Procedural Provisions on the Administrative Law Enforcement of Cyberspace Affairs Departments

Procedural Provisions on the Administrative Law Enforcement of Cyberspace Affairs Departments

Order of the Cyberspace Administration of China
(No. 14)

The Procedural Provisions on the Administrative Law Enforcement of Cyberspace Affairs Departments, as deliberated and adopted at the second executive meeting of the Cyberspace Administration of China for 2023 on February 3, 2023, is hereby issued and shall come into force on June 1, 2023.

Zhuang Rongwen, Director

March 18, 2023

Procedural Provisions on the Administrative Law Enforcement of Cyberspace Affairs Departments

Chapter I General Provisions

Article 1 For the purposes of regulating and guaranteeing the fulfillment of the functions by the cyberspace affairs departments according to law, protecting the lawful rights and interests of citizens, legal persons and other organizations, and protecting state security and public interests, these Provisions are developed in accordance with the Law of The People's Republic Of China on Administrative Penalty, the Administrative Compulsion Law of the People's Republic of China, the Cybersecurity Law of the People's Republic of China, the Personal Information Protection Law of the People's Republic of China, and other laws and administrative regulations.

Article 2 These Provisions shall apply to the implementation of administrative penalties and other administrative law enforcement by cyberspace affairs departments.

For the purposes of these Provisions, the “cyberspace affairs departments” means the Cyberspace Administration of China and the local cyberspace administrations.

Article 3 When implementing administrative law enforcement, the cyberspace affairs departments shall insist on the combination of punishments and education, and ensure clear facts, irrefutable evidence, accurate basis, and lawful procedures.

Article 4 The cyberspace affairs departments of the state shall develop a supervision system for administrative law enforcement in the system according to law.

The cyberspace affairs departments at higher levels shall supervise the administrative law enforcement implemented by the cyberspace affairs departments at lower levels.

Article 5 The cyberspace affairs departments shall strengthen the building of law enforcement teams and law enforcement capacity, and establish and improve their systems for the training, examination and assessment, qualification management and employment with certificates of law enforcement officers.

Article 6 The cyberspace affairs departments and their law enforcement officers shall keep confidential the state secrets, trade secrets or personal privacy they have access to during the process of law enforcement according to law.

Article 7 A law enforcement officer with direct interest relationship or other relationships with a case, which may affect the fair law enforcement, shall be disqualified.

A party believing that a law enforcement officer has direct interest relationship or other relationships with a case and may affect the fair law enforcement shall have the right to apply for disqualification.

Where a party applies for disqualification, the cyberspace affairs department shall conduct review in accordance with the law, and the person in charge of the cyberspace affairs department shall make a decision. Before a decision is made, the investigation shall not be suspended.

Chapter II Jurisdiction and Application

Article 8 Administrative penalties shall be imposed by the cyberspace affairs departments at places where the unlawful behaviors occur, except as otherwise prescribed by laws, administrative regulations, and departmental rules.

“Places where the unlawful behaviors occur” include the perpetrator's relevant service licensing place or place of recordation, the principal place of business and place of registration, the places where the website founder, administrator and users are located, the network access place, the place where the server is located, and the places where computers and other terminal facilities are located, among others.

Article 9 The cyberspace affairs departments at or above the county level shall, according to their functions and powers, have jurisdiction over the administrative penalty cases within their respective administrative regions, except as otherwise prescribed by laws and administrative regulations.

Article 10 An unlawful behavior of a party, over which two or more cyberspace affairs departments have jurisdiction, shall fall under the jurisdiction of the cyberspace affairs department that firstly files the case.

Where two or more cyberspace affairs departments have disputes over jurisdiction, it shall be resolved through negotiation, and if negotiations fail, a request shall be submitted to the cyberspace affairs department at the next common higher level for designation of jurisdiction; and the cyberspace affairs department at the next common higher level may directly designate jurisdiction as well.

Article 11 When deeming necessary, the cyberspace affairs department at a next higher level may directly handle cases under the jurisdiction of the cyberspace affairs departments at lower levels and may also transfer cases under its own jurisdiction to the cyberspace affairs departments at lower levels for handling. Where a case shall be under the jurisdiction of a cyberspace affairs department at a higher level as specifically prescribed in the laws, administrative regulations and department rules, the cyberspace affairs department at a higher level shall not transfer the case to any cyberspace affairs department at a lower level.

The cyberspace affairs department at lower levels that are unable to exercise jurisdiction for cases over which they have jurisdiction due to special reasons may request the cyberspace affairs departments at higher levels for jurisdiction or designation of jurisdiction.

Where a cyberspace affairs department at or below districted city level finds that an administrative penalty case under its jurisdiction involves national security and other circumstances, it shall report to the cyberspace affairs department at the next higher level, and file a request with the cyberspace affairs department at the next higher level for jurisdiction, if necessary.

Article 12 The cyberspace affairs department finding that it does have no jurisdiction over a case shall transfer in a timely manner the case in question to the cyberspace affairs department with jurisdiction.

The cyberspace affairs department to which a case is transferred shall submit a letter to the cyberspace affairs department transferring the case in a timely manner to notify the case handling results; and the cyberspace affairs department deeming that the transfer is inappropriate shall submit a request to the cyberspace affairs department at the common next higher level for designated jurisdiction, but shall not transfer the case once again on its own.

Article 13 A cyberspace affairs department at a higher level shall, within 10 working days of receipt of a jurisdiction dispute or a request for instructions for designated jurisdiction, make a decision of designated jurisdiction and notify the cyberspace affairs departments at lower levels in writing.

Article 14 A cyberspace affairs department finding that a case is subject to the jurisdiction of another administrative authority shall transfer the case to relevant administrative authority according to law.

A cyberspace affairs department finding that an unlawful behavior is suspected of a crime shall transfer the case to the judicial authority in a timely manner. If the judicial authority decides to file a case, the cyberspace affairs department shall complete the handover formalities in a timely manner.

The cyberspace affairs departments shall strengthen coordination and cooperation with the judicial authorities, establish and improve their case transfer systems, strengthen the transition of transfer and reception of evidence materials, and improve the case handling status notification mechanism.

Article 15 A cyberspace affairs department making a decision on administrative penalty, such as lowering the qualification level or revoking the license certificate that shall be made by the original licensing and approving department according to law, shall transfer the evidence obtained and the relevant materials to the original licensing and approving department for decision on whether to lower the qualification level or revoke a license certificate.

Article 16 No administrative penalties of twice or more fines shall be imposed upon a same unlawful behavior committed by a party. Where a penalty of fine shall be imposed upon as the same illegal act violates multiple laws and regulations, penalty shall be given according to the provisions on the higher fine.

Chapter III Administrative Penalty Procedures

Section 1 Case Filing

Article 17 The cyberspace affairs departments shall investigate and handle the following matters in a timely manner and fill out a Case Source Registration Form:

(1) Case clues are found in supervision and inspection.

(2) A natural person, a legal person or another organization files a complaint, petition or tip-off.

(3) A case is assigned by a cyberspace affairs department at a higher level or requested to be investigated and handled by a cyberspace affairs department at a lower level.

(4) Transfer by relevant authorities.

(5) Found by other methods and channels.

Article 18 To file a case of administrative penalties, the following conditions shall be met:

(1) Administrative penalties shall be imposed according to law, if there are behaviors suspected of violating laws, administrative regulations, and departmental rules.

(2) It falls under the jurisdiction of the department.

(3) It is within the statutory time limit of imposing administrative penalties.

Where the conditions are met, an Approval Form for Filing shall be completed, relevant materials shall be annexed and be submitted to the person in charge of the cyberspace affairs department for approval within seven working days, and two or more law enforcement officers shall be assigned to undertake the case. Under special circumstances, an extension of 15 working days may be granted for filing.

For the complaints, petitions and tip-offs that are not approved for filing, the relevant information on disapproving filing shall be recorded and retained in writing.

Where the cases transferred by other authorities are disapproved for filing, the authorities transferring the cases shall be notified in writing.

Where a case is disapproved for filing or is canceled after filing, the undertaker shall make an Approval Form for Disapproval of Filing or an Approval Form for Canceling A Case after Filing and submit it to the person in charge of the cyberspace affairs department for approval.

Section 2 Investigation and Evidence-Taking

Article 19 Investigation into and evidence-taking for cases by the cyberspace affairs departments shall be conducted by law enforcement officers with the qualifications for administrative law enforcement. There shall not be less than two law enforcement officers who shall produce their law enforcement certificates to the party or relevant persons. If necessary, professionals may be hired to provide assistance.

Where evidence is collected and obtained from a party to a case for the first time, the party shall be notified of the right to apply for disqualification of law enforcement persons.

Where evidence is collected and obtained from a relevant entity or individual, the entity or individual shall be notified of the obligation to faithfully provide evidence. The persons investigated and the relevant personnel shall truthfully answer questions, offer assistance and cooperation, and provide the information issued by network operators, the information issued by users, the log information and other relevant materials that shall be kept according to law in a timely manner, and shall not obstruct or disturb the investigation into cases.

Article 20 If a cyberspace aff......