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Provisions on Reference of Suspected Criminal Cases by
Administrative Law-enforcement Organs
Full text
Article 1 These Provisions are formulated for the purposes of ensuring timely reference of suspected criminal cases by administrative law-enforcement organs to public security organs, punishing crimes of disrupting the order of the socialist market economy, crimes of obstructing the administration of public order and other crimes according to law, and safeguarding the smooth progress of socialist construction.
Article 2 Administrative law-enforcement organs as referred to in these Provisions mean the administrative organs which, according to the provisions of laws, regulations or rules, have powers to administratively punish acts of disrupting the order of the socialist market economy, acts of obstructing the administration of public order and other illegal acts, etc., and the organizations that are authorized by laws and regulations to exercise the power to administer public affairs and impose administrative penalties within the scope of power as authorized by laws and regulations.
Article 3 Where, in the course of legal investigation into and punishment of illegal acts, discovering that the amount of money involved, the circumstances or the consequences of illegal acts, in accordance with the provisions of the Criminal Law on crimes of disrupting the order of the socialist market economy, crimes of obstructing the administration of public order and other crimes, the judicial interpretations of the Supreme People's Court and the Supreme People's Procuratorate on crimes of disrupting the order of the socialist market economy, crimes of obstructing the administration of public order and other crimes, the provisions of the Supreme People's Procuratorate and the Ministry of Public Security on criteria of prosecution of economic criminal cases, are suspected to constitute crimes and shall be investigated for criminal liabilities according to law, administrative law-enforcement organs must refer the cases to public security organs according to these Provisions.
Article 4 In the course of investigating into and punishing illegal acts, administrative law-enforcement organs must well preserve evidences related to illegal acts they collect.
Administrative law-enforcement organs shall truthfully make out lists of case-related articles they collect and dispose of these articles in accordance with the provisions of the State. For perishable articles, deteriorative articles and other articles that are inappropriate or uneasy to be preserved, necessary measures for keeping evidences shall be taken. The inspection or verification over case-related articles, if necessary, shall be carried out by the official inspecting or verifying institutions that shall issue reports of inspection or conclusions of verification.
Article 5 For a suspected crime case which shall be referred to a public security organ, an administrative law-enforcement organ shall promptly designate two or more than two administrative law-enforcement officers to form a group specially responsible for the case, which shall, after ascertaining the facts, prepare a written report of reference of the suspected criminal case and submit it to the highest
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responsible person or the responsible person in charge of the work of the administrative law-enforcement organ for examination and approval.
The highest responsible person or the responsible person in charge of the work of the administrative law-enforcement organ shall, within three days from the date of receiving the report, make a decision to approve or disapprove the reference. If approved, the reference to the public security organ at the same level shall be made within 24 hours; if disapproved, the reasons thereof shall be placed on record.
Article 6 An administrative law-enforcement organ shall, in referring a suspected criminal case to the public security organ, attach the following documents:
(1) The report of reference of the suspected criminal case; (2) The report of investigation into the suspected criminal case; (3) The list of case-related articles; (4) The report of related inspection or conclusions of related verification; and (5) Other documents related to the suspected criminal case.
Article 7 The public security organ shall put its signature on receipt of the report of reference of the suspected crime case by the administrative law-enforcement organ. If the case does not belong to the jurisdiction of the public security organ, it shall, within 24 hours, refer the case to the organ having the jurisdiction, and notify, in writing, the administrative law-enforcement organ that refers the case.
Article 8 The public security organ shall, within three days from the date of receiving the suspected crime case referred by the administrative law-enforcement organ, examine the case in accordance with the Criminal Law, the Criminal Procedure Law, the criteria of the People' Court and the People's Procuratorate for filing cases and the provisions of the Ministry of Public Security on procedures for handling criminal cases by public security organs. If it is believed that there are facts of crime, criminal responsibility shall be investigated and the case shall be filed according to law, it shall, in writing, notify the administrative law-enforcement organ that refers the case. If it is believed that there are no facts of crime or facts of crime are obviously minor, criminal responsibility is not demanded and the case is not filed according to law, it shall give reasons therefore and notify, in writing, the administrative law-enforcement organ that refers the case, and return the case-related documents. Article 9 The administrative law-enforcement organ which, after receiving the written notice of the public security organ for not filing the case, deems that the public security organ shall file the case according to law, may, within three days from the date of receiving the said notice, request the public security organ which has decided not to file the case for reconsideration, or suggest the people's procuratorate for supervision over the case-filing according to law.
The public security organ which has decided not to file the case shall, within three days from the date of receiving the request of the administrative law-enforcement organ for reconsideration, make a decision to file or not to file the case, and notify, in writing, the administrative law-enforcement organ that refers the case. If the administrative law-enforcement organ that refers the case still disagrees with the reconsideration decision of the public security organ for not filing the case, it shall, within three days from the date of receiving the written notice of reconsideration decision, suggest the people's procuratorate for supervision over the case-filing according to law.
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The public security organ shall accept the case-filing supervision conducted by the people's procuratorate according to law.
Article 10 The administrative law-enforcement organ shall handle the case which is not filed by the decision of the public security organ according to law. Where laws, regulations or rules provide that the case shall be subject to administrative penalties, such penalties shall be given according to law. Article 11 If a suspected crime case shall be referred to the public security organ, the administrative law-enforcement organ shall not substitute administrative penalties for reference.
The enforcement of an administrative penalty such as warning, ordering to suspend production or business, suspension or revocation of a permit, or suspension or revocation of a business license made by the administrative law-enforcement organ before it refers the suspected criminal case to the public security organ shall not be ceased.
Where the administrative law-enforcement organ has already imposed a fine on the party concerned in accordance with the provisions of the Law on Administrative Penalty before it refers the suspected criminal case to the public security organ, the people's court shall, when it sentences the party concerned to fine, deduct the amount already imposed according to law.
Article 12 When a case is filed by the public security organ, the administrative law-enforcement organ shall, within three days from the date of receiving the written notice of filing the case, refer case-related articles and other documents to the public security organ, and accomplish the delivery formalities. Where laws and administrative regulations provide otherwise, such provisions shall prevail.
Article 13 The public security organ shall, if believing that, through examination over the illegal act, there is no facts of crime or believing that, through investigation after filing the case, the facts of crime are obviously minor and criminal responsibility is not demanded but administrative responsibility shall be investigated according to law, immediately refer the case to the administrative law-enforcement organ at the same level. The administrative law-enforcement organ concerned shall handle the case according to law.
Article 14 In referring suspected criminal cases, administrative law-enforcement organs shall accept supervision conducted according to law by people's procuratorates and supervisory organs. Where an administrative law-enforcement organ, in violation of these Provisions, fails to refer a suspected criminal case which shall be referred to the public security organ, any units and individuals shall have the right to report it to the people's procuratorate, supervisory organ or administrative law-enforcement organ at the higher level.
Article 15 Where an administrative law-enforcement organ, in violation of these Provisions, conceals, privately divides or destroys any case-related articles, the people's government at the same or higher level or the administrative law-enforcement organ at the higher level that has the vertical leadership power implemented shall, in the light of the seriousness of the circumstances, give administrative sanctions above demotion to the highest responsible person of the administrative law-enforcement organ; and if a crime is constituted, criminal responsibility shall be investigated according to law.
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The persons who are directly in charge and the other persons who are directly responsible for the act listed in the preceding paragraph shall be given administrative sanctions by applying mutatis mutandis the provisions of the preceding paragraph; and if a crime is constituted, criminal responsibility shall be investigated according to law.
Article 16 Where an administrative law-enforcement organ, in violation of these Provisions, fails to refer a case to the public security organ within the specified period of time, the people's government at the same or higher level or the administrative law-enforcement organ at the higher level that has the vertical leadership power shall order it to make reference within a given period of time, and in the light of the seriousness of the circumstances, give administrative sanctions above demerit to the highest responsible person or the responsible person in charge of the work of the administrative law-enforcement organ and if a crime is constituted, criminal responsibility shall be investigated according to law.
Where an administrative law-enforcement organ, in violation of these Provisions, fails to refer a case that shall be referred to the public security organ or substitute administrative penalties for reference, the people's government at the same or higher level or the administrative law-enforcement organ at the higher level that has the vertical leadership power shall order it to make corrections and circulate a notice of criticism; if it refuses to make corrections, the highest responsible person or the responsible person in charge of the work of the administrative law-enforcement organ shall be given administrative sanctions above demerit; and if a crime is constituted, criminal responsibility shall be investigated according to law.
The persons who are directly in charge and the other persons who are directly responsible for the acts listed in the paragraphs 1 and 2 of this Article shall be given administrative sanctions respectively by applying mutatis mutandis the provisions of the preceding two paragraphs; and if a crime is constituted, criminal responsibility shall be investigated according to law.
Article 17 Where a public security organ, in violation of these Provisions, refuses to accept a suspected criminal case referred by an administrative law-enforcement organ or fails to make a decision of filing or not filing the case within the specified period of time, the people's procuratorate shall conduct the case-filing supervision and in addition, the people's government at the same or higher level shall order the public security organ to make corrections and in the light of the seriousness of the circumstances, give administrative sanctions above demerit to the highest responsible person of the organ; and if a crime is constituted, criminal responsibility shall be investigated according to law.
The persons who are directly in charge and the other persons who are directly responsible for the acts listed in the preceding paragraph shall be given administrative sanctions by applying mutatis mutandis the provisions of the preceding paragraph; and if a crime is constituted, criminal responsibility shall be investigated according to law.
Article 18 An administrative law-enforcement organ that, in the course of investigation into and punishment on an illegal act according to law, discovers any embezzlement or bribery, any dereliction of duty by a functionary of the State or any infringement upon the right of person and democratic rights of a citizen by a functionary of the State organ, thus being suspected to constitute a crime, shall immediately
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refer the case to the people's procuratorate by applying mutatis mutandis these Provisions. Article 19 These Provisions shall be effective as of the date of promulgation.
行政执法机关移送涉嫌犯罪案件的规定
正文
第一条 为了保证行政执法机关向公安机关及时移送涉嫌犯罪案件，依法惩罚破坏社会主义市场经济秩序罪，妨碍社会管理秩序罪以及其它罪，保障社会主义建设事业顺利进行，制定本规定。
第二条 本规定所称行政执法机关，是指依照法律、法规或者规章的规定，对破坏社会主义市场经济秩序、妨碍社会管理秩序以及其它违法行为具有行政处罚权的行政机关，以及法律、法规授权具有管理公共事务职能、在法定授权范围内实施行政处罚的组织。
第三条 行政执法机关在依法查处违法行为的过程中。发现违法事实涉及的金额、违法事实的情节，违法事实造成的后果等，根据刑法关于破坏社会主义市场经济秩序罪，妨碍社会管理秩序罪等罪的规定和最高人民法院、最高人民检察院关于破坏社会主义市场经济秩序罪、妨碍社会管理秩序罪等罪的司法解释以及最高人民检察院、公安部关于经济犯罪案件的追诉标准等规定，涉嫌构成犯罪，依法需要追究刑事责任的，必须依照本规定向公安机关移送。
第四条 行政执法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。行政执法机关对查获的涉案物品，应当如实填写涉案物品清单，并按照国家有关规定予以处理。对易腐烂、变质等不宜或者不易保管的涉案物品，应当采取必要措施，留取证据；对需要进行检验、鉴定的涉案物品，应当由法定检验、鉴定机构进行检验、鉴定，并出具检验报告或鉴定结论。
第五条 行政执法机关对应当向公安机关移送的涉嫌犯罪案件，应当立即指定2名或者2名以上行政执法人员组成专案组专门负责，核实情况后提出移送涉嫌犯罪案件的书面报告，报经本机关正职负责人或主持工作的负责人审批。行政执法机关正职负责人或主持工作的负责人应当自接到报告之日起3日内作出批准移送或者不批准移送的决定。决定批准的，应当在24小时内向同级公安机关移送；决定不批准的，应当将不予批准的理由记录在案。
第六条 行政执法机关向公安机关移送涉嫌犯罪案件，应当附有下列材料：
（一）涉嫌犯罪案件移送书；
（二）涉嫌犯罪案件情况的调查报告；
（三）涉案物品清单；
（四）有关检验报告或者鉴定结论；
（五）其它有关涉嫌犯罪的材料。
第七条 公安机关对行政执法机关移送的涉嫌犯罪案件，应当在涉嫌犯罪案件移送书的回执上签字；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，并书面告知移送案件的行政执法机关。
第八条 公安机关应当自接受行政执法机关移送的涉嫌犯罪案件之日起3日内，依照刑法、刑事诉讼法以及最高人民法院、最高人民检察院关于立案标准和公安部关于公安机关办理刑事案件程序的规定，对所移送的案件进行审查。认为有犯罪事实，需要追究刑事责任，依法决定立案的，应当书面通知移送案件的行政执法机关；认为没有犯罪事实，或者犯罪事实显著轻微，不需要追究刑事责任，依法不予立案的，应当说明理由，并书面通知移送案件的行政执法机关，相应退回案卷材料。
第九条 行政执法机接到公安机关不予立案的通知后，认为依法应当由公安机关决定立案的，可以自接到不予立案通知书之日起3日内，提请作出不予立案决定的公安机关复议，也可以建议人民检察院依法进行立案监督。作出不予立案决定的公安机关应当自收到行政执法机关提请复议的文件之日起3日内作出立案或者不予立案的决定，并书面通知移送案件的行政执法机关。移送案件的行政执法机关对公安机关不予立案的复议决定仍有异议的，应当自接到复议通知书之日起3日内建议人民检察院依法进行立案监督。公安机关应当接受人民检察院依法进行的立案监督。
第十条 行政执法机关对公安机关决定不予立案的案件，应当依法作出处理。其中，依照有关法律、法规或者规章的规定应当给予行政处罚的，应当依法实施行政处罚。
第十一条 行政执法机关对应当向公安机关移送的涉嫌犯罪案件，不得以行政处罚代替移送。行政执法机关向公安机关移送涉嫌犯罪案件前已经作出的警告，责令停产停业，暂扣或者吊销许可证、暂扣或者吊销营业执照的行政处罚决定，不停止执行。依照行政处罚法的规定，行政执法机关向公安机关移送涉嫌犯罪案件前，已经依法给予当事人罚款的，人民法院判处罚金时，依法折抵相应罚金。
第十二条 行政执法机关对公安机关决定立案的案件，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它材料移交公安机关，并办结交接手续；法律。行政法规另有规定的，依照其规定。
第十三条 公安机关对发现的违法行为，经审查，没有犯罪事实，或者立案侦查后认为犯罪事实显著轻微，不需要追究刑事责任，但依法应当追究行政责任的，应当及时将案件移送同级行政执法机关，有关行政执法机关应当依法作出处理。
第十四条 行政执法机关移送涉嫌犯罪案件，应当接受人民检察院和监察机关依法实施的监督。任何单位和个人对行政执法机关违反本规定，应当向公安机关移送涉嫌犯罪案件而不移送的，有权向人民检察院、监察机关或者上级行政执法机关举报。
第十五条 行政执法机关违反本规定，隐匿、私分、销毁涉案物品的，由本级或者上级人民政府，或者实行垂直管理的上级行政执法机关，对其正职负责人根据情节轻重，给予降级以上的行政处分；构成犯罪的，依法追究刑事责任。对前款所列行为直接负责的主管人员和其它直接责任人员，比照前款的规定给予行政处分；构成犯罪的，依法追究刑事责任。
第十六条 行政执法机关违反本规定，愈期不将案件移送公安机关的，由本级或者上级人民政府，或者实行垂直管理的行政执法机关，责令限期移送，并对其正职负责人或者主持工作的负责人根据情节 轻重，给予行政记过以上的行政处分；构成犯罪的依法追究刑事责任。行政执法机关违反本规定，对应当向公安机关移送的案件不移送，或者以行政处罚代替移送的，由本级或者上级人民政府，或者实行垂直管理的上级行政执法机关，责令改正，给予通报；拒不改正的，对其正职负责人或者主持工作的负责人给予记过以上的行政处分；构成犯罪的，依法追究刑事责任。对本条第一款、第二款所列行为直接负责的主管人员和其它直接责任人员，分别比照前两款的规定给予行政处分；构成犯罪的，依法追究刑事责任。
第十七条 公安机关违反本规定，不接受行政执法机关移送的涉嫌犯罪案件，或者愈期不作出立案或不予立案决定的，除由人民检察院依法实施立案监督外，由本级或者上级人民政府责令改正，对其正职负责人根据情节轻重，给予记过以上的行政处分；构成犯罪的，依法追究刑事责任。
对前款所列行为直接负责的主管人员和其它直接责任人员，比照前款的规定给予行政处分；构成犯罪的依法追究刑事责任。
第十八条 行政执法机关在依法查处违法行为的过程中，发现贪污贿赂、国家工作人员渎职或者国家机关工作人员利用职权侵犯公民人身权利和民主权利等违法行为，涉嫌构成犯罪的，应当比照本规定及时将案件移送人民检察院。
第十九条 本规定自公布之日起实行。