101October 3 1 day, the the State Council executive meeting passed the Food Safety Law (Draft) in principle. According to the plan, the law will be submitted to the 3rd1meeting in the National People's Congress Standing Committee (NPCSC) in June+February, 5438, and it is expected to be promulgated next year.
In recent years, the problem of food safety has not diminished, and the largest number of proposals at the annual people's congress are related to this. But this year, China products such as food and toys have become the object of international hot speculation. Many people think that China has entered a period of high incidence of food problems.
As early as 2004, Zhang Yongjian, executive director of the Food and Drug Industry Development and Supervision Research Center of China Academy of Social Sciences, took the lead in organizing the topic "Research on the Food Safety Supervision System and Legal Evolution in China". With regard to the food safety supervision system, Zhang Yongjian still calls for the transition from a segmented management system to a variety management system, despite the obstacles in the adjustment of departmental powers and interests.
The biggest progress is the food risk monitoring and assessment system.
265438+20th century: In recent years, especially this year, even internationally, food safety in China has become the focus of attention from all walks of life. What is the current situation? What do you think is the problem?
Zhang Yongjian: There are two main food safety problems in China. One is the food safety problem caused by food-borne diseases. For example, 1988, the outbreak of hepatitis A in Shanghai with more than 300,000 people, and the snail incident in Beijing and the soybean milk incident in Haicheng, Liaoning in recent years are all food-borne diseases caused by food pollution. Now it is the number one problem of food safety in China.
The second is the food safety problem caused by fake and shoddy products made on purpose. This is a phased problem. In recent years, some major cases have occurred frequently, such as Fuyang milk powder incident.
"265438+20th century": The call for formulating food safety law has a long history. What do you think of the current legal problems? What's the reaction to the new draft law?
Zhang Yongjian: From the framework, China has basically established a system of food safety laws and regulations based on the Food Hygiene Law. But there are also many problems.
First of all, the scope is too narrow to cover the whole process from farmland to table. The Food Hygiene Law does not regulate the production, management or use of food and related food additives, feed and feed additives, including planting, breeding and storage, and there is a blind spot in legal supervision.
Second, the responsibility of the law enforcement subject determined by it has been out of touch with reality. After the institutional reform from 65438 to 0998, food supervision was mainly supervised by the US Food and Drug Administration and the ministries of public security, agriculture, commerce, health, industry and commerce, quality inspection and customs.
In addition, the legal liability provisions are not strict and the connection is not smooth. The most typical example is the Food Hygiene Law, which stipulates that those who produce and operate food that does not meet the hygiene standards and cause serious harmful results shall be investigated for criminal responsibility according to law. However, the criminal law stipulates that "the crime of producing and selling food that does not meet the hygiene standards" constitutes a crime as long as it is "enough to cause serious food poisoning accidents or other serious food-borne diseases".
In addition, the whole food safety legal system is not complete, and it has not responded to new situations and problems in time, especially the lack of laws and regulations on food safety emergency handling, risk assessment, credit and information release.
This draft stipulates and improves many systems, such as the monitoring and evaluation of food safety risks, the release of important food safety information, the quality and safety of food production, processing, packaging, transportation, storage and sales, as well as the food production and operation license, inspection, labeling, standards and unsafe food recall system. In addition, the punishment should be strengthened, and it should be made clear that local governments take overall responsibility for food safety supervision within their respective administrative areas.
I think the biggest progress is to establish and improve the food safety risk monitoring and evaluation system, and establish food safety management on a scientific basis, not an administrative basis.
There are many problems in food segmentation management.
2 1 century: what about the regulatory system? At present, the pattern of "multi-dragon water control" has been criticized a lot.
Zhang Yongjian: In 2003, the US Food and Drug Administration was established on the basis of the former Drug Administration. This is the only department in the Ministry (bureau) with the word "grain" in its name, and it is hoped that coordination will be strengthened in the case of multiple policies. Its responsibilities in food safety are comprehensive supervision, organization and coordination, and investigation of major food safety accidents. Now, it seems that the work it has done well is the last one, and it can neither fully supervise nor organize and coordinate.
What's the problem? I think the first authorization for it is unclear and insufficient. Comprehensive supervision, organization and coordination is a big framework. To what extent, the specific connotation is not clear. It may not solve the problem in the end.
The second is that it lacks authority. Not to say that power should be centralized, but to be authoritative. By what authority, within the government system, by the administrative level.
In 2004, the State Council's Decision on Further Strengthening Food Safety divided the responsibilities of the departments involved in food safety supervision, and basically managed by sections. At the same time, the method of "subsection management is the main and variety management is the auxiliary" is put forward. The so-called segmented management means that each department is responsible for the supervision of different links. Variety management means that different foods are supervised by relevant departments according to their varieties, and a variety is managed from beginning to end.
265438+20th century: It is said that there is no breakthrough in the management system of the draft food safety law. What do you think is the ideal model?
Zhang Yongjian: At that time, we suggested in the project report that a breakthrough should be made on the basis of the inter-ministerial joint coordination meeting on food safety, such as the establishment of the Food Safety Committee of the State Council to coordinate and manage the relevant departments involved in national food safety.
This year, a high-standard food safety leading group was established in the State Council. Its permanent office is located in the General Administration of Quality Supervision, with Vice Premier the State Council as the leader. Food safety offices have also been established in many places, and the leaders in charge are generally deputy governors, deputy mayors and deputy heads of counties. They have high authority and better communication efficiency than the previous joint meeting system.
We also suggest further exploring various management modes, combining variety management with "subsection" management, and handing over centralized management chains and varieties with smaller spans to one or two departments for management. For the management that needs to be "segmented", it is necessary to clarify the boundaries and methods of convergence, especially the communication and sharing of information, and avoid overlapping functions as much as possible.
At present, there is no breakthrough in the pattern of "subsection management as the main, variety management as the supplement".
Looking at the international experience, many still focus on variety management, and it is easy to define responsibilities. If it is segmented management, it is difficult to draw a clear line in many places. We have seen such a case. There is something wrong with bean sprouts. Several departments rushed to the scene immediately. The first thing is to ask you whether this is an agricultural product or a processed product. Who is in charge?
Is it possible to gradually transition from subsection management to variety management? We haven't seen any signs of such a major reform, because it will change the existing pattern of power and interests too much and it will be very difficult.
Civil claims are more deterrent than administrative punishment.
"265438+20th century": In terms of legal responsibility, the draft clarifies the responsibility of the government and increases the punishment for illegal acts. In terms of civil liability, many people hope to increase punitive damages to facilitate consumers' rights protection. what do you think?
Zhang Yongjian: In 2004, the State Council Document No.23 clearly put forward the requirement that local governments should take overall responsibility for food safety, but we should also consider the implementation of the security mechanism, because it also involves the differentiation of goals between central government departments and local governments. Central government departments should pay more attention to security and macro-control, while local governments should undertake more tasks, such as economic growth and employment.
In the past, the punishment for enterprises was based on illegal income, but now the draft is based on the value involved, and the punishment has also increased. This is only one aspect. The key still depends on whether we can strictly enforce the law and administer according to law. The dignity of the law is not formulated, but implemented.
The problem of civil litigation is the key. Many officials say that illegal counterfeiters should "go bankrupt", but punishment is not the purpose, and administrative punishment is limited. In addition, government departments are not the direct victims of illegal products. Too much emphasis on administrative punishment will lead to "substituting punishment for law" in some places. The most effective deterrent to criminals is to let the victims file civil claims.
The problem now is that the cost of safeguarding rights is too high. In practice, only the actual loss is awarded, and the time and energy cost spent by the victim is not enough to compensate for its loss. Moreover, it lacks punitive damages and has insufficient deterrent effect on offenders.