First, increase the administrative and criminal accountability of government officials who do not act or act indiscriminately.
In recent years, frequent food safety incidents in various places have severely criticized the dereliction of duty of relevant government departments in food safety supervision. The inaction of some functional departments makes food safety supervision ineffective. Although some national staff responsible for food safety supervision are suspected of dereliction of duty or abuse of power, they are rarely investigated for criminal responsibility. To ensure the safety of people's dining tables, it is obviously not enough to punish related enterprises alone. It is necessary to bring the staff of the supervision department who have neglected their duties into the scope of punishment, and investigate the legal responsibility of those who have failed to supervise. In real life, local governments and functional departments, for various purposes, neglect their duties in protecting the legitimate rights and interests of consumers and purifying the food market order, resulting in mercenary food producers and operators creating food safety problems without fear, and some major food safety accidents occur frequently. Even some functional departments give a green light to operators who do not have the legal qualifications for food production and operation, which violates administrative licensing. The food safety supervision responsibility entrusted by the Food Safety Law to administrative organs is administrative power and public power for the supervised, but it is a heavy responsibility for consumers and the public. In order to urge people with administrative power to perform their duties, the Food Safety Law refuses or ignores the legal responsibility of exercising supervisory duties and abusing their powers. This kind of legal responsibility includes not only the administrative punishment given by the state to government officials, but also the state compensation responsibility for the injured consumers. At the same time, the "Criminal Law Amendment" (VIII) added the crime of dereliction of duty in food safety supervision. According to the provisions of this article, if it constitutes a crime of dereliction of duty in food safety supervision, the perpetrator 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. Since there is no major food safety accident in Yichang at present, it should be more prominent to publicize the crime of dereliction of duty in food safety supervision.
At the same time, the author believes that if there is a food safety accident, the person in charge of the supervision department should take the initiative to resign, and the main person in charge of the local government should also be dismissed. This accountability mechanism has produced positive legal, social and political effects on firmly establishing the new concept of a government ruled by law, a responsible government and a service-oriented government and protecting the legitimate rights and interests of consumers. In order to normalize, institutionalize and standardize this accountability mechanism, Article 95 of the Food Safety Law stipulates administrative punishment measures for the main leaders of local governments and the main leaders of regulatory departments respectively. Although there is only one law, it is clear from this law that both the "top leaders" of the government and the "top leaders" of functional departments may be dismissed because local and local departments violate their statutory food supervision duties. According to paragraph 1 of Article 95 of the Food Safety Law, if a local government at or above the county level violates the provisions of this law and fails to perform its duties of food safety supervision and management, and a major food safety accident occurs within its administrative area, causing serious social impact, the directly responsible person in charge and other directly responsible personnel shall be punished according to law. The "directly responsible person in charge and other directly responsible personnel" here include both deputy leaders (such as deputy heads of counties and district heads) in charge of food safety supervision of local governments and full-time leaders of local governments. According to the second paragraph of Article 95 of the Food Safety Law, if the health administration, agricultural administration, quality supervision, industrial and commercial administration, food and drug supervision and administration departments or other relevant administrative departments at or above the county level violate the provisions of this law, fail to perform their duties as stipulated in this law, or abuse their powers, neglect their duties or engage in malpractices for selfish ends, the directly responsible person in charge and other directly responsible personnel shall be given disciplinary sanctions of gross demerit or demotion according to law; Causing serious consequences, be dismissed or expelled; The person in charge should take the blame and resign.
Two, the establishment of information sharing platform, strengthen the whole process of food safety supervision.
Because food safety involves many links such as food production, processing, storage, transportation, circulation and consumption, it is difficult for any regulatory department to undertake the heavy responsibility of safety supervision alone. Under the situation that "one department can't manage it", the current food safety supervision system is forced to choose the idea of multi-department and segmented supervision. Among them, the agricultural department is responsible for the supervision of primary agricultural products production, the quality inspection department is responsible for the supervision of food production and processing, the industrial and commercial department is responsible for the supervision of food circulation, the health department is responsible for the supervision of consumption links such as restaurants and canteens, and the food and drug supervision department is responsible for the comprehensive supervision, organization and coordination of food safety and the investigation and punishment of major accidents according to law.
Although the segmented supervision system helps to urge relevant departments to perform their duties and avoid the phenomenon that "one department can't manage it", it also has the disadvantages of "multiple departments can't manage it well": there are both repeated supervision and blind spots in supervision. It seems that agriculture, quality supervision, industry and commerce, health and other departments are heavily guarded in all food production and operation links from "Tiantou" to "dining table", but toxic and harmful foods are still flooding the market. After consumers complain about product quality problems, relevant departments either lack information exchange or pass the buck. For another example, it is not clear which department is responsible for matters that do not belong to any link, such as food safety risk assessment, food safety standards formulation, and food safety information publication. Objectively, there are serious problems of overlapping functions and unclear responsibilities. Due to the unclear division of responsibilities, some departments, driven by the interests of small groups, have adopted the pragmatic thinking of "grabbing control when it is favorable and letting control when it is unfavorable", which will inevitably weaken the supervision efficiency of the supervision department and even delay the best supervision opportunity.
In order to completely break the vicious circle of "one department can't manage it, but many departments can't manage it well", a whole-process food safety supervision system should be established with information sharing, high efficiency and seamless docking, especially the municipal health bureau, the Bureau of Quality and Technical Supervision, the Food and Drug Administration, the Administration for Industry and Commerce and other departments should establish communication platforms to ensure smooth information. As far as the division of local supervision responsibilities is concerned, the second paragraph of Article 5 of the Law stipulates: "The local people's governments at or above the county level shall determine the food safety supervision and management responsibilities of health administration, agricultural administration, quality supervision, industry and commerce administration and food and drug supervision and management departments at the same level in accordance with this Law and the provisions of the State Council. The relevant departments are responsible for the supervision and management of food safety within the scope of their respective duties. "
In order to eliminate regulatory gaps and improve regulatory efficiency, Article 6 of the Food Safety Law also requires health administration, agricultural administration, quality supervision, industrial and commercial administration and food and drug supervision and management departments at or above the county level to strengthen communication and close cooperation, exercise their functions and powers and assume responsibilities according to their respective responsibilities. In order to give full play to the advantages of local governments in supervising local food enterprises, local governments are required to take overall responsibility for food safety supervision in their respective administrative regions. Paragraph 1 3 of Article 5 of the Food Safety Law stipulates: "The local people's governments at or above the county level shall be responsible for, lead, organize and coordinate the food safety supervision and management within their respective administrative areas, and establish and improve the working mechanism of the whole process of food safety supervision and management; Unified leadership and command of food safety emergencies; Improve and implement the responsibility system for food safety supervision and management, and evaluate the food safety supervision and management departments. The institutions established by the subordinate departments of the people's governments at higher levels in the administrative regions at lower levels shall, under the unified organization and coordination of the local people's governments, do a good job in food safety supervision and management according to law. " Therefore, in the process of establishing information sharing mechanism and strengthening the whole process management, local governments should coordinate.
The author believes that to establish information sharing and strengthen the construction of communication platform, on the one hand, we should pay attention to the division of labor and cooperation of supervision. In other words, it not only emphasizes that all regulatory departments perform their statutory duties diligently, authoritatively and efficiently according to law; It also emphasizes information sharing, regulatory linkage and seamless docking between regulatory authorities, and finally establishes a 24-hour collaborative supervision system covering all aspects of food production, processing, circulation and consumption. Compared with the regulatory division of labor, regulatory cooperation is more challenging and arduous.
Third, increase the application of punitive damages in civil compensation litigation.
Article 47 of China's Tort Liability Law stipulates: "If a product is produced and sold knowing that it is defective, resulting in the death of others or serious damage to health, the infringed has the right to request corresponding punitive damages." This clause provides punitive damages for product defects. Article 96 of China's Food Safety Law stipulates that anyone who violates the provisions of this law and causes personal, property or other damage shall be liable for compensation according to law. In the production of food that does not meet the food safety standards or the sale of food that is known to fail to meet the food safety standards, consumers can claim compensation of ten times the price from the producer or seller in addition to compensation for losses. According to Article 99 of the Food Safety Law, food refers to "all kinds of finished products and raw materials for human consumption or drinking, as well as articles that are traditionally both food and medicine". Therefore, food includes unprocessed raw materials and processed food. The products in "product liability" stipulated in Chapter V of Tort Liability Law are products stipulated in Product Quality Law. According to Article 2 of the Product Quality Law, "product" refers to "processed, manufactured and sold products". If food meets the requirements of "processing, manufacturing and selling" and also constitutes a product, it belongs to both the "product liability" of Tort Liability Law and the food category regulated by Food Safety Law. Therefore, consumers who are damaged by food product defects can claim punitive damages according to Article 96, paragraph 2, of the Food Safety Law and Article 47 of the Tort Liability Law.
However, the second paragraph of Article 96 of the Food Safety Law is aimed at foods that "do not meet food safety standards"; Article 47 of Tort Liability Law is aimed at defective products, and in the field of food, it is aimed at defective food. However, the Tort Liability Law itself does not clearly define the concept of product defects, so it is necessary to refer to the special law. According to the provisions of Article 46 of the Product Quality Law, defects refer to the unreasonable dangers of products that endanger the personal and property safety of others; If the product has national standards and industry standards to protect human health and personal property safety, it means that it does not meet the standards. Literally speaking, products that do not meet food safety standards are of course defective products; If it meets the food safety standards, it is not a defective product. Paragraph 2 of Article 96 of the Food Safety Law and Article 47 of the Tort Liability Law will not be inconsistent in the product types of punitive damages in the food field. However, there is a theory that whether a product has defects should be determined based on unreasonable dangers. Even if all the performance indicators of the product meet the mandatory standards, the product may still have defects. There are also cases in judicial practice. Therefore, even if the food meets the food safety standards, consumers cannot claim punitive damages in the sense of the second paragraph of Article 96 of the Food Safety Law. However, if there is unreasonable danger and it still constitutes a defective product, the infringed may still request punitive damages in the sense of Article 47 of the Tort Liability Law.
What I want to emphasize is that according to the second paragraph of Article 96 of the Food Safety Law, consumers can demand punitive damages as long as the products do not meet the food safety standards. However, the scope of application of Article 47 of Tort Liability Law is obviously narrower than before. Only when personal injury causes death and serious damage to health can the infringed person request punitive damages. That is to say, producing food that does not meet the food safety standards or selling food that knowingly does not meet the food safety standards constitutes punitive damages in the sense of the second paragraph of Article 96 of the Food Safety Law, but it does not cause serious personal injury, which does not constitute punitive damages in the sense of Article 47 of the Tort Liability Law. Therefore, the author thinks it is necessary to strengthen the application of punitive damages in the food safety law.
However, from the perspective of the cost of safeguarding rights, no one will defend rights for ten times punitive damages. However, although the Food Safety Law introduced punitive damages, the amount of compensation was only ten times. This compensation is too low. Since it is punitive damages, it should not be capped. The purpose of establishing this system is to let anti-counterfeiting enterprises know that even if 10 thousand people buy products, even if only one consumer asks for compensation, the whole enterprise may be destroyed. For that kind of intentional and malicious behavior, it should be given fatal punishment economically. Therefore, compensation for mental damage should be more widely used in judicial practice to make up for its shortcomings. Of course, the author also looks forward to the perfection of the law.