Interpretation on Several Issues Concerning the Application of Laws in Handling Cases (hereinafter referred to as the Legal Interpretation). There are 22 articles in the Interpretation, which clearly define the crime of producing and selling food that does not meet the safety standards and the crime of producing and selling toxic and harmful food for the first time.
Conviction and sentencing standards. The legal interpretation also details the conviction and sentencing of using processed foods such as "gutter oil" and illegally selling "lean meat".
The Supreme Court requires that criminals involved in legal interpretation can apply probation if they meet the conditions of probation, but they should be prohibited from engaging in food production, sales and related activities during the probation period.
There are 22 articles in the Interpretation Law, which mainly stipulate eleven aspects.
Clarify the sentencing standards for food safety crimes.
Articles 1 to 7 of the Interpretation make specific provisions for the first time on the criteria for determining the conviction and sentencing circumstances of the crime of producing and selling food that does not meet the safety standards and the crime of producing and selling poison and harmful food.
For the crime of producing and selling food that does not meet the safety standards, "it is enough to cause serious food poisoning accidents or other serious food-borne diseases"
It is difficult to determine what constitutes a crime. The first article of the Interpretation classifies the typical cases with high risk in practice by listing: (1) Pathogenic microorganisms and agriculture that seriously exceed the standard limit.
Drug residues, veterinary drug residues, heavy metals, pollutants and other substances harmful to human health; (2) Livestock, poultry, beasts, aquatic animals, their meat and meat products that have died of illness, the cause of death is unknown, or are unqualified in inspection and quarantine.
Products; (3) The production and sale are explicitly prohibited by the state for the prevention and treatment of diseases and other special needs; (four) the nutritional components required for the growth and development of infant food seriously do not meet the food safety standards; (5) Other circumstances.
Interpretation of the provisions of the Interpretation Law, as long as one of the above circumstances exists, can be considered as enough to cause the provisions of Article 143 of the Criminal Law.
Danger. In view of the limitation of understanding and identifying the aggravated consequences of "personal injury consequences" only from the perspective of minor injuries and serious injuries in previous judicial practice, the legal interpretation focuses on injuries, disabilities and organ and tissue injuries.
Multiple identification criteria are stipulated in the aspect of dysfunction caused by injury.
Article 143 of the Criminal Law stipulates that anyone who produces or sells food that does not meet food safety standards enough to cause serious food poisoning accidents or other serious food-borne diseases shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and fined.
Adding "Viagra" to men's health food will be convicted.
The legal interpretation severely punishes food abuse and addition. Article 8 clarifies the applicable standards of relevant laws for the first time. First, in view of a large number of additions in reality, the "production and sales" stipulated in the criminal law are refined into "processing, sales, transportation and storage"; Second, in view of the abuse of edible agricultural products in planting and breeding, it is clear that the criminal law stipulates that "food" includes edible agricultural products.
The interpretation of the law severely cracked down on illegally added food. Article 9 defines the standards of law application from three aspects for the first time: First, it is aimed at practice.
Use toxic and harmful non-food raw materials to process food, such as using "gutter oil" to process edible oil. It is clear that this kind of "reverse addition" behavior also belongs to the doping of "food produced and sold" as stipulated in the criminal law
Toxic and harmful non-food raw materials "; The second is to make it clear that the substances prohibited by the state are toxic and harmful, and all additions should be convicted and punished for producing and selling toxic substances and harmful food; Third, because of the illegal addition of health food at present.
It is easy to add illegal drugs frequently, such as sibutramine with serious side effects in weight loss health food and Viagra in male health food. It is stipulated that this kind of behavior should be punished as toxic and harmful food in production and sale.
Conviction and punishment.
Related penalties Article 144 of the Criminal Law stipulates that toxic and harmful non-food raw materials are mixed into food produced and sold, or
Whoever knowingly sells food adulterated with toxic and harmful non-food raw materials shall be sentenced to fixed-term imprisonment of not more than five years and fined; Whoever causes serious harm to human health or has other serious circumstances shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years.
Penalties and fines; Whoever causes death or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death, and shall also be fined or confiscated.
Illegal sales of lean meat can be sentenced to more than 5 years.
The interpretation of this law stipulates that illegal production and sale of raw materials, pesticides, veterinary drugs, feeds and other substances prohibited from food additives in food raw materials,
Adding prohibited substances in feed production and sales, and directly providing others with toxic and harmful substances prohibited from being added in feed and animal drinking water, such as illegally producing and selling "melamine protein powder" and "workers"
Industrial gelatin, clenbuterol and feed containing clenbuterol have serious food safety risks and should be severely punished according to law. Based on the fact that this kind of behavior is an illegal business operation in violation of state regulations, the law interprets Article 11.
Article clearly stipulates that the crime of illegal business operation shall be convicted and punished in accordance with the provisions of Article 225 of the Criminal Law. In view of this behavior, it may also constitute the crime of producing and selling fake and inferior products and the crime of producing and selling fake and inferior pesticides and veterinary drugs.
Clear, at the same time constitute other crimes, shall be convicted and punished according to the heavier punishment.
Related penalties Article 225 of the Criminal Law stipulates that whoever violates state regulations and disrupts market order, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall be fined not less than one time but not more than five times the illegal income; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than one time but not more than five times his illegal income or his property shall be confiscated.
False propaganda can constitute the crime of * * *
Article 14 of the Interpretation makes it clear for the first time that anyone who knowingly provides funds, licenses, business premises, transportation, storage, online sales channels, production technology and other assistance or convenience to others in producing and selling food that does not meet the safety standards, or produces and sells food that is toxic and harmful food.
Article 15 of the Interpretation clearly stipulates for the first time that advertising agents and publishers, even though they don't know that the food in the advertisement does not meet the safety standards or is toxic or harmful, do not constitute a crime of endangering food safety according to law, but knowingly make false propaganda, shall be convicted and punished for the crime of false advertising in accordance with the provisions of Article 222 of the Criminal Law.
Related Penalties Article 222 of the Criminal Law stipulates that advertisers, advertising agents and publishers who use advertisements to make false propaganda of goods or services in violation of state regulations, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention, and shall also or only be fined.
The maximum sentence for dereliction of duty in supervision is ten years.
Article 16 of the Interpretation puts forward clear opinions on the application of various crimes of dereliction of duty in food supervision and the handling of offenders: First, in the criminal law,
Amendment (8) After adding the crime of dereliction of duty in food supervision, the crime of dereliction of duty in food supervision shall be convicted and punished, and the crime of abuse of power or dereliction of duty with lighter statutory punishment shall no longer be applied; The second is to form food at the same time.
Crimes of dereliction of duty, such as the crime of dereliction of duty in commodity supervision, the crime of malpractice in commodity inspection, the crime of malpractice in animal and plant quarantine, the crime of malpractice in not handing over criminal cases, and the crime of indulging in the production and sale of fake and inferior commodities, shall be convicted and punished in accordance with the provisions of heavier punishment.
Punishment; Third, if it does not constitute the crime of dereliction of duty in food supervision, but it constitutes other dereliction of duty crimes such as the crime of malpractice in commodity inspection, it shall be convicted and punished according to the relevant charges; Fourth, the staff of state organs and other personnel responsible for food safety supervision and management.
* * * Whoever conspires to use his official behavior to help others commit crimes endangering food safety, and at the same time constitutes crimes of dereliction of duty and crimes endangering food safety, shall be convicted and punished in accordance with the provisions of heavier punishment.
Article 408 of the Criminal Law stipulates that any functionary of a state organ responsible for the supervision and administration of food safety who abuses his power or neglects his duty and causes serious food safety accidents or other serious consequences shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; Whoever causes especially serious consequences shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years.
Severely punish illegal pig slaughter.
Other issues stipulated in the legal interpretation:
Punish illegal pig slaughtering and business operations according to law;
For the first time, the conviction and punishment standards for producing and selling food additives and food-related products that do not meet safety standards were clarified;
Clarify the principle of dealing with the concurrence of crimes endangering food safety;
Strictly apply penalties to crimes that endanger food safety;
Severely punish unit crimes.
■ tidbits
The first all-media live broadcast of the Supreme Court meeting
Yesterday, the Supreme People's Court's press conference was broadcast live by all media for the first time, and the information of the press conference was immediately transmitted to all walks of life.
The reporter saw at the scene that the press conference was broadcast live by CCTV, People's Daily and the Supreme People's Court.
At the press conference, the Supreme Court also invited Weibo bloggers such as People's Daily, Xinhua Viewpoint, CCTV News, Voice of China, People's Court Newspaper, Yufa Sunshine, Pujiang Tianping and Guangdong Higher People's Court to broadcast live in Weibo.
Sun, spokesman of the Supreme Court, said that the current media communication has entered the all-media era. On the basis of traditional media's participation in press conferences, the Supreme Court will continue to try online media, participate in press conference reports from the media, and immediately transmit the latest information of the Supreme Court to the public.
From 20 10 to 20 12, the national courts concluded criminal cases of producing and selling food that did not meet the safety (hygiene) standards and producing and selling toxic and harmful food 1533; The number of effective judgments was 2088.
■ Ask questions
Is the scope of legal interpretation too wide?
Q: Article 1 of the law stipulates that it contains pathogenic microorganisms, pesticide residues, veterinary drug residues, heavy metals,
Polluted substances and other substances harmful to human health belong to livestock, poultry, animals, aquatic animals and their meat and meat products that have died of illness, unknown cause of death or failed inspection and quarantine. According to the criminal law, they will be punished for less than three years.
Fixed-term imprisonment or criminal detention and a fine. Under the reality of food safety in China, is the scope of application of this law too wide, which is not conducive to the overall development of China's food industry?
Miao Youshui, Vice President of the Second Criminal Court of the Supreme Court: When this provision was drafted, some experts raised similar concerns. We are working on
This situation has been fully considered and restricted in the legal interpretation. In terms of quality, we strictly limit foods that do not meet safety standards to high-risk products. Article 28 of the Food Safety Law stipulates that
It is forbidden to produce and sell 10 kinds of food. In the legal interpretation, we chose four kinds of foods with high risks for supervision.
In terms of quantity, we have made some requirements for foods that do not meet the safety standards, such as those stipulated in the first paragraph of Article 1.
"seriously exceeding the standard limit". Some people may ask, what is serious? Can two or three times the standard be accurately said to be serious? We also studied this issue in detail during the drafting process and found food safety.
Many professional problems in the whole field are very complicated. For example, the standard limits of pathogenic microorganisms, heavy metals and other substances mentioned just now are different, and the harm is different. If the one-size-fits-all rule is three or five times,
It is unscientific to exceed the limit. Therefore, we leave this to the judicial personnel to decide in practice. We are also worried that there will be new problems in the process of discretion in judicial practice, so article 2 1 of legal interpretation is carried out in procedure.
Supplementary provisions. "Enough to cause serious food poisoning or serious food-borne diseases" is difficult to determine, and the judicial organs can determine it according to the inspection report and combined with expert opinions and other related materials.
How to identify imported food?
Q: The food safety cases mentioned in the Interpretation are all criminal acts in domestic production, sales and circulation. How to identify the same type of imported food crime?
Pei Xianding, President of the Second Criminal Court of the Supreme Court: Imported food will be punished in accordance with the relevant provisions of the judicial interpretation if there are various situations in the judicial interpretation. However, at present, the production and sales of imported food are mostly abroad, so it is difficult to obtain evidence. However, if our judicial personnel can extract relevant evidence, they will be treated equally with similar crimes in China.
Is the relevant legislation lagging behind?
Q: In recent years, although China has intensified its efforts to crack down on crimes endangering food safety, crimes endangering food safety have occurred from time to time. Some people think that the current legal network is not strict enough and there are still some defects in legislation. For example, the charges are lagging behind, the sentencing is relatively light, and the punishment pays more attention to the harmful results.
Sun, spokesman of the Supreme Court: We have issued this legal interpretation in order to crack down on and punish criminal laws that endanger food safety crimes.
The net is woven tighter. The purpose of doing this is to make full use of existing legal provisions and all criminal measures to crack down on crimes endangering food safety from the perspective of judicial organs. Of course, crimes that endanger food safety are also constantly emerging.
Under the new situation, new changes are constantly taking place in criminal methods, criminal means and harmful consequences. In order to cope with this change, various measures need to be taken, among which it may be necessary to adopt new laws and amend existing laws. As a judicial machine
Generally speaking, in the process of judicial practice, on the basis of making good use of various criminal measures stipulated by existing laws and according to actual needs, if it is necessary to put forward legislative suggestions or modify existing legal suggestions, we
It will also put forward corresponding legislative suggestions to the legislature within the scope of authorization stipulated by the Constitution and laws.
■ sound
The qualification of food labeling should be standardized.
Yesterday, Beijing No.1 Intermediate People's Court reported that it had accepted four food safety crimes in the past ten years. The judge in charge of the subject in the First Intermediate People's Court analyzed that this phenomenon shows that the crackdown on food safety crimes was not enough before and the conviction threshold was too high.
Yesterday, the introduction of the interpretation of the law enhanced the operability of judicial practice in related cases, and the above situation will change.
The court of trial practice also appealed that the appraisal qualification in the field of food appraisal should be unified and standardized.
Beijing No.1 Intermediate People's Court once tried a case, when Beijing Shihoude Food Co., Ltd. was suspected of selling food that did not meet food safety standards.
In the case of vacuum-packed semi-finished roast duck, the food safety appraisal involved was issued by Beijing Food Safety Monitoring Center. However, the center is a supervision and inspection institution established by Beijing Administration for Industry and Commerce, and it is not included in Beijing's "state".
Authentication institutions and judicial authentication institutions in the roster of judicial authenticators.
Strictly speaking, the inspection reports issued by appraisal institutions and appraisers that are not included in the roster should not belong to "appraisal opinions". However, at present, there is no special appraiser and appraisal institution to test microorganisms, and the court finally recognizes its evidence effect.
According to the judge of the First Intermediate People's Court in charge of the research project, there are still some cases where there are conflicts of opinion. Especially after the promulgation of 20 1 1 Food Safety Law, food safety inspection is managed by stages, and all law enforcement departments have the right to manage food production and circulation, which is bound to increase the difficulty of judging food expert opinions.
In this regard, the First Intermediate People's Court suggested standardizing the appraisal qualification in the field of food appraisal, giving full play to the role of expert assistants in judicial trials, and assisting judges to fully understand the appraisal standards of food safety.