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| Implementing rules of the PRC on international...(6) |
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The investigatory authority and the members of the investigation group shall keep the commercial secrets of the person under investigation confidential. If the person under investigation finds the members of the investigation group disclose such commercial secrets and has sufficient evidence to support his assertion, he has the right to make a complaint to the investigatory authority. Article 55 The fo1lowing elements shal1 be considered before the investigatory authority decides that the person under investigation provides service at lower freight rates than normal and reasonable ones: (1) the freight rates level of most of the operaors within the industry who have the same scale of business as the person under investigation; (2) the reason of the freight rate level fixed by the person under investigation, including the composition of costs, the level of management and the level of profit and loss etc.; or (3) whether there is a focus on certain competitors for the purpose of repelling the competitors in the same industry. Article 56 The following elements shall be considered before the investigatory athority decides that there is any act detrimental to fair competition or any act detrimenta1 to the other party of the transaction: (1) to constitute obstacles to the free choice of carriers by the shippers; (2) to affect the normal shipment of cargo; or (3) to solicit cargo by offering secret rebate not being reflected by the bookkeeping, which seriously distorts the market competition rules. Article 57 Before the investigatory authority makes a conclusion on the investigation, a meeting for consulting the experts shall be held to evaluate the degree of detriment to fair competition or detriment to the other party of the transaction. The experts invited in the consultative meeting shall not have related interests with the investigation applicant or the person under investigation. Article 58 When the investigations are completed, the investigatory authority shall make a conclusion on the investigations and notify the investigation applicant and the person under investigation in writing: (1) if the basic facts are not tenable, the investigatory authority shall decide to terminate the investigations; (2) if the basic facts are tenable but not in substance detrimental to fair market competition, the investigatory authority shall decide not to take prohibitive or restrictive measures against the person under investigation; (3) if the basic facts are clear and in substance detrimenal to fair market competition, the investigatory authority shall, in accordance with the provisions in the Maritime Transportation Regulations, take prohibitive and restrictive measures against the person under investigation. Article 59 The party shall be informed of its right to have a hearing before the investigatory authority make a decision to take prohibitive and restrictive measures. If the party asks for the hearing, it shall apply in writing to the investigatory authority within 10 days after the service of the notice of the investigatory authority. If the party fails to make an application within the time limit, it is considered to have waived its right to have a hearing. Article 60 If an investigation is conducted on the cases specified in Article 38 of these Rules, the persons from the competent communications department of the peop1e’s government of the province, autonomous region or municipality directly under the Centra1 Government where the person under investigation registers his qualification of services shall be included in the investigation group. If there are unlawful practices as specified in subparagraph 3 of Article 38 of these Rules Which are in substance detrimental to the other party of the transaction or the competitors in the industry the investigatory authority can take the restrictive measures of restricting the person under investigation to develop his business within a certain period of time. CHAPTER SIX〓LEGAL LIABILITIES Article 61 If there is a violation of the provisions of the Maritime Transportation Regulations or these Rules which shall be penalized, the Ministry of Communications or its authorized competent communications department of the people’s government of the province, autonomous region or municipality directly under the Central Government shall impose the penalty in accordance with the provisions in Chapter VI of the Maritime Transportation Regulations and this Chapter. Article 62 If a foreign-invested representative office has one of the cases specified in Article 39 of these Rules, the Ministry of Communications or the competent communications department of the province, atonomous region or municipa1ity directly under the Central Government shall inform the relevant administrative deparment of the commerce and industry to impose the penalty in accordance with the provisions in paragraph 2, Article 52 of the Maritime Transportation Regulations. Article 63 If a liner conference agreement, a service operation agreement or a freight rate agreement fails to be filed with the Ministry of Communications as provided, the Ministry of Communications shall, in accordance with the provisions in Article 48 of the Maritime Transportation Regulations, impose penalty on the parey who shall file in accordance with Article 32 of these Rules. If the liner conference fails to file as provided, a penalty can be imposed on its members. Article 64 If the members in the investigation group violate the provisions by disclosing the secret information of the person under investigation, an administrative penalty shall be imposed. If the consequences are so severe as to violate the criminal law, a criminal penalty shall be pursued. CHAPTER SEVEN〓SUPPLEMENTARY PROVISIONS Article 65 The applicant can entrust its agent with handling the issues relating to permission or registration as provided in the Maritime Transportation Regulations or these Rules. If the agent is entrusted to handle the issues, a letter of entrustment shall be produced. A notary letter provided by a foreign applicant or investor shall be issued by the notary office or the attorney at the country where the applicant or investor is registered. The documents in writing specified in these Rules shall be in Chinese. If they are in any of other languages, a Chinese translation shall be attached thereto. Article 66 The requirements of the filing, the means and ways of filing Which are provided in the Maritime Transportation Regulations and these Rules shall be fulfilled in accordance with the rules provided by the Ministry of Communications. Article 67 The provisions in Chapter IV of the Maritime Transportation Regulations and Chater Four of these Rules are mutatis mutandis applicable to the investment into and operation of international shipping business and auxiliary businesses relating to international maritime transport in Chinese mainland by investors from Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan region. Article 68 The detailed rules relating to the tariff rate and negotiated rate filing provided in Article 20 of the Maritime Transportation Regulations shall be formulated by the Ministry of Communications. Article 69 If one engages in loadng and unloading, storage and warehousing of international shipments and international maritime container freight station and container yard services within port area, the relevant laws and regulations of the State on port management shall be complied with. Article 70 These Rules shall take effect as of March l, 2003. The Measures for Administration of International Shipping Service on April 11th, l985, the Provisions on International Shipping Agency Services on March 2nd, l990, the Provisions on International Liner Services on June 20th, l990, the Provisions on Administration of International Container Transportation at Sea of the People’s Republic of China on July 1st, 1992, the Measures for Administration of Representative Offices Established by Foreign Waterborne Transportation Enterprises on October 16th, l997 by the Ministry of Communications shall be repealed simultaneously. |
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