The "Food Safety Law of the People's Republic of China" was adopted by the Seventh Meeting of the Standing Committee of the Eleventh National People's Congress of the People's Republic of China on February 28, 2009. Effective from June 1, 2009. The "Food Hygiene Law of the People's Republic of China", which has been in effect for 14 years since its implementation, has been abolished at the same time. This means that China's food safety supervision has entered a new stage. Now, through comparison of the two laws, we can stand on the same side. From the perspective of a law enforcement officer, let’s make a preliminary analysis of the changes and existing problems in some parts of the "Food Safety Law":
1. In the general provisions of the "Food Safety Law", points are given for the level of passing the law. The section management has a clear identity and scope of authority. In addition to the original departments of agriculture, health, industry and commerce, quality inspection, food and medicine, a new agency has emerged - the Food Safety Committee of the State Council. In previous work, both food and Whether in medicine or industry and commerce, when exercising the power of coordination, due to the lack of a unified superior department among various departments, they will encounter various resistances. The establishment of this organization can avoid the previous situation of "unable to coordinate". The Food Safety Law not only requires local people's governments at or above the county level to be responsible for, leading, organizing, and coordinating the food safety supervision and management work in their respective administrative regions, but also gives them the power to evaluate and assess food safety supervision and management departments. A considerable number of regulatory agencies have vertical management systems, and their annual work is not subject to assessment by local governments. This time the law has clarified the responsibilities of local governments, giving local governments a basis for exercising their powers and increasing the supervision of vertical management regulatory agencies. binding force. Based on the principle of unity of powers and responsibilities, the Food Safety Law also stipulates penalties for non-performance or dereliction of duty by local governments and regulatory authorities. For the first time, it is proposed in laws and regulations in the food field that in the event of a major accident When serious consequences occur, the mandatory legal provision that the main person in charge should take the blame and resign can try to avoid the previous situation of "deputies and subordinates taking the blame, and the full-time job to accommodate the family members" that occurred in the past. However, there are also some problems faced in future work. During the reform, some law enforcement agencies are unwilling to cancel vertical management without considering personal treatment. A very important reason is that local governments are considering local economic growth, taxation, Factors such as population and employment will cause some resistance to the work of law enforcement departments. These resistances are relatively small in vertical management, but will be very obvious in local management. Now, the law has increased the government's binding force on regulatory authorities. So when there are no major food safety incidents, how to ensure the enforcement efforts of various regulatory authorities, and how to ensure that the new law will not become a protective umbrella for local protectionism. has become a very sensitive issue.
2. Compared with the "Food Safety Law" and the "Food Hygiene Law", the food safety risk monitoring and assessment chapter is new. This chapter embodies the prevention-oriented idea and draws on several extremely influential laws. Lessons from major food safety accidents: put supervision in advance, take action as early as possible, and try to eliminate hidden dangers in their infancy. The responsibilities of this part are basically in the hands of various national ministries and commissions, but there are no corresponding penalties for this part, giving people the feeling that "a doctor cannot be punished". The corruption incident that occurred in the drug regulatory system a few years ago was related to the certification before production. In this link, how to avoid the situation of "enriching experts, enriching enterprises, suffering the people, arresting corrupt officials, and destroying the system" from happening again is very critical. This aspect should be supplemented by more detailed rules.
3. In the food safety standards chapter of the "Food Safety Law", it is clearly stated that safety standards are formulated by the Ministry of Health and integrate the original standards, so that the previously diverse standards have a unified Labels can be said to be a highlight of this legislation.
Four. The requirements for food production and operation are the core part of the professional food law. The enforceability and perfection of this law will be reflected in this.
7. In the supervision and management part, the "Food Safety Law" basically applies the relevant content in the special regulations of the State Council, increasing the scope of powers of departments at all levels to publicize and announce to the outside world, and avoiding " A situation in which many people say one thing and one person has his own interpretation. Compared with the "Food Hygiene Law", the "Food Safety Law" lacks one content, that is, regulatory personnel have the obligation to keep confidential the non-illegal technical information provided by producers and operators. This article should clarify the responsibility through law. , is the protection of taxpayers’ business secrets.
8. From the perspective of formulating the legal responsibilities of the "Food Safety Law" and "Food Hygiene Law", the "Food Safety Law" applies the model specially stipulated by the State Council, increases the bottom line of the amount of penalties, and puts forward It also clarifies the level of administrative sanctions and clarifies that after an accident occurs, the main person in charge of the causing unit shall no longer be engaged in food safety management work within a certain time limit. The biggest feature of the formulation of legal liability in the "Food Safety Law" is the provisions of Articles 96 and 97, which give consumers the basis for the amount of claims after losses and the priority to receive civil compensation, which fully reflects the It shows the humane side of Chinese law. However, there are also some problems that need to be explained and resolved in the penalties of the Food Safety Law. Some statutory requirements do not have penalties, such as employees without health certificates, food production and operation processes that do not meet statutory requirements, etc., which are inconsistent with the Food Safety Law. Compared with the Health Law, the penalties after food poisoning incidents are not listed separately in the Food Safety Law. The relevant departments need to interpret the concept of "serious circumstances" in the law to facilitate work. Among the penalties in the "Food Hygiene Law", there are only two situations: illegal gains and no illegal gains. According to the departmental regulations of the Ministry of Health, situations where evidence cannot be obtained are included in the scope of no illegal gains. The operation is relatively simple. In Articles 84, 85, and 86 of the Food Safety Law, the two concepts of illegal income and value of goods appear. How to distinguish and define these two concepts also needs to be clear. The penalties of the Safety Law The amount of punishment is determined based on the value of the goods. In actual work, some problems will be encountered. Here are a few examples: 1. A company is found to have violated the law, and the amount involved is very high and far exceeds the legal limit of 10,000 yuan. Regarding that standard line, in order to reduce the amount of punishment, the business owner may have hidden or even burned important evidence such as books and accounts. The administrative department knew that the amount involved was very high, but was unable to obtain evidence. How to operate in this case? 2. In many individual small-scale catering businesses, the cultural quality of the employees is very low. They have no books at all and cannot keep accounts. They cannot tell the illegal income or the value of the goods. How to make a final conclusion? 3. A high-end seafood restaurant had a bag of MSG that had expired. Half of the bag was used. Since the amount of MSG used in each dish is very low, half a bag of MSG may be used to make dozens or even hundreds of dishes. Use this MSG. It is impossible for the chef to completely remember what dishes he has cooked during this period, let alone calculate how much those dishes sold for a day. If the value of the goods is determined at this time, how to carry out punishment? Articles 87, 88, and 91 of the "Food Safety Law" provide for administrative penalties of giving warnings and fines for those who refuse to make corrections. This provision can be regarded as a combination of education and punishment. , giving the management counterpart an opportunity to make corrections, but in actual operations this situation is likely to occur: the administrative department went to inspect for the first time and found that the unit did not check the license and relevant supporting documents when purchasing goods, so the evidence was given and a warning was given. , if it is found that the merchant has been inspected during the second inspection, then it means that it has made corrections and does not need to impose administrative penalties of fines. However, after two months, the third inspection found that the management counterpart has appeared again in the first inspection. At this time, the administrative department, in accordance with the law, can only give the management counterpart one more warning. Then the management counterpart will take advantage of the legal gap to go back and forth with the administrative department, and the problem will not be fundamentally solved.
9. In the supplementary provisions of the "Food Safety Law", some terms in the law are explained, and a new definition of food safety is proposed, as well as the definition of food poisoning, food-borne diseases and food safety accidents. Concept, the original definition of food poisoning by the Ministry of Health is: Food poisoning refers to a non-infectious acute disease that occurs after a person ingests biological or chemical toxic and harmful substances or takes toxic and harmful substances as food. or subacute illness, which falls under the category of foodborne illness. Compared with the original definition of food poisoning by the Ministry of Health, the definition in the "Food Safety Law" removes the concept of "non-infectious" and elevates food poisoning and foodborne diseases to a parallel level. The change in concept definition will have an impact on It has a great impact on the work carried out, if further explanation of these terms is a top priority. In the "Food Safety Law", the scope of supervision is divided into food production and processing, food circulation and catering services. However, the terms of this segmented management are not explained in the explanation. This will affect how each department defines its own work scope in the future. It will have a certain impact.
To sum up, the promulgation of the "Food Safety Law" reflects our country's determination to increase supervision of food safety work. This law fills in some of the legal gaps caused by the advancement of the times. , clarified the responsibilities of various departments at all levels in all aspects of food supervision. At the same time, this law urgently needs to formulate supporting implementation rules and departmental regulations of various departments, and relevant departments should issue its judicial interpretation, improve the legal system, enhance enforceability, and effectively enhance food safety supervision.