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深圳市预防职务犯罪条例 Regulation of Shenzhen Municipality on Preventing the Crime by Taking Advantage of Duty

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(Adopted at the 35th meeting of the Standing Committee of the Third Shenzhen Municipal People‘s Congress on December 30th, 2004. Adopted at the 16th meeting of the Standing Committee of the 10th Guangdong Provincial People's Congress on January 19, 2005)

颁布日期:20050202  实施日期:20050401  颁布单位:深圳市人大常委会

  Chapter 1 General Provisions

  Article 1 In order to enhance and standardize the prevention of crime by taking advantage of duty, prevent and decrease the crime by taking advantage of duty, ensure and promote the state functionaries to fulfill their duties justly, honestly and loyally, these regulations are formulated according to the Constitution, relevant law and regulations, in combination of the actual situations of Shenzhen.

  Article 2 These regulations shall apply to the prevention of the crime by taking advantage of duty within the administration area of Shenzhen.

  The crime by taking advantage of duty, which shall be prevented in these regulations, refers to the crime of corruption and bribery by state functionary, the crime of malfeasance by civil servant, the crime of infringement upon citizen‘s rights of person and democratic rights by taking advantage of duty, and other crime by taking advantage of duty, which are stipulated by the Criminal Law of the People’s Republic of China.

  Article 3 To prevent the crime by taking advantage of duty, we shall comply with the following principles: basing upon education, deepening reform, perfecting system, enhancing supervision, seeking both temporary and permanent solutions, governing comprehensively, carrying out punishment and prevention simultaneously, and attaching importance on prevention, set up and perfect the system of preventing and punishing the crime by taking advantage of duty.

  Article 4 The work of preventing the crime by taking advantage by duty shall be contained in the overall planning of economic and social development, and in the working mechanism that the establishment units exercising their respective duties according to law, the special organs directing, urging and supervising, relevant functional departments assisting, and all aspects of the society participating.

  Chapter 2 Prevention Institution

  Article 5 The municipal and district working committees of preventing the crime by taking advantage of duty (hereinafter referred to as the prevention working committee) shall be the discussing and coordinating institutions to organize the coordination of the work of preventing the crime by taking advantage of duty within this administrative region. The working committee of prevention has the following functions and duties:

  1. organizing and coordinating the work of preventing the crime by taking advantage of duty in this administrative region, and working out the countermeasures and measures to prevent the crime by taking advantage of duty;

  2. organizing and developing the propaganda and education concerning the prevention of crime by taking advantage of duty, fighting against corruption and advocating honesty;

  3. evaluating all units‘ working of preventing the crime by taking advantage of duty, and commending the advanced collectiveness and individual in the prevention of the crime by taking advantage of duty;

  4. studying and deciding other issues concerning the prevention of the crime by taking advantage of duty.

  The prevention working committee shall be composed of the persons chiefly in charge in the prosecutorial organ, the adjudication organ, the departments of auditing, public security, judicial administration, personnel and finance, and other relevant organs and organizations.

  The funds required by the propaganda and education of preventing the crime by taking advantage of duty shall be listed in the financial budgets at all levels, and shall be used for the specified purpose.

  Article 6 The prevention working committee shall establish a specialist consultation committee for preventing the crime by taking advantage of duty to provide consultation service for preventing the crime by taking advantage of duty. The specialist consultation committee shall have the following functions and duties:

  1. raising consultation opinions on preventing the crime by taking advantage of duty when the government or relevant department drafts or lays down the law, regulations, policies or important reforming measures on economic, social or cultural development;

  2. studying and testifying the system and measures to prevent the crime by taking advantage of duty in the key industries and fields of this municipality, and raising improvement ideas and suggestions;

  3. raising consultation opinions on the special prevention work in the important economic activities concerning the state-owned properties;

  4. providing other consultation service for preventing the crime by taking advantage of duty.

  The specialist consultation committee for preventing the crime by taking advantage of duty shall be composed of the specialists in the fields of politics, economy, law, finance, construction, auditing, accounting and environment protection in the administrative region of this municipality.

  Article 7 The prosecutorial organ shall undertake the daily work of the prevention working committee at the same level, including:

  1. directing and supervising relevant units to develop the prevention of the crime by taking advantage of duty;

  2. investigating and analyzing the happening reasons, characteristics and rules of the crime by taking advantage of duty, and researching the countermeasures and measures for preventing the crime by taking advantage of duty;

  3. organizing the inspection and evaluation of the work of preventing the crime by taking advantage of duty, summarizing and popularizing the experiences and practices in the work of preventing the crime by taking advantage of duty;

  4. developing other work concerning the prevention of the crime by taking advantage of duty.

  Chapter 3 Prevention Liability

  Article 8 The government departments, state-owned enterprises, public institutions and people‘s organizations shall bring the prevention of the crime by taking advantage of duty into the unit’s working target management, implement the leader responsibility system, and exercise the following functions and duties:

  1. establishing, perfecting and implementing strictly the following systems, such as the personnel selection and appointment, regular rotation of important post, management of finance and economics, economic responsibility auditing of the unit‘s person in charge in term of office and responsibility investigation;

  2. drawing up working plans and specific measures on the prevention of the crime by taking advantage of duty in combination with actual circumstances, directing, supervising and inspecting the work of preventing the crime by taking advantage of duty to subordinate units;

  3. carrying out legal, disciplinary and moral educations to the units‘ working staff;

  4. referring the case or clew, which is suspected of being involved in the crime by taking advantage of duty, to the prosecutorial organ to deal with in time;

  5. other functions and duties of preventing the crime by taking advantage of duty.

  Article 9 The government and its functional departments shall administer by law, establish and perfect the working systems of executive decision, administration examination and approval, standardize working procedures, make government affairs public, and enhance the transparency of administrative activities.

  Article 10 The state organ, which exercises the power of criminal investigation, prosecution or adjudication, shall comply with and apply the law and regulations strictly, carry out judicial administration justly, make public of its duty scope, case handling procedures and complaining approach, and accept the social supervision consciously.

  The working staff of the state organs stipulated above may not contact privately with any party concerned, his deputy or consignee, designate or introduce any service personnel of intermediary organ to the party concerned, or recommend relevant business to the service personnel of intermediary organ.

  Article 11 State-owned enterprises shall comply with the law, regulations, and relevant rules made by the supervision and administration department of state-owned property, make its enterprise affairs public, perfect its systems of production, operation and finance management, and set up the supervision and restriction mechanisms on important investment, system transformation, capital arrangement, other decision and implementation of important economic activity.

  The main person in charge of state-owned enterprise shall comply with and implement strictly relevant regulations and systems concerning the enterprise‘s operation decision making, allocation, finance, bidding invitation or tender submission of project.

  Article 12 State functionaries shall comply with the law, regulations, rules and other disciplinary rules relating to their duties, accept the education and supervision on preventing the crime by taking advantage of duty consciously, and may not seek for illegal interests by taking advantage of powers or duties.

  The state functionary, who is at leading post, may not commit any one of the following activities:

  1. seeking for illegal interests by taking the chance of recruiting, employing or selecting the working staff;

  2. interfering the judicial department or administrative law-enforcement department in the duty performance by law, by taking advantage of his influence of power or duty;

  3. making a decision arbitrarily or interfering in important economic activity, such as the investment or construction of important project, capital arrangement or use, bidding invitation or tender submission of construction project, assignment or transference the land-use right, or purchase;

  4. seeking private interests for his spouse, child or relative, conniving his spouse, child, relative or working staff around him to commit the activity in violation of discipline or law, or shielding them from being discovered when they commit the activity;

  5. other activity in violation of discipline or law by taking advantage of duty.

  Article 13 Units and individuals shall comply with the law, regulations, rules and moral standards. No unit or individual may seek for interests or advantage in competition by illegal way, or commit any activity, which causes damage to the honesty of state functionary‘s performance of duty, or hinders the prevention of the crime by taking advantage of duty.

  Chapter 4 Prevention Measures

  Article 14 The prosecutorial organ, the administrative departments of supervision and auditing adopt the following measures by law in the prevention of the crime by taking advantage of duty:

  1. analyzing and studying the unit‘s management system, where a case arises, directing, urging and supervising it to establish and perfect relevant system, and standardize management on the basis of the investigation and prosecution result to the activity in violation of discipline, law or a crime by taking advantage of duty;

  2. requiring relevant department or person to explain and describe the problem involved in the prevention of the crime by taking advantage of duty, and provide relevant information and material according to the facts;

  3. ordering relevant department or person to stop the activity in violation of law, regulations, rules or administrative disciplines;

  4. suggesting relevant unit to removal the person, who is suspected of violating law, regulations, rules or other relevant provisions, from duty temporarily.

  Article 15 The prosecutorial organ and the departments of supervision and auditing shall develop special prevention in important economic activities, such as the assignment or transference of the use right of state-owned land, government procurement, construction project with governmental investment, transference of the property right of state-owned enterprise, and the bidding invitation or tender submission of construction project.

  Article 16 The prosecutorial organ, adjudication organ, the department of supervision or auditing shall put forward written prosecutorial, judicial, supervisory or auditing advice to the unit, which has the problem of imperfect system or disordered management, when performing its duty by law, copy the advice to the unit‘s superior organ or competent department at the same time, urge and supervise the unit to rectify.

  The unit, which receives the advice, shall rectify seriously and submit a written report about the rectification to the advising organ within 30 days upon receiving the advice.

  Article 17 The auditing organ shall strengthen the auditing to the government procurement, important project with governmental investment, administrative charge, use and management of special fund and the reformation of state-owned enterprise. The auditing organ shall publicize the auditing result to the society and accept social supervision according to relevant provisions.

  Article 18 The educational institution of cadre and the competent department of personnel shall arrange the lesson of preventing the crime by taking advantage of duty in the training for state functionaries, and enhance the legal education, moral education and the education of fighting against corruption and advocating honesty.

  Universities, colleges, training schools, middle schools and elementary schools shall take the education of fighting against corruption and advocating honesty as a part of the legal education. Relevant institutions of education and research shall strengthen the research on the countermeasures of preventing the crime by taking advantage of duty.

  Relevant government departments and trade self-disciplined organizations shall strengthen the legal education to the operation managers of non-state-owned enterprises or intermediary organs, and individual units of industry and commerce, bring up their consciousness of operating by law, good faith and self-discipline.

  Article 19 News media of broadcasting, television, newspapers and periodicals shall propagandize and report the prevention of the crime by taking advantage of duty in time, and create the environment of public opinion of honesty and good faith by all means.

  News media shall carry out the supervision of public opinion to state functionaries‘ performance of duty, and be responsible for the propaganda report. Relevant unit and state functionary shall accept the news media’s supervision consciously.

  News reporters have the rights of gathering news materials, raising criticisms and suggestions and obtaining the protection of personal safety when propagandizing or reporting the prevention of the crime by taking advantage of duty.

  In case that the problem reported or reflected by the news media is suspected of being involved in the crime by taking advantage of duty, relevant department shall investigate in time, and may inform the news media of the investigation and settlement result concerning the problem with great effect.

  Article 20 Units and individuals have the right of raising opinions or suggestions to relevant unit on the prevention of the crime by taking advantage of duty. The relevant unit shall study and deal with the opinion or suggestion in time, and give written reply to the written opinion or suggestion.

  Units and individuals have the right to report the activity, which is suspected of being involved in the crime by taking advantage of duty, to the prosecutorial organ, supervisory department or other relevant department. The reporter shall list the main points and corresponding evidences of his report. The prosecutorial organ, supervisory department or other relevant department shall investigate and deal with the onymous report according to relevant regulations, and inform the reporter of the investigation result within 3 months upon receiving the report.

  The prosecutorial organ, supervisory department and other relevant department shall keep secret for the reporter, and may not disclose or implicate the reporter‘s identity without his consent.

  Article 21 No unit or individual may retaliate against the reporter.

  In case that the reporter‘s or his relative’s personal or property safety is threatened because of the report, the reporter may ask the department of public security for protection. The department public security shall adopt corresponding protection measures when necessary.

  In case that the report turns out to be true, and prevents state property from damage, reduces the loss of state property or acts a key part in the detection of important crime by taking advantage of duty, relevant organ shall reward the reporter.

  Article 22 Any unit or individual, who commits unfair competition, illegal or criminal activity by means of bribing, cheating or issuing false report in the market economic activity, such as the assignment or transference of the use right of state-owned land, government procurement, transference of the property right of state-owned enterprise, bidding invitation or tender submission of construction project, shall be restricted in a certain period by relevant department from participating the economic activities in relevant fields of this municipality according to regulations.

  Chapter 5 Liability Investigation

  Article 23 The state organ, state-owned enterprise, public institution or people‘s organization, which commits any one of the following activities, shall be imposed circulated criticism and ordered to rectify in a limited time by its superior organ or competent department. The unit’s person chiefly in charge and person directly liable shall be imposed administrative penalty by the supervision department or competent department if the circumstance is serious. The criminal responsibility shall be investigated for if a crime is constituted.

  1. disturbing, hindering or refusing to cooperate with the prosecutorial organ, the supervision or auditing department to develop the prevention of the crime by taking advantage of duty;

  2. refusing to make correction without proper reason after receiving the prosecutorial, judiciary, supervisory or auditing advice, and causing the crime by taking advantage of duty in the unit;

  3. doing not investigate or dealing with the activity by taking advantage of duty in violation of discipline or law, which is committed by the person of its own unit or system, doing not transfer the clew concerning the crime by taking advantage of duty to the prosecutorial organ for investigation and settlement, or concealing and doing not report the clew intentionally;

  4. hindering the news media to develop the supervision of public opinion by law and causing bad effect;

  5. retaliating against the reporter, or causing the reporter to be retaliated because it does not protect the reporter according to law;

  6. other activity in violation of these regulations.

  Article 24 Any state functionary, who is at leading post, shall take the blame and resign under any one of the following circumstances:

  1. doing not perform his prevention duty, causing the person of his unit to repeatedly commit the activity by taking advantage of duty in his term of office, which violates the discipline or law seriously and causes bad effect;

  2. conniving his spouse, child or working staff around him to commit the activity in violation of discipline or law by taking advantage of his duty, or shielding them from being discovered when committing the activity, and causing bad effect.

  Article 25 Any state functionary, who interferes the market economic activity, such as the bidding invitation or tender submission of construction project, use right assignment of operational land, exploitation or operation of real estate, shall be revoked his post or dismissed by relevant department according to corresponding regulations, and be investigated for corresponding legal responsibility according to law.

  Article 26 Any state functionary exercising the power of criminal investigation, prosecution or adjudication, who violates the provisions of Paragraph 2, Article 10 of these regulations, shall be imposed administrative or disciplinary penalty by the supervision department, relevant organization or his unit. The state functionary, who is elected or appointed by the municipal or district people‘s congress or the standing committee of people’s congress, shall be dealt with by the electing or appointing organ at the same level under legal procedures. The criminal responsibility shall be investigated for according to law if a crime is constituted.

  Article 27 Anyone, who frames other person by means of reporting, shall be investigated for corresponding relevant legal responsibility according to law.

  Article 28 In case that the prosecutorial organ, the supervision or auditing department does not perform its duty according to these regulations, the persons in charge with direct liability and other person directly liable shall be imposed administrative penalty by relevant department.

  The working staff of preventing the crime by taking advantage of duty, who abuses his authority, plays irregularities for favoritism, neglects his duty, engages in embezzlement, takes bribes or discloses secret, shall be imposed administrative penalty by the supervision department of competent department, and shall be investigated for criminal responsibility if a crime is constituted.

  Article 29 Other activity in violation of these regulations shall be dealt with by relevant department according to relevant law, regulations or provisions.

  Chapter 6 Supplementary Provisions

  Article 30 These regulations shall enter into effect as of April 1, 2005.

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