Fake or Inferior Commodities, and other relevant provisions:
 

国家工商行政管理总局、公安部、最高人民检察院关于加强工商行政执法与刑事司法衔接配合工作若干问题的意见
(工商法字〔2012〕227号)


各省、自治区、直辖市工商行政管理局、公安厅(局)、人民检察院,新疆生产建设兵团公安局、人民检察院:
为进一步强化工商行政管理机关(以下简称工商机关)、公安机关和人民检察院的协作配合,加强工商行政执法与刑事司法衔接,切实形成打击违法犯罪合力,共同维护社会主义市场经济秩序,针对衔接配合工作中的新情况、新问题,根据《行政执法机关移送涉嫌犯罪案件的规定》、《国务院办公厅转发全国打击侵犯知识产权和制售假冒伪劣商品工作领导小组办公室等单位关于做好打击侵犯知识产权和制售假冒伪劣商品工作中行政执法与刑事司法衔接意见的通知》等有关规定,现提出如下意见:
I. Transfer of suspected criminal cases
To transfer a suspected criminal case to a public security authority, an industry and commerce authority shall, in accordance with Article 5 of the Provisions on the Transfer of Suspected Criminal Cases by Administrative Organs for Law Enforcement, designate two or more administrative law enforcement officers to set up a special task force, and transfer the case according to procedures upon examination and approval. The industry and commerce authority shall provide the public security authority with all case materials, including the document on the transfer of a suspected criminal case, the report on the investigation of facts of the case, the list of articles involved, the relevant inspection report or appraisal opinion, and forward the same document on the transfer of a suspected criminal case, report on the investigation of facts of the case, and list of the relevant materials to the people's procuratorate at the same level. The report on the investigation of facts of the case shall specify the illegal facts of actors, legal basis, and opinions of the industry and commerce authority. Where a decision on administrative penalty has been made before the industry and commerce authority transfers the case, the written decision on administrative penalty shall be forwarded to the public security authority and the people's procuratorate at the same level.
For a suspected criminal case that is transferred by an industry and commerce authority, the public security authority shall affix its signature on the receipt of the document on the transfer of a suspected criminal case; where the suspected criminal case is not within its jurisdiction, the public security authority shall transfer it to an authority with jurisdiction within 24 hours, notify the industry and commerce authority in writing within three workdays after transfer, and send a copy to the people's procuratorate at the same level simultaneously. The public security authority shall make a decision on whether to place a case on file within three workdays after accepting the transferred case, notify the industry and commerce authority in writing within three workdays after making the decision, and send a copy to the people's procuratorate at the same level simultaneously; and where the case is not to be placed on file, the public security authority shall state reasons in writing and return case files to the industry and commerce authority, and the industry and commerce authority shall handle the case in accordance with law. Where the public security authority revokes a case after it places it on file, the public security authority shall, within three workdays after making the decision, notify the industry and commerce authority in writing, and send a copy to the people's procuratorate at the same level simultaneously.
   一、关于涉嫌犯罪案件的移送
工商机关向公安机关移送涉嫌犯罪案件,应当按照《行政执法机关移送涉嫌犯罪案件的规定》第五条规定,指定2名或者2名以上行政执法人员组成专案组负责,按程序审批后依法移送。工商机关应当向公安机关提供涉嫌犯罪案件移送书、案件情况调查报告、涉案物品清单、有关检验报告或者鉴定意见等案件的全部材料,并将案件移送书、调查报告及有关材料目录抄送同级人民检察院。案件情况调查报告应当说明行为人的违法事实、法律依据以及工商机关意见等。工商机关移送案件前已经作出行政处罚决定的,应当将行政处罚决定书一并抄送同级公安机关、人民检察院。
对于工商机关移送的涉嫌犯罪案件,公安机关应当在涉嫌犯罪案件移送书回执上签字;其中,不属于本机关管辖的,应当在24小时内转送有管辖权的机关,并在转送后3个工作日内书面告知工商机关,同时抄送同级人民检察院。公安机关应当自接受移送案件之日起3个工作日内作出是否立案的决定,并在作出决定后3个工作日内书面告知工商机关,同时抄送同级人民检察院;其中,不予立案的,应当向工商机关书面说明理由、退回案卷材料,工商机关应当依法作出处理。公安机关立案后又撤销案件的,应当在作出决定后3个工作日内书面告知工商机关,同时抄送同级人民检察院。
II. Handling of an industry and commerce authority's objection to a public security authority's decision on not placing a case on file
Where an industry and commerce authority has any objection to a public security authority's decision on not placing a case on file, the industry and commerce authority may, within three workdays after receiving the notice on not placing a case on file, file a request for reconsideration with the public security authority that made the decision, or propose the people's procuratorate to conduct supervision on case-filing. The public security authority shall, within three workdays after receiving the document of request for reconsideration, make a decision on whether to place a case on file, and notify the industry and commerce authority in writing. Where the industry and commerce authority still raises an objection to the reconsideration decision on not placing a case on file, the industry and commerce authority may, within three workdays after receiving the written notice on reconsideration decision, propose the people's procuratorate to conduct supervision on case-filing. Where the people's procuratorate determines that the public security authority should place a case on file for investigation, the people's procuratorate shall conduct supervision on case-filing in accordance with law.
   二、关于工商机关对公安机关不予立案决定有异议的处理
工商机关对公安机关不予立案决定有异议的,可以自接到不予立案通知之日起3个工作日内,提请作出决定的公安机关复议,也可以建议人民检察院进行立案监督。公安机关应当自收到提请复议的文件之日起3个工作日内作出是否立案的决定,并书面通知工商机关。工商机关对不予立案的复议决定仍有异议的,可以自接到复议决定通知书之日起3个工作日内建议人民检察院进行立案监督。人民检察院认为公安机关应当立案侦查的,依法进行立案监督。
III. Disposal of articles involved
In the process of investigation into illegal acts, an industry and commerce authority must properly keep the evidence relevant to illegal acts that is collected by it. For a case that the public security authority decides to place on file, the industry and commerce authority shall, within three days after receiving the written notice on case-filing, transfer the articles involved and other materials related to the case, and go through hand-over formalities. For an article that the industry and commerce authority has decided to confiscate, the public security authority may adopt such methods as drawing a sample, taking a photograph and recording a tape, and complete the drawing and fixing of evidence in a timely and comprehensive manner within three workdays, and the confiscated article shall be disposed of by the industry and commerce authority. For an article for which the industry and commerce authority has not made a decision on confiscation, but such administrative compulsory measures as sealing-up and seizure have been adopted, the public security authority and the industry and commerce authority shall strengthen cooperation and ensure that hand-over formalities are handled before the expiration of terms of sealing-up, seizure, and freezing. For an article that is easy to rot or cannot be properly kept, the public security authority may, in light of actual circumstances, authorize the relevant department to sell off or auction it after taking a photograph or recording a tape, the proceeds derived therefrom shall be temporarily kept and be handled after the case is closed; for articles that are in large amount and not convenient to carry, evidence may be fixed by means of drawing samples, taking photographs, or recording tapes, and original articles may by kept not along with files, and the public security authority shall transfer them to the competent department for handling or destruction in accordance with the relevant state provisions.
......
   三、关于涉案物品的处置
工商机关在查处违法行为过程中,必须妥善保存所收集的与违法行为有关的证据。对于公安机关决定立案的案件,工商机关应当自接到立案通知书之日起3日内将涉案物品以及与案件有关的其他材料移交公安机关,并办结交接手续。其中,对于工商机关已经作出没收决定的物品,公安机关可以采取提取样品、拍照录像等方式,在3个工作日内及时、全面提取、固定证据完毕,没收物品由工商机关依法处理。对于工商机关尚未作出没收决定,但已采取查封、扣押等行政强制措施的物品,公安、工商机关应当加强协作,确保在查封、扣押、冻结期限届满前办结交接手续。公安机关对容易腐烂变质及其他不易保管的物品,可以根据具体情况,在拍照或者录像后委托有关部门变卖、拍卖,所得价款暂予保存,待结案后一并处理;对于大宗的、不便搬运的物品,可采取提取样品、拍照录像等方式固定证据,原物不随卷保存,由公安机关按照国家有关规定分别移送主管部门处理或者销毁。
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