1994.10.01
SHANGHAI MUNICIPALITY
REGULATIONS OF SHANGHAI MUNICIPALITY ON THE SUPERVISION OVER PRODUCT
QUALITY (1998)
(Adopted at the 12th Session of the Standing Committee of the Tenth
Shanghai Municipal People's Congress on August 26, 1994. Amended in
accordance with the Decision Regarding the Revision of the Regulations
of Shanghai Municipality on the Supervision over Product Quality
of the 3rd Session of the Standing Committee of the 11th Shanghai Municipal
People's Congress on June 24, 1998)
CONTENTS
CHAPTER I GENERAL PROVISIONS
CHAPTER II ADMINISTRATIVE SUPERVISION
CHAPTER III RESPONSIBILITY AND OBLIGATION OF THE PRODUCER
AND THE SELLER
CHAPTER IV SOCIAL SUPERVISION
CHAPTER V LEGAL LIABILITY
CHAPTER VI SUPPLEMENTARY PROVISIONS
CHAPTER I GENERAL PROVISIONS
Article 1
With a view to strengthening the supervision and control of
product quality, defining the product quality liability, protecting the
legitimate rights and interests of users and consumers, and maintaining
the social and economic orders, these Regulations are formulated in
accordance with the stipulations of the Product Quality Law of the
People's Republic of China (hereinafter referred to as Product Quality
Law) and other laws and regulations, and in the light of
the actual circumstances of this Municipality.
Article 2
Anyone engaged in the production and sale of products in this
city must abide by these Regulations.
"Products" referred to in these Regulations means those products
processed or manufactured for the purpose of sale.
These Regulations shall not be applicable to construction
projects.
Article 3
The Shanghai Municipal Technical Supervision Bureau (hereinafter referred
to as Municipal Technical Supervision Bureau) is the competent
administrative authority of the supervision and control of
product quality of this Municipality, responsible for the organization
and coordination of the product quality supervision in the whole
Municipality.
Departments of technical supervision and control at district
and county levels shall, according to the division of founctions
and duties, do well in exercising supervision and control
over product quality under the guidance of the Municipal Technical
Supervision Bureau.
Administrative departments of industry and commerce, commodity
inspection and public health shall do well in exercising supervision
over product quality within their respective functions and
duties.
Competent authorities of various trades shall be in charge of the
product quality control in their respective systems.
Article 4
It shall be encouraged to promote scientific methods of quality control, to
adopt advanced science and technology, and for enterprises to reach
and surpass the advanced standards both at home and abroad. Citations and prices shall
be awarded to those units and individual presons that have made remarkable achievements in
exercising advanced quality control over products and having product
quality reach advanced international standards.
CHAPTER II ADMINISTRATIVE SUPERVISION
Article 5
The systems of enterprise quality setup accreditation and
product quality authentication shall be actively promoted.
Any enterprise may, on a voluntary basis, apply to the relevant
accreditation organs for enterprise quality setup accreditation and
product quality authentication in accordance with the stipulations of
the Product Quality Law.
Article 6
The production permit system may be practised in this Municipality for the
important products and the products involving personal safety
and health, which are not listed in the State production licence
catalogue.
The procedures on practising the production permit system shall
be formulated by the Shanghai Municipal People's Government.
Article 7
The system of supervised checking of product quality shall be
implemented in this Municipality, which combines supervised random
checking with periodical checking, the former being primary, and
publicizes regularly the checking results.
Where laws and regulations provide otherwise provisions on
the supervised checking of product quality, such provisions
shall prevail.
Article 8
The unified supervised checking plan of product quality for
the whole Municipality shall be exclusively drawn up and transmitted to
relevant departments at lower levels by the Municipal Technical
Supervision Bureau.
Departments of technical supervision and control at district
and county levels shall be responsible for drawing up the
supervised checking plan of product quality for the enterprises
in their respective administrative areas, and shall report
it to the Municipal Technical Supervision Bureau for record.
Article 9
Inspection of product quality shall be carried out on the
basis of the State standard, trade standard, or local standard.
Products under inspection for which no such standards as specified in
the preceding paragraph are available shall be inspected according to
the express quality standards of the products.
If the quantity of products fails to reach that specified
by the State for sampling, actual samples in kind shall be drawn for
checking according to the sampling principles stipulated by the Municipal
Technical Supervision Bureau.
Article 10
The department of technical supervision and control shall
notify the unit and individual person whose product has been
checked of the checking result after the supervisd checking
of the product quality has been completed.
The Municipal Technical Supervision Bureau shall publicize
the inspection results of product quality periodically.
Article 11
Organizations undertaking the inspection of product quality
must have necessary conditions and capability for testing and shall
engage in the inspection of product quality only after they are
qualified through examination and verification by the Municipal
Technical Supervision Bureau. The product quality inspection
organizations shall perform inspection according to the specified
procedures and methods, may not falsify inspection data or conclusions,
and shall bear legal liability for the inspecting reports
they issue.
Where laws and regulations provide otherwise on product quality
inspection organizations, such provisions shall prevail.
Article 12
Expenses needed for the supervised random checking shall be
allocated by the public finance organ at the same level, and
shall not be collected from the enterprises that submit the
product for checking.
Expenses needed for the regular inspection shall be dealt with in
accordance with the relevant provisions of the State and
this Municipality.
Expenses for both supervised random checking and regular inspection
shall include fees for test and publication of the checking
results.
Article 13
The supervision department of product quality may, during
the process of supervised checking on product quality, exercise
the following functions and powers:
(1) to review and duplicate relevant invoices, vouchers, account books,
advertisements, business letters and cables, and other relevant
materials;
(2) to enter production sites, warehouses or storing areas
for products;
(3) to seal up or detain the products which may possibly have serious
quality problems and to make decisions on disposal thereof within the
specified time limit.
CHAPTER III RESPONSIBILITY AND OBLIGATION OF THE PRODUCER
AND THE SELLER
Article 14
The producer shall be responsible for the quality of its products.
The product quality shall fulfil the following requirements:
(1) Being free from any irrational danger that threatens the
safety of person and property; if there exists the State standard,
trade standard or local standard that safeguards human health
and the safety of person and property, such standard shall
be met;
(2) Possessing such operation properties as are inherent in
the product, except with an explanation of the defects in
its operation properties;
(3) Conforming to the product standard indicated on the product or on
its package, or conforming to the quality conditions as indicated
in the product instructions or by sampals in kind and other
means. Article 15 Marks on the product or on its package shall fulfil the
following requirements:
(1) Showing certification of product quality inspection;
(2) Showing in Chinese the name of product, the name and address
of the manufacturer;
(3) Showing the specifications, grades, names and contents of major
ingredients of the product as necessitated by the properties and
operation requirements of the product;
(4) Showing the production date, and the safe service life or expiry
date if the product has a limited service life;
(5) Showing warning marks or warning instructions in Chinese for the
product that is liable to damage itself or to endanger the safety of
person and property in case of misuse;
(6) Showing production licence number or production permit
number if the product is under the production licence system
or the production permit system. Product marks may not be
attached to nude food or other nude products whose properties
make it difficult to attach marks. Article 16 Machinery, equipment,
instruments, meters and complex durable consumer goods shall
be accompanied by instructions of installation, operation,
repair and maintenance. Article 17 Packages of the products that are drastically noxious,
dangerous, fragile, and that cannot be placed upside down
during storage and transportation, and that have special requirements,
must conform to the relevant requirements and shall have warning marks or warning
instructions in Chinese, showing points for attention in regard to
storage and transportation.
Article 18
Imported products to be marketed by the seller shall bear
indications in Chinese of the name and place of origin of
the product, and the name and address of the importer or the general distributor;
products that are related to human health, and the safety
of person and property, or products that have special requirements
of operation and maintenance, must be accompanied by instructions
in Chinese; products with a limited service life must bear
an indication in Chinese of the expiry date; products assembled with imported component parts or
imported products to be separately packaged must bear indications in
Chinese of the names and addresses of the factories doing assembly or
separate packaging on themselves or on their respective packages.
Article 19
The seller shall implement the system of inspecting and checking goods delivered
before acceptance, and check the inspection certificate and other marks as
stipulated in Article 15 of these Regulations.
The seller shall, according to the product properties, take necessary
storage measures in order to preserve the quality of the products for
sale.
Article 20
The producer or seller is forbidden to produce or sell the
following kinds of products:
(1) Products that should be eliminated as explicitly ordered by the
State;
(2) Products that have passed the expiry date or have deteriorated;
(3) Products that bear forged place of production, or forged
or usurped
name and address of other producer;
(4) Products that bear forged or usurped quality mark certificates,
brand-name, top-quality marks, and other quality marks;
(5) Adulterated products, fake products passed off as genuine, inferior
products passed off as superior, and substandard products
passed off as qualified. Article 21 The seller shall take
first responsibility for the quality of the sold products.
The seller shall be responsible for the repair, replacement,
and return of the sold products, and for the compensation
for the losses to the user and consumer, if such products
are in one of the following circumstances:
(1) Lack of operation properties inherent in the products without any
prior explanation;
(2) Incompatible with the adopted product standards indicated on the
products or on their packages;
(3) Incompatible with the quality conditions indicated in the product
description or by a sample product.
If the responsibility rests with the producer or another seller who
supplies goods to the seller (hereinafter called "supplier"
for short), the seller shall have the right to recover losses
from the producer or supplier.
Article 22
If the product defects cause personal injuries or property
damages, the victim may claim against the producer or the
seller of the products for damages. If the responsibility
rests with the producer while damages have been paid by the
seller, the latter shall have the right to recover the damages
paid from the producer or the importer of the imported products.
The importer of the imported products shall have the right to
recover damages paid from the supplier of the imported products.
If the responsibility rests with the seller while damages
have been paid by the producer, the latter shall have the
right to recover the damages paid from the seller of the products.
Article 23
Where any unit or individual person that provides the seller
with sites or facilities, or organizes product exhibitions, fails to
indicate the producer or seller of the defective or imperfect products,
or although some indications are given, it is difficult for
the user and consumer to find them, the unit or individual
person shall bear the responsibility for product quality.
No unit or individual person shall be allowed to provide sites or
facilities for those who produce or sell the products listed
in Article 20 of these Regulations. The supplier of sites or facilities, on
discovering any user involved in illegal acts, shall report to the
relevant authorities. Any connivance or shielding is forbidden.
Article 24
The printer of product marks, when undertaking to print or
produce product marks, shall check the relevant certificates. It is
forbidden to print and provide fake product marks, or to provide other
parties than the principal with product marks.
CHAPTER IV SOCIAL SUPERVISION
Article 25
Users and customers shall have the right to make inquiries
of the producer or seller, and to complain to the department
of technical supervision and control, the administrative department
of industry and commerce, and other authorities about the
problems of product quality. The producer, the seller and
the relevant department shall accept and take the responsibility
of dealing with the cases.
Article 26
Social organizations for the protection of consumers' rights
and interests may suggest to the departments concerned that
the problems of product quality reported by the consumers
be handled, may participate in the supervision and inspection
of product quality organized by the administrative departments concerned, and
may support consumers in filing lawsuits with the people's
court claiming for damages caused by inferior product quality.
Article 27
The media shall exercise social supervision over product quality, and, through the mass
media introduce to the users and consumers knowledge of product quality, publicize the laws
and regulations on the supervision and control of product quality, and
expose the illegal acts in the process of producing and selling
products.
Article 28
Any unit or individual person that discovers the production
or sale of the products listed in Article 20 of these Regulations shall
have the right to report to the department concerned. The department
concerned shall keep confidentiality as the reporter requests,
and shall give rewards to the unit or individual person that
has rendered meritorious service in reporting.
CHAPTER V LEGAL LIABILITY
Article 29
Anyone who produces products nonconforming to the State standard, trade
standard or local standard that safeguard human health and the safety of person and
property shall be ordered to stop production with the products
illegally produced and the sales proceeds to be confiscated.
A fine of 1 to 5 times the sales proceeds may be imposed concurrently, and the
business licence may be revoked. The competent administrative
department concerned may mete out administrative punishments
to the business operator; a fine ranging from RMB1,000 to
RMB10,000 may be imposed upon the person held responsible.
If the wrongful act constitutes a crime, the wrongdoer shall be
prosecuted for his or her criminal liability according to
law.
Article 30
Anyone who sells products nonconforming to the State standard,
trade standard or local standard that safeguard human health
and the safety of person and property shall be ordered to
stop the sale and to recall within the specified time all
the sold products, which shall be confiscated.
In one of the following circumstances, the punishment shall cover,
besides the imposition of the punishment as stipulated in
the preceding paragraph, the confiscation of the sales proceeds,
a concurrent fine of 1 to 5 times the sales proceeds and the
possible revocation of the business licence. The competent
administrative department concerned may mete out administrative
punishments to the business operator. A fine ranging from
RMB1,000 to RMB10,000 may be imposed upon the person held
responsible. If the wrongful act constitutes a crime, the wrongdoer
shall be prosecuted for his or her criminal liability according
to law:
(1) Anyone is directly or indirectly engaged in processing
or manufacturing such products;
(2) Anyone is able to or ought to identify, as required by
his or her profession, the products which do not conform to
the requirements for safety and hygiene;
(3) Anyone continues to sell the products which have already been
announced by the State or the relevant department of this Municipality
as under a ban on sale;
(4) Anyone continues to sell the products which are harmful or have
caused harm as already reported to the seller by the user
or consumer;
(5) The seller knows or ought to know that the products do
not conform to the quality standards, as proved by other evidence.
Article 31
Anyone that produces or sells products which should be eliminated as
explicitly ordered by the State shall be ordered to stop production
and sale. Products produced and sold in violation of law and
the proceeds from the sale of such products shall be confiscated,
and a fine of 1 to 5 times the sales proceeds shall be imposed concurrently.
The business licence may be revoked, and a fine ranging from
RMB 1,000 to RMB 10,000 may be imposed upon the person held
responsible.
Article 32
Anyone that sells products which have passed the expiry date
or have deteriorated shall be ordered to stop sale. The products
sold in violation of law and the proceeds from the sale of
such products shall be confiscated, and a fine of 1 to 5 times
the sales proceeds shall be imposed concurrently, and the
business licence may be revoked. The competent administrative
department concerned may mete out administrative punishments
to the business operator; and a fine ranging from RMB1,000 to RMB10,000
may be imposed upon the person held responsible. If the
wrongful act constitutes a crime, the wrongdoer shall be prosecuted
for his or her criminal liability according to law.
Article 33
If anyone sells products labelled with forged place of production, with forged or
usurped name and address of some other manufacturer, or with
forged or usurped accreditation marks, brand-name and top-quality
marks, quality certification and other quality marks, the products
to be sold in violation of law and the proceeds from the sale
of such products involved shall be confiscated.
Any producer or seller using forged place of production, forged or
usurped name and address of some other manufacturer, or forged or
usurped accreditation marks, brand-name and top-quality marks, quality
certification and other quality marks, shall be ordered to make
corrections publicly. Products produced and sold in violation
of law and the proceeds from the sale of such products shall
be confiscated. A fine 1 to 3 times the sales proceeds may
be imposed concurrently, and a fine ranging from RMB 500 to
RMB5,000 may be imposed upon the person held responsible.
Anyone that forges, usurps or alters the production licence
number shall be dealt with according to the relevant stipulations.
Article 34
Any act in violation of the production permit system shall
result in punishments according to the following provisions:
(1) Anyone that unauthorizedly and arbitrarily produces the products
that are under the control of production permit system shall
be ordered to stop the production. Illegally manufactured
products and the illegal gains involved shall be confiscated.
A fine of 15% to 20% of the product value shall be imposed
concurrently;
(2) Anyone that sells products under the control of production permit
system but without production permit shall be ordered to stop
the sale.
Products to be sold illegally and the illegal gains involved shall be
confiscated. A fine of 15% to 20% of the illegal gain involved
shall be imposed concurrently;
(3) If anyone transfers the ownership of the production permit, the
illegal gains thus obtained shall be confiscated. A fine of
1 to 5 times the illegal gains shall be imposed, and the production
permit shall be revoked concurrently;
(4) If anyone forges, usurps or alters the production permit, the
production permit shall be confiscated; he or she shall be
ordered to stop the production and the illegal gains shall
be confiscated, and a fine of 20% to 25% of the product value
shall be imposed concurrently; if the case is serious, a fine
of 1 to 3 times the product value shall be imposed;
(5) Anyone that fails to keep the enterprise quality setup
or assure the product quality shall be ordered to make corrections within a set
period; if no rectification is made after the deadline or the product
quality still cannot be assured, the production permit shall
be revoked.
Article 35
If anyone sells adulterated products, fake products passed
off as genuine, inferior products passed off as good, and substandard
products passed off as qualified, the products to be sold
illegally and the proceeds from the sale of such products
shall be confiscated.
If any producer or seller adulterates products, and passes off
fake products as genuine, inferior ones as superior and unqualified
ones as qualified, the products and the proceeds from the
sale of such products shall be confiscated, and a fine of
1 to 5 times the sales proceeds shall be imposed concurrently.
The business licence may be revoked and the competent administrative department concerned may
mete out administrative punishments to the business operator;
a fine ranging from RMB1,000 to RMB10,000 may be imposed upon
the person held responsible. If the wrongful act constitutes
a crime, the wrongdoer shall be prosecuted for his or her
criminal liability according to law.
Article 36
Anyone that promote the sale of or purchases the products
listed in Article 20 of these Regulations through offering bribes,
accepting bribes or other illegal means, and the wrongful
act has not yet constituted a crime, shall be given administrative punishments by
his or her work unit, or by the superior competent department; the
illegal gains involved shall be confiscated, and a fine ranging from
RMB1,000 to RMB10,000 may be imposed concurrently. If the
wrongful act constitutes a crime, the wrongdoer shall be prosecuted
for his or her criminal liability according to law.
Article 37
Anyone whose product marks do not conform to the stipulations
of Article 15 to Article 18 of these Regulations shall be ordered to
make corrections; anyone whose case is serious or who refuses to make
corrections shall be ordered to stop the production and the
sale, and a fine ranging from 15% to 20% of the sales proceeds may be imposed
concurrently; a fine ranging from RMB500 to RMB1,000 may be
imposed upon the person held responsible.
The printer of product marks, who violates the provision of
Article 24 of these Regulations, shall be ordered to stop
printing and providing the marks. Both the product marks illegally
printed or provided and the proceeds involved shall be confiscated
and a fine of 1 to 5 times the sales proceeds may be imposed
concurrently. The business licence may be revoked and a fine
ranging from RMB1,000 to RMB10,000 may be imposed upon the person
held responsible. If the wrongful act constitutes a crime, the wrongdoer shall be
prosecuted for his or her criminal liability according to
law.
Article 38
Anyone whose products have defects but no explanation is given shall
be ordered to make corrections. The proceeds from the sale
of such defective products may be confiscated and a fine equal to or
less than the sales proceeds may be imposed concurrently;
a fine ranging from RMB500 to RMB2,000 may be imposed upon
the person held responsible.
Article 39
Any organization which falsifies inspection data or inspection
conclusions shall be ordered to make corrections, and a fine
of 1 to 3 times the inspection fee collected shall be imposed. A fine
ranging from RMB1,000 to RMB5,000 may be imposed upon the person held
responsibility. If the case is serious, the organization shall
be disqualified for product quality inspection, or its business licence
shall be revoked. If the wrongful act constitutes a crime, the
person held directly responsible shall be prosecuted for
his or her criminal liability according to law.
Article 40
If any unit or individual person under supervised checking
refuses to provide, hides, transfers or destroys the materials
listed in Item 1 of Section 1 of Article 13 of these Regulations,
a fine ranging from RMB1,000 to RMB50,000 may be imposed
upon the unit and a fine ranging from RMB1,000 to RMB5,000
may be imposed upon the person held responsible.
If any unit or individual person under supervised checking unseals or
transfers the sealed-up products without authorization, a
fine of 1 to 5 times the sales proceeds of the products involved
may be imposed upon the unit and a fine ranging from RMB1,000
to RMB10,000 may be imposed upon the person held responsible.
Article 41
Any seller who violates the stipulations of Section 2 of Article
21 of these Regulations shall be ordered to make corrections. A
fine of 1 to 3 times the sales price of the products involved may be
imposed.
Article 42
If anyone providing sites or facilities violates the stipulations of Section 2
of Article 23 of these Regulations, the illegal gains from providing the sites or facilities shall
be confiscated; a fine 1 to 5 times the illegal gains may
be imposed, and a fine ranging from RMB500 to RMB5,000 may
be imposed upon the person held responsible.
Article 43
If anyone engaged in the illegal acts listed in these Regulations has no
sales proceeds or fails to provide true relevant materials so that the
sales proceeds are hard to ascertain, a fine ranging from
RMB1,000 to RMB100,000 may be imposed.
Article 44
In case of any violation of the stipulations of these Regulations
involving a fine of RMB500 or less when the wrongful facts
are clear and the person fined raises no objection, the supervision
department of product quality may impose punishment on the
spot.
Article 45
The supervision department of product quality, when giving
an administrative punishment to the party concerned, shall provide a
written decision for administrative punishment, and when collecting
fines or confiscated money, shall issue a receipt exclusively
printed by the municipal financial department for the fine
and confiscated money. The fines and confiscated money collected
shall be turned over to the public finance according to relevant
provisions.
Article 46
The administrative punishment of revoking the business licence as stipulated in
these Regulations shall be decided by the administrative departments
of industry and commerce; other administrative punishments shall
be decided on by the departments of technical supervision
and control or the administrative departments of industry
and commerce according to their respective scopes of functions
and powers. Of all the punishments, those stipulated in Article
34 shall be decided on by the Municipal Technical Supervision
Bureau. Where laws and regulations provide otherwise on the
organs which exercise the right to mete out administrative
punishments, such provisions shall prevail.
Punishment shall not be repeated on the same wrongful act.
Article 47
Personnel of the department of product quality supervision,
when conducting inspection according to law, shall produce credentials
for administrative power of law enforcement, and exercise
the right of supervised checking in accordance with the prescribed processes
and methods.
Article 48
The parties concerned may solve their civil disputes over
the problems of product quality through consultation or mediation. If the
parties concerned are unwilling to solve their disputes through
consultation or mediation, or their disputes can not be resolved
through consultation or mediation, they may apply to the
arbitration organization for arbitration according to the
agreement reached by and between both parties. If no arbitration
agreement is reached, either party may institute legal proceedings
with the people's court.
Article 49
Any party concerned, that refuses to accept the decision of
the administrative punishment, may appeal for reconsideration to the
organ immediately superior to the organ that makes the decision
on the administrative punishment, within 15 days after receiving the written
decision of the administrative punishment; the party may also institute
legal proceedings directly with the people's court within
15 days after receiving the written decision of the administrative
punishment.
The reviewing organ shall make a decision after reconsideration within
60 days after receiving the application for administrative
reconsideration. If the party concerned still refuses to accept the
decision made after reconsideration, the party may institue
legal proceedings with the people's court within 15 days after
receiving the written decision made after reconsideration.
If the reviewing organ does not make a decision after reconsideration
at the expiration of the period for reconsideration, the party
concerned may institute legal proceedings with the people's
court within 15 days after the expiration of the period for
reconsideration.
If the party concerned has neither applied for reconsideration nor
brought a lawsuit in the people's court, nor complied with
the decision of punishment within the stipulated periods,
the authority making the decision for administrative punishments
may apply to the people's court for enforcement.
Article 50
If any person engaged in the supervision and control of product quality
abuses powers, neglects duties, practises favouritism and
irregularities, or shelters illegal acts, the person shall
be given administrative punishments by the department where
he or she works or by the superior competent department. If
the wrongful act constitutes a crime, the wrongdoer shall be
prosecuted for his or her criminal liability according to
law.
Article 51
If any State employee, by taking advantage of his or her
power and position, shelters or connives at the production
or the sale of the products listed in Article 20 of these
Regulations, the employee shall be given administrative punishments
by the unit where he or she works or by the superior authority.
If the irregularities constitute a crime, the wrongdoer shall
be prosecuted for his or her criminal liability according
to law.
CHAPTER VI SUPPLEMENTARY PROVISIONS
Article 52
The Shanghai Municipal Technical Supervision Bureau is responsible for the
interpretation of specific application of these Regulations.
Article 53
These Regulations shall become effective on October 1, 1994.
|
Regulations
of Shanghai Municipality on the Supervision Over Product Quality
(1998) (1)