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Opinions of the State Council on Promoting Fair Market Competition and Maintaining the Normal Market Order [Effective]
国务院关于促进市场公平竞争维护市场正常秩序的若干意见 [现行有效]
【法宝引证码】
 
  

 

Opinions of the State Council on Promoting Fair Market Competition and Maintaining the Normal Market Order

 

国务院关于促进市场公平竞争维护市场正常秩序的若干意见

(No. 20 [2014] of the State Council) (国发〔2014〕20号)

The people's governments of all provinces, autonomous regions, and municipalities directly under the Central Government; all ministries and commissions under the State Council; and all institutions directly under the State Council: 各省、自治区、直辖市人民政府,国务院各部委、各直属机构:
In accordance with the spirit of the Decision of the Central Committee of the Communist Party of China on Major Issues concerning the Full-Scale Deepening of Reform and the requirement of the State Council for institutional reform and shift of functions, the following opinions on improving the market regulation system, promoting fair market competition and maintaining the normal market order are hereby issued. 按照《中共中央关于全面深化改革若干重大问题的决定》精神、国务院机构改革和职能转变要求,现就完善市场监管体系,促进市场公平竞争,维护市场正常秩序提出以下意见。
I. General Requirements   一、总体要求
1. Guiding ideology: (一)指导思想。
Under the guidance of the Deng Xiaoping Theory, the important thought of “Three Represents” and the Scientific Outlook on Development, with the in-depth study and comprehension of the spirit of the 18th National Congress of the Communist Party of China (CPC) and the 2nd and 3rd Plenary Sessions of the 18th CPC Central Committee, the various decisions and plans of the CPC Central Committee and the State Council shall be fully implemented, while the market plays a decisive role in the allocation of resources, the government needs to play a better role, efforts shall be focused on solving problems such as an incomplete market system, excessive government intervention, and inadequate regulation, equal attention shall be paid to decentralization and control, and easy access and strict regulation shall be applied, so as to incentivize the market participants, equally protect the lawful rights and interests of various market participants, maintain a market order of fair competition, and promote sustained and sound economic and social development. 以邓小平理论、“三个代表”重要思想、科学发展观为指导,深入学习领会党的十八大、十八届二中、三中全会精神,贯彻落实党中央和国务院的各项决策部署,围绕使市场在资源配置中起决定性作用和更好发挥政府作用,着力解决市场体系不完善、政府干预过多和监管不到位问题,坚持放管并重,实行宽进严管,激发市场主体活力,平等保护各类市场主体合法权益,维护公平竞争的市场秩序,促进经济社会持续健康发展。
2. Basic principles: (二)基本原则。
Simplification of administration and decentralization of powers: The decisive role of the market in the allocation of resources shall be maximized. Powers that ought to be decentralized shall be decentralized to the permitted extent. The threshold of access shall be lowered. Both employment and business startups shall be promoted. Market participants may act as long as it is not prohibited by the law; and government departments may not take any action without authorization by the law. 简政放权。充分发挥市场在资源配置中的决定性作用,把该放的权力放开放到位,降低准入门槛,促进就业创业。法不禁止的,市场主体即可为;法未授权的,政府部门不能为。
Regulation in accordance with the law: The government needs to play a better role, performs its functions of market regulation by adhering to the concept and means of the rule of law, strengthens the interim and ex post regulation, promotes the development of rules, standards and procedures for market regulation, and builds a market environment in deference to the rule of law. 依法监管。更好发挥政府作用,坚持运用法治思维和法治方式履行市场监管职能,加强事中事后监管,推进市场监管制度化、规范化、程序化,建设法治化市场环境。
Impartiality and transparency: The various market participants shall be equal in terms of rights, opportunities, and rules of play; and the government regulation standards, procedures, and results shall all be open to protect the right to be informed, the right of participation, and the right of supervision of the market participants and the general public. 公正透明。各类市场主体权利平等、机会平等、规则平等,政府监管标准公开、程序公开、结果公开,保障市场主体和社会公众的知情权、参与权、监督权。
Consistency between power and responsibility: The market regulation duties of governments and their departments at all levels shall be scientifically defined; and where they are prescribed by law, government departments must perform them. Regulatory rules shall be established and perfected. The responsibility to regulate the behavior of market participants, the market regulation responsibility of government departments, and the territorial accountability of government leadership shall all be enforced. 权责一致。科学划分各级政府及其部门市场监管职责;法有规定的,政府部门必须为。建立健全监管制度,落实市场主体行为规范责任、部门市场监管责任和属地政府领导责任。
Governance by the whole society: The regulatory role of laws and regulations, the self-regulatory role of industry organizations and the supervisory role of public opinions and the general public shall all be maximized to realize governance by the whole society and promote self-restraint and bona fide operation on the part of market participants. 社会共治。充分发挥法律法规的规范作用、行业组织的自律作用、舆论和社会公众的监督作用,实现社会共同治理,推动市场主体自我约束、诚信经营。
3. General objectives: (三)总体目标。
Based on promoting the autonomy of enterprises in operations and fair competition, the free choice and independent consumption of consumers, and the free flow of commodities and elements and equal exchange, a unified and open modern market system characterized by orderly competition, good faith, compliance with law, and powerful regulation shall be established, and the formation of a fair, impartial, transparent, and efficient market regulation pattern with clear definition of powers and responsibilities as guaranteed by the rule of law shall be accelerated. By the year of 2020, a market regulation system with a relatively mature framework and more definitive rules shall have been established. 立足于促进企业自主经营、公平竞争,消费者自由选择、自主消费,商品和要素自由流动、平等交换,建设统一开放、竞争有序、诚信守法、监管有力的现代市场体系,加快形成权责明确、公平公正、透明高效、法治保障的市场监管格局,到2020年建成体制比较成熟、制度更加定型的市场监管体系。
II. Easing Restrictions on Market Access   二、放宽市场准入
For all investments and operations and civil and commercial acts of market participants out of their free will, the government may not impose any restrictions on their access to those fields that are not fields to which their access is prohibited by laws and regulations, provided that their access is not detrimental to the interests of third parties, the public interest, and the national security. 凡是市场主体基于自愿的投资经营和民商事行为,只要不属于法律法规禁止进入的领域,不损害第三方利益、社会公共利益和国家安全,政府不得限制进入。
4. Reform of the system of market access: Negative lists for market access shall be formulated. The State Council clearly sets out in the form of lists the sectors, fields, and business, among others, where investments and operations are prohibited or restricted. The various market participants may all legally gain equal access to those outside of the negative lists; and, if local governments need to make any specific adjustments, the provincial governments shall report to the State Council for approval. (The National Development and Reform Commission and the Ministry of Commerce shall be the lead authorities responsible in this respect.) The system of industrial and commercial registration shall be reformed to promote facilitation in industrial and commercial registration, the number of prior approvals shall be reduced greatly, and the system of government permits before business licenses shall be changed into the system of business licenses before government permits. (The State Administration for Industry and Commerce and the State Commission for Public Sector Reform shall be the lead authorities responsible in this respect.) The formalities shall be simplified, the time limit shall be shortened, and exploration to apply the system of “three in one” registration—the business license for industrial and commercial operation, the organizational or institutional code certificate, and the tax registration certificate—shall be encouraged. (The local people's governments at or above the county level shall be responsible in this respect.) The standards for access to energy conservation, land conservation, water conservation, environment, technology, security, and other markets shall be improved. The application of the management model of pre-establishment national treatment plus negative lists for foreign investment shall be explored. (The National Development and Reform Commission and the Ministry of Commerce shall be the lead authorities responsible in this respect.) (四)改革市场准入制度。制定市场准入负面清单,国务院以清单方式明确列出禁止和限制投资经营的行业、领域、业务等,清单以外的,各类市场主体皆可依法平等进入;地方政府需进行个别调整的,由省级政府报经国务院批准。(发展改革委、商务部牵头负责)改革工商登记制度,推进工商注册制度便利化,大力减少前置审批,由先证后照改为先照后证。(工商总局、中央编办牵头负责)简化手续,缩短时限,鼓励探索实行工商营业执照、组织机构代码证和税务登记证“三证合一”登记制度。(县级以上地方各级人民政府负责)完善节能节地节水、环境、技术、安全等市场准入标准。探索对外商投资实行准入前国民待遇加负面清单的管理模式。(发展改革委、商务部牵头负责)
5. Administrative approve items shall be greatly reduced: Approval of investment, approval of production or any other business activity, licensing and determination of qualification and level of qualification, rating, benchmarking, or commendation activity, and assessment, among others, shall all be set strictly in compliance with the administrative license law and the procedures prescribed by the State Council; and those set in violation of the prescribed procedures shall all be cancelled without exception. (The State Commission for Public Sector Reform, the Legislative Affairs Office and the Ministry of Human Resources and Social Security shall be the lead authorities responsible in this respect.) Restrictions on competitive pricing shall be relaxed. (The National Development and Reform Commission shall be the lead authority responsible in this respect.) The setting of temporary administrative licensing by provincial people's governments shall be strictly limited to items involving hazard control, distribution of limited public resources, and provision of particular reputation, identifications, and certifications, and must be in compliance with the statutory procedures. (The provincial people's governments shall be responsible in this respect.) The paid intermediary services required in the front-end process of existing administrative approvals, including but not limited to technical review, appraisal, assurance and consultation, shall be overhauled. Those that can be cancelled shall be cancelled as quickly as possible. For those that need to be maintained, the time limits and fee charges shall be standardized and published. (The State Commission for Public Sector Reform, the National Development and Reform Commission, and the Ministry of Finance shall be the lead authorities responsible in this respect.) Administrative affairs centers and online official affairs processing halls shall be established and perfected to realize the centralized handling of administrative approvals. Each department provides services through one single widow to the public, and the local government at each level provides “one-stop” service, to reduce links and raise efficiency. (The local people's governments at or above the county level shall be responsible in this respect.) (五)大力减少行政审批事项。投资审批、生产经营活动审批、资质资格许可和认定、评比达标表彰、评估等,要严格按照行政许可法和国务院规定的程序设定;凡违反规定程序设定的应一律取消。(中央编办、法制办、人力资源社会保障部牵头负责)放开竞争性环节价格。(发展改革委牵头负责)省级人民政府设定临时性的行政许可,要严格限定在控制危险、配置有限公共资源和提供特定信誉、身份、证明的事项,并须依照法定程序设定。(省级人民政府负责)对现有行政审批前置环节的技术审查、评估、鉴证、咨询等有偿中介服务事项进行全面清理,能取消的尽快予以取消;确需保留的,要规范时限和收费,并向社会公示。(中央编办、发展改革委、财政部负责)建立健全政务中心和网上办事大厅,集中办理行政审批,实行一个部门一个窗口对外,一级地方政府“一站式”服务,减少环节,提高效率。(县级以上地方各级人民政府负责)
6. Prohibition of approvals set in disguised forms: Any setting of administrative licensing or addition of any conditions or procedures for administrative licensing in violation of law shall be strictly prohibited. Any setting of administrative licensing in disguised forms, including but not limited to recordation, registration, enrollment, annual inspection, supervision over production, accreditation, certification, review, designation, allocation of codes, and renewal of certificates or the name of non-administrative licensing approval, shall be strictly prohibited. Fee charge in disguised forms or creation of fee charge items in violation of law in the name of applying administrative approval shall be strictly prohibited. Any change of items included in administrative approval into intermediary service items to engage in approval in disguised forms or paid services shall be strictly prohibited. Any restoration or centralization from lower levels of administrative approval items that have been cancelled or decentralized to lower levels in the name of strengthening the interim and ex post regulation shall be strictly prohibited. (The State Commission for Public Sector Reform, the National Development and Reform Commission, the Ministry of Finance, and the Legislative Affairs Office shall be respectively responsible according to their duties and division of labor.) (六)禁止变相审批。严禁违法设定行政许可、增加行政许可条件和程序;严禁以备案、登记、注册、年检、监制、认定、认证、审定、指定、配号、换证等形式或者以非行政许可审批名义变相设定行政许可;严禁借实施行政审批变相收费或者违法设定收费项目;严禁将属于行政审批的事项转为中介服务事项,搞变相审批、有偿服务;严禁以加强事中事后监管为名,变相恢复、上收已取消和下放的行政审批项目。(中央编办、发展改革委、财政部、法制办按职责分工分别负责)
7. Removal of regional blockade and industry monopoly: The regulations, rules, and provisions issued by the governments and their departments at all levels involving market access and regulation of business behavior shall be overhauled, those provisions and practices obstructing the national single market and fair competition shall be repealed, those preferential policies in non-compliance with laws and regulations to attract investment shall be redressed, and the setting of discriminative access conditions or charges or the setting of discriminative prices for goods or services from other regions and the requirement of purchase of specified goods or services, among others, in non-compliance with laws and regulations shall be redressed. (The National Development and Reform Commission, the Ministry of Finance, and the Ministry of Commerce shall be the lead authorities responsible in this respect.) B Franchise and other business modes shall be applied in the fields of public utilities and important public infrastructure to introduce a competition mechanism and relax restrictions on competitive business in natural monopoly industries. (The National Development and Reform Commission shall be the lead authority responsible in this respect.) (七)打破地区封锁和行业垄断。对各级政府和部门涉及市场准入、经营行为规范的法规、规章和规定进行全面清理,废除妨碍全国统一市场和公平竞争的规定和做法,纠正违反法律法规实行优惠政策招商的行为,纠正违反法律法规对外地产品或者服务设定歧视性准入条件及收费项目、规定歧视性价格及购买指定的产品、服务等行为。(发展改革委、财政部、商务部牵头负责)对公用事业和重要公共基础设施领域实行特许经营等方式,引入竞争机制,放开自然垄断行业竞争性业务。(发展改革委牵头负责)
8. Improvement of the market exit mechanism: Market participants violating any prohibitive provisions of laws and regulations and market participants failing to meet the mandatory standards for energy conservation, environmental protection, safe production, food, drug, and engineering quality, among others, shall be banned in accordance with the law, and their relevant permits and licenses shall be revoked. (The relevant market regulation departments shall be respectively responsible according to their duties and division of labor.) The delisting system of listed companies shall be strictly executed. The enterprise bankruptcy system shall be improved. The rules and procedures for bankruptcy reorganization, reconciliation, receivership, and liquidation, among others, shall be optimized. The bankruptcy liquidation obligation of debtors shall be reinforced. The competitive method for appointment of bankruptcy administrators shall be promoted. Exploration shall be made for applying summary bankruptcy procedures for small and micro enterprises with a small amount of assets or a limited business territory or for specified ones. (The China Securities Regulatory Commission and the Legislative Affairs Office shall be respectively responsible according to their duties and division of labor.) The enterprise deregistration process shall be simplified and improved. Summary procedures for deregistration of individual industrial and commercial households, enterprises not having opened for business and enterprises without claims and debts shall be applied on a trial basis. (The State Administration for Industry and Commerce shall be responsible in this respect.) The provisions on prohibiting lawbreakers in the fields such as finance, food and drug, safe production, and press and publication from practicing in such fields shall be strictly enforced. The provisions on prohibiting lawbreakers in the fields such as supplies for children and seniors, transportation, and construction engineering shall be developed and implemented on a trial basis promptly. (The People's Bank of China, the China Banking Regulatory Commission, the China Securities Regulatory Commission, the China Insurance Regulatory Commission, the China Food and Drug Administration, the State Administration of Work Safety, the State Administration of Press, Publication, Radio, Film and Television, the General Administration of Quality Supervision, Inspection and Quarantine, the Ministry of Transport, the Ministry of Housing and Urban-Rural Development, and other departments shall be respectively responsible according to their duties and division of labor.) (八)完善市场退出机制。对于违反法律法规禁止性规定的市场主体,对于达不到节能环保、安全生产、食品、药品、工程质量等强制性标准的市场主体,应当依法予以取缔,吊销相关证照。(各相关市场监管部门按职责分工分别负责)严格执行上市公司退市制度,完善企业破产制度,优化破产重整、和解、托管、清算等规则和程序,强化债务人的破产清算义务,推行竞争性选任破产管理人的办法,探索对资产数额不大、经营地域不广或者特定小微企业实行简易破产程序。(证监会、法制办按职责分工分别负责)简化和完善企业注销流程,试行对个体工商户、未开业企业以及无债权债务企业实行简易注销程序。(工商总局负责)严格执行金融、食品药品、安全生产、新闻出版等领域违法人员从业禁止规定。抓紧制订试行儿童老年用品及交通运输、建筑工程等领域违法人员从业禁止规定。(人民银行、银监会、证监会、保监会、食品药品监管总局、安全监管总局、新闻出版广电总局、质检总局、交通运输部、住房城乡建设部等部门按职责分工分别负责)
III. Strengthening Regulation of Market Behavior   三、强化市场行为监管
Production, trading, transactions, and other market behavior shall be regulated in accordance with the law, and innovation in the manners of regulation shall be made, to protect fair competition, promote integrity and compliance with law, and maintain the market order. 依法规范生产、经营、交易等市场行为,创新监管方式,保障公平竞争,促进诚信守法,维护市场秩序。
9. Reinforcing the responsibilities of producers and traders: The relevant departments of the State Council shall promptly promote the development and revision of the relevant regulations, improvement of the primary accountability and advance compensation system of traders in consumption, establishment of the self-declaration, disclosure and supervision system of goods and service standards of enterprises, establishment of the compulsory product safety accident reporting system of consumer goods producing and trading enterprises, revision of the compulsory defective product recall system, and establishment of the ecological damage responsibility system, which shall be all submitted to the State Council for deliberation. (The State Administration for Industry and Commerce, the General Administration of Quality Supervision, Inspection and Quarantine, the China Food and Drug Administration, the Ministry of Environmental Protection, the State Forestry Administration, and the Legislative Affairs Office shall be respectively responsible according to their duties and division of labor.) Liability insurance in the fields such as food and drug, environment, and safe production shall be extended on a trial basis to form a social relief mechanism based on sharing of risks and a market supervision mechanism in which specialized organizations evaluate and monitor risks. (The China Insurance Regulatory Commission shall be the lead authority responsible in this respect.) (九)强化生产经营者主体责任。国务院有关部门要抓紧推动制修订有关条例,完善消费环节经营者首问和赔偿先付制度,建立企业产品和服务标准自我声明公开和监督制度,建立消费品生产经营企业产品安全事故强制报告制度,修订缺陷产品强制召回制度,建立生态环境损害责任制度,提请国务院审议。(工商总局、质检总局、食品药品监管总局、环境保护部、林业局、法制办按职责分工分别负责)试行扩大食品药品、生态环境、安全生产等领域的责任保险,形成风险分担的社会救济机制和专业组织评估、监控风险的市场监督机制。(保监会牵头负责)
10. Strengthening regulation by standards: The promotion of revision of the standardization law shall be accelerated. Reform of the system of compulsory standards shall be promoted. The management of compulsory national standards shall be strengthened. (The General Administration of Quality Supervision, Inspection and Quarantine shall be the lead authority responsible in this respect.) Compulsory standards shall be strictly limited to the extent of protecting personal health, the safety of life and property, the national security and the safety of environment. Market participants must strictly comply with compulsory standards. Market regulation departments must strictly exercise regulation and enforce law in accordance with the relevant compulsory standards. (The relevant market regulation departments shall be respectively responsible according to their duties and division of labor.) (十)强化依据标准监管。加快推动修订标准化法,推进强制性标准体系改革,强化国家强制性标准管理。(质检总局牵头负责)强制性标准严格限定在保障人身健康和生命财产安全、国家安全、生态环境安全的范围。市场主体须严格执行强制性标准,市场监管部门须依据强制性标准严格监管执法。(各相关市场监管部门按职责分工分别负责)
11. Severe punishment of acts of monopoly and acts of unfair competition: In accordance with the relevant provisions of the antimonopoly law, the law against unfair competition and the pricing law, monopoly agreements and abuse of market dominance positions, which impair competition, infringe upon consumer rights, and obstruct innovation and technological progress, shall be seriously investigated and punished. The antimonopoly investigation against concentration of undertakings shall be strengthened to effectively prevent obtainment of monopoly positions by means of mergers and acquisitions to impair market competition. The measures for regulation of natural monopoly industries shall be reformed to strengthen regulation of monopolistic processes. Acts of unfair competition such as imitating or counterfeiting famous brands, false advertising, price fraud, commercial bribery, illegal premium sales, commercial defamation, and sales of goods without certificates of import compliance shall be seriously investigated and punished. The various intellectual property rights shall be protected in accordance with the law. Technology innovation shall be encouraged. Infringement upon intellectual property rights and production and sale of counterfeit and inferior quality products shall be suppressed. (The Ministry of Commerce, the National Development and Reform Commission, the State Administration for Industry and Commerce, the State Intellectual Property Office, and other departments shall be respectively responsible according to their duties and division of labor.) (十一)严厉惩处垄断行为和不正当竞争行为。依照反垄断法反不正当竞争法价格法的有关规定,严肃查处损害竞争、损害消费者权益以及妨碍创新和技术进步的垄断协议、滥用市场支配地位行为;加大经营者集中反垄断审查力度,有效防范通过并购获取垄断地位并损害市场竞争的行为;改革自然垄断行业监管办法,强化垄断环节监管。严厉查处仿冒名牌、虚假宣传、价格欺诈、商业贿赂、违法有奖销售、商业诋毁、销售无合法进口证明商品等不正当竞争行为;依法保护各类知识产权,鼓励技术创新,打击侵犯知识产权和制售假冒伪劣商品的行为。(商务部、发展改革委、工商总局、知识产权局等部门按职责分工分别负责)
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