Procedures of Shanghai Municipality on Handling Complaints and Offence Reports in Market Supervision and Administration

（December 21, 2017)

Chapter I  General Provisions

Article 1(Purposes and Basis)

With a view to unifying the handling procedures of complaints and offence reports for market supervision and administration and standardizing the market supervision departments in exercising their functions and powers, these Procedures are formulated in accordance with the Law of the People’s Republic of China on Protection of Consumer Rights and Interests, the Law of the People’s Republic of China on Product Quality, the Law of the People’s Republic of China on Food Safety, the Price Law of the People’s Republic of China, and other laws and regulations, and in light of the actual circumstances of this Municipality.

Article 2 (Application Scope)

These Procedures apply to the handling of the complaints and offence reports by the district market supervision departments within this Municipality (hereinafter referred to as the “district market supervision department”).

Article 3 (Scope of Complaints and Offence Reports)

Complaints as mentioned in these Procedures refer to the ones that the consumers make due to disputes over consumer rights and interests with the operators when purchasing, using goods or receiving services for the daily consuming within the scope of the duties of the district market supervision department.

Offence reports as mentioned in these Provisions refer to the ones that the natural persons, legal persons and unincorporated organizations (hereinafter referred to as the “informants”) make on the alleged illegal activities within the scope of the duties of the district market supervision department.

Article 4 (Supervision and Guidance)

The municipal administration for industry and commerce, the municipal department of quality and technical supervision, the municipal food and drug administration and the municipal competent department for price administration (hereinafter referred to as the “municipal competent departments") shall strengthen the guidance and supervision over the handling of complaints and offence reports by the district market supervision departments, establish consultation and coordination mechanism for complex complaints and offense-reports and supervise the handling of major complaints and offense reports.

Article 5 (Specific Work Department)

The district market supervision department shall establish and perfect a complaint and offense report management mechanism, appoint the specific department responsible for the complaint and offence reports, and shoulder the responsibility for the relevant work of complaints and offense reports.

Article 6 (Information System)

This Municipality shall set up an information management system for market supervision and administration on complaints and offence reports, implement unified coding, unified handling and unified notification, and support the monitoring, analysis and early warning of complaints and offence reports.

Article 7 (Credit Management)

The market supervision departments are encouraged to cooperate with credit service agencies to introduce credit management tools, and implement linkage punishment to the dishonest behavior in the complaints and offence reports process according to the law.

Chapter II  Consumer Complaints Handling

Article 8 (Jurisdiction Principle)

Complaints shall be governed by the district market supervision department of the place of business operations or place of residence of the operators.

Complaints arising from online transactions shall be governed by the district market supervision department of the place where the operator resides or where the third party trading platform dwells.

Article 9 (Transfer of Jurisdiction)

The municipal competent department may directly handle complaints under the jurisdiction of the district market supervision department if necessary.

Complaints governed by the district market supervision department may be submitted to the municipal competent department for handling in case they are difficult to be handled due to special reasons.

Article 10 (Designation of Jurisdiction)

Disputes over the jurisdiction between the district market supervision departments, if an agreement thereon fails to be reached, shall be submitted to the municipal competent department for designation and administration. The municipal competent department shall, within five working days from the date of receipt of the submitted materials, appoint the jurisdiction department.

The district market supervision departments shall, within three working days from the date of receipt of the designated jurisdiction decision, go through the transfer formalities.

Article 11 (Complaint Content)

When making complains, consumers should provide the following:

1. the real name and contact information of the consumer;

2. information such as the name and address of the operator complained of; and

3. the specific complaint requirements, reasons and dispute and other relevant facts.

Where consumers entrust an agent to make a complaint, the original power of attorney and the ID of the client and trustee shall be submitted. The power of attorney should set out commissioned matters and limits of authority, and be signed by the consumer himself/herself.

Article 12 (Time Limit of Complaint)

Consumers should make a complaint within one year from the date of the dispute on the consumer rights and interests.

Article 13 (Joint Complaint)

Where there are more than two consumers that complain about the same operator, with the same type of complaint content, which the district market supervision department deems may be merged to be handled, they may, through the consent of both the consumer and operator, be handled as a joint complaint.

Joint complaints from a large number of consumers may be made by their representative with the written authorization by the consumers. The complaint behavior by the representative shall have effect on the represented consumers, but the alteration of the representative, waiver of complaint, and reconciliation, should be consented to by the represented consumers.

Article 14 (Inapplicable Cases)

Complaints in any of the following circumstances will not be accepted:

1. that don’t meet the requirements of Article 11 of these Procedures;

2. that don’t belong to the duties of the market supervision department or are out of the jurisdiction of this department;

3. that exceed the deadline for complaints;

4. of which the handling is completed or which are in the process of handling by the court or arbitration agency, or of which the conciliation is completed or which are in the process of handling by the Consumer Council, the People’s Conciliation Committee, the market supervision departments or other administrative departments;

5. where quality inspection and appraisal of the disputed goods or services need to be inspected, but it is unable to carry out the testing and appraisal;

6. where the operator complained of no longer has legal liabilities; and

7. other inapplicable circumstances as provided by laws and regulations.

Article 15 (Acceptance and Notification)

The district market supervision department shall, within seven working days from the date of receipt of the complaint, make a decision on whether or not to accept the complaint and inform the consumer. For the inacceptable cases, it shall inform the consumers of the reasons for not being acceptable as well as other accessible approaches to safeguard the rights and interests of consumers.

Where consumers that directly submit the complaints before the dispute arises without communicating with the operator, the district market supervision department shall not accept the case, and at the same time, shall inform consumers that they may communicate with the operator in advance.

The time required to determine the jurisdiction shall not be counted within the time limit provided in the first clause.

Article 16(Termination of Handling)

The district market supervision department may terminate the processing when finding inconformity of the complaints with the requirements of the second clause of Article 11 of these Procedures or there is an availability of the circumstances described in Items 3, 4, 5, 6 of Article 14 before accepting a complaint or organizing conciliation.

Article 17 (Avoidance of Conciliators)

Conciliators of the district market supervision department, who are close relatives of consumers or operators or have other interests at stake with them and may affect the fair handling of complaints, shall be avoided.

Where a consumer or operator files an application for avoidance to a conciliator, the district market supervision department shall suspend the conciliation promptly and a decision on whether or not to avoid the case shall be made by the chief person-in-charge or sub-person-in-charge of the district market supervision department.

Article 18 (Form of Conciliation)

Where consumers and operators agree to conciliate, the district market supervision department shall organize conciliation. The district market supervision department may decide to conduct conciliation in the form of on-site or off-site conciliation.

When adopting the form of on-site conciliation, the district market supervision department shall notify in advance of the time, place, and conciliator, and the consumers and operators shall attend the conciliation according to the notified time and place.

When the district market supervision department makes conciliation, the consumers shall provide proof of identity, and the consumers and operators should provide evidence according to law.

With the consensus of consumers and operators, the district market supervision department may invite relevant social organizations and professionals to participate in conciliation.

People’s conciliators, lawyers and other social forces are encouraged and supported to participate in conciliation.

Article 19(Inspection and Appraisal)

For disputed goods or service quality that need to be inspected or appraised, consumers and operators may agree on the agency or unit that will conduct the inspection and appraisal, and in the case of non-agreement, the district market supervision department that accepts the consumer complaints shall entrust or designate a qualified inspection agency or appraisal institution to conduct inspection and appraisal.

The cost of inspection and appraisal shall be paid in advance by the operator, with the equivalent guarantee by the consumer, which shall ultimately be borne by the party liable. If the liability is unlikely to be clearly defined, it shall be shared by the consumer and the operator. Where there are provisions otherwise provided in the laws and regulations, such provisions shall prevail.

Article 20(Conciliation Agreement)

The district market supervision department shall guide both parties to voluntarily reach a settlement agreement between consumers and operators on the basis of equal consultation.

The district market supervision department shall make a conciliation statement when reaching a conciliation agreement.

The content of the conciliation statement can be confirmed in the way of on-site confirmation, and may also be confirmed in the way of remote confirmation.

Article 21 (Termination of Conciliation)

Within the time limit for conciliation, the district market supervision department shall terminate the conciliation and inform the consumers in any of the following circumstances:

1. The consumer withdraws the complaints;

2. The consumer and operator reconcile themselves;

3. The consumer or operator refuses to conciliate;

4. The operator is unable to be contacted;

5. The consumer or operator fails to participate in the organized on-site conciliation;

6. The consumer and operator fail to reach an agreement through conciliation;

7. The consumer applies for arbitration and litigation on the same dispute during the conciliation; and

8. Other circumstances that deserve termination.

Article 22 (Time Limit for Conciliation)

The district market supervision department shall terminate the conciliation within 60 days from the date of accepting the complaint.

The time required for inspection or appraisal shall not be counted within the time limit provided in the preceding clause.

Article 23(Judicial Confirmation)

Where the consumer and the operator deem it necessary, they may jointly apply for judicial confirmation to the grass-root people’s court or the people’s court where the district market supervision department issuing the conciliation letter is located for judicial confirmation.

Chapter III  Offence Reports Handling

Article 24 (Jurisdiction Principle)

The offence reports shall be governed by the district market supervision department in the place where the alleged illegal act takes place.

Where there are provisions otherwise provided for by the State on jurisdiction for offence-reporting on the online advertisements and online food safety violations, such provisions shall prevail.

Where the appeal made by the informant has both the content of complaint and offence reports, the case shall be handled in a unified manner by the district market supervision department that has the jurisdiction over the offence report.

Article 25 (Offence Report Handover)

Upon receiving the offence report, the district market supervision department, when finding that the supervision obligation is not within the jurisdiction of the current department, shall, within seven working days from the date of receipt, hand it over to the district market supervision department with the jurisdiction right and notify the informant.

Where the district market supervision department that receives the handover finds it improper, it shall submit the handover case to the municipal competent department for designated jurisdiction and shall not submit or return it by itself.

Where there are provisions otherwise provided for in laws and regulations, such provisions shall prevail.

Article 26 (Designated Jurisdiction and Jurisdictional Transfer)

If an agreement on the disputes over the jurisdiction of the district market supervision departments fails to be reached, they shall be submitted to the municipal competent department for designated jurisdiction. The municipal competent department shall, within five working days from the date of receipt of the submitted materials, appoint the jurisdiction department.

For the offence reports of which the jurisdiction is designated by the municipal competent department, the district market supervision department, shall, within three working days from the date of receiving the designated jurisdictional decision, handle the transfer formalities.

The municipal competent department may, if necessary, directly handle the offence reports within the jurisdiction of the district market supervision department.

Article 27 (Offence Report Requirements)

The content of offence reports shall meet the following requirements:

1. Within the duties of the market supervision department;

2. Availability of a specific reported object and address;

3. Availability of specific facts about the alleged illegal act; and

4. The alleged illegal act does not belong to the already processed category except for those with a new clue from the informant.

Article 28 (Offence Report Filing)

The district market supervision department shall, within 10 days from the date of tip-off receipt, organize the verification and decide whether to file the case. For the case of exceptional circumstances, the time limit may be extended to 15 days.

The time required for inspection, testing, verification, appraisal, and assistance in investigation by other administrative organs shall not be counted within the time limit as provided in the preceding clause.

Article 29 (Notification of Offence Report Handling)

Where an offence report is not filed, the district market supervision department shall, within seven working days from the date of the decision, notify the informant and state the reasons.

As for the decision such as the administrative punishment, non-punishment, case close, and transfer to the reported alleged violations, the district market supervision department shall, within 15 working days from the date of making such a decision, notify the informant.

In case that the name, contact name or contact information provided by the informant is not clear enough for him/her to be contacted, the notification will not be made.

Where there are provisions otherwise provided for in laws and regulations, such provisions shall prevail.

Article 30 (Confidentiality of Informant’s Information)

The district market supervision department shall keep the informant’s information confidential, and may not reveal the name, contact information and other identifying information to a third party. Where the informant submits complaints at the same time, the district market supervision department shall not disclose the reported information.

Chapter IV  Other Provisions

Article 31 (Way of Notification)

The district market supervision department may make notifications through the information management system on market complaints and offence reports supervision, in the form of active pushing, or may make notification by writing, telephone, SMS and other means.

Article 32 (Administrative Interview)

The district market supervision department may conduct administrative interviews with operators that have one of the following circumstances:

1. Complaints and offence reports reach a significant number;

2. Complaints and offence reports have a greater social impact;

3. Mass complaint;

4. Perfunctory, negative coping with the complaints and offence reports, and non-cooperation with investigation; and

5. Other circumstances that need interviews.

Article 33 (Archives Preservation)

The district market supervision department shall file archival and audiovisual materials with preservation value to keep them for future reference in accordance with the Archives Law of the People’s Republic of China and other laws and regulations.

Chapter V  Supplementary Provisions

Article 34 (Connectivity of Laws and Regulations)

Where a consumer files a complaint in accordance with the Law of the People’s Republic of China on Product Quality, it shall be handled in accordance with the complaint procedures provided for in these Procedures.

Complaints from natural persons, legal persons and unincorporated organizations that require investigation of the alleged illegal activities in accordance with the law shall be handled in accordance with the offence report procedures provided for in these Procedures.

Article 35 (Special Applicable Provisions)

These Procedures apply to the offence reports and consumer complaints of trademarks handled by Pudong Intellectual Property Administration.

Article 36 (Applicable Reference)

Other municipal competent departments within the jurisdiction of the district market supervision department shall conduct relevant implementation in accordance with the provisions on the municipal competent department in these Procedures.

The complaints of peasants purchasing and using the production materials for agricultural production shall be handled with reference to these Procedures.

Article 37(Unified Filing Format)

The district market supervision department shall, in handling complaints and offence reports, use a unified filing format, which shall be jointly formulated by the relevant municipal competent department.

Article 38(Effective Date)

These Procedures shall be effective as of March 15, 2018.