After being ordered to make corrections and warnings, how should we deal with illegal acts that still do not change?
The "Food Safety Law", "Drug Administration Law" and other market supervision laws and regulations stipulate that some illegal production and operation behaviors shall be ordered to correct and warn for the first violation, and fines shall be imposed for refusal to make corrections or failure to change within the time limit, that is, a lighter punishment shall be given for the first violation, and a relatively heavier property penalty will be given when the first violation is still not changed. For example, Article 126 of the Food Safety Law provides that "in any of the following circumstances in violation of the provisions of this Law, the food safety supervision and administration department of the people's government at or above the county level shall order corrections and give a warning; where corrections are refused, a fine of between 5,000 and 50,000 RMB is to be given; If the circumstances are serious, it shall be ordered to suspend production and business, up to the revocation of the license: Article 127 of the Drug Administration Law "Anyone who violates the provisions of this Law by committing any of the following acts shall be ordered to make corrections within a time limit and given a warning; If the correction is not made within the time limit, a fine of not less than 100,000 yuan but not more than 500,000 yuan shall be imposed: ..."How to accurately understand and apply such laws is a frequent controversy in the practice of market regulation and law enforcement.
1. The focus of the dispute
What is often disputed in law enforcement practice over the above-mentioned legal provisions is that after a first-time offender is ordered to make corrections within a specified period of time and a warning, under what circumstances is it determined that he fails to make corrections within the time limit or refuses to make corrections and is fined? Under what circumstances should corrections and warnings be given again? This type of controversy is particularly common in food law enforcement.
For example, when purchasing 10 kilograms of bulk rice noodles from a rice noodle factory, Zhangsan Restaurant failed to comply with the provisions of Article 53, Paragraph 1 of the Food Safety Law, and failed to check the food production license of the rice noodle factory and the inspection report of the rice noodle factory.
For example, Zhang San's preserved fruit production factory failed to comply with Article 51 of the Food Safety Law and failed to conduct a factory inspection of the finished preserved fruit products produced.
For example, Zhangsan Food Wholesale Enterprise failed to comply with Article 53, Paragraph 4 of the Food Safety Law and failed to record the sale of the food it wholesaled.
The above three violations are punished in accordance with Article 126 of the Food Safety Law, and those who refuse to make corrections will be fined for the first time. In specific law enforcement, law enforcement officers usually order corrections within 1 day, 3 days, or 5 days for the above-mentioned illegal acts. Then, if the counterparty makes corrections within a few days of the order to make corrections, but is found to have committed the illegal act again in the following 1 month, 6 months, or 1 year, is this a new order to make corrections and a warning? Or is there a penalty for refusal to make corrections? How to deal with it correctly is very important, the above illegal acts seem to be only illegal behaviors, not directly related to unqualified food, but in fact, it is often the source of substandard food, if the food production enterprises have carried out factory inspection of the finished food products, substandard food will not flow to the market; If a restaurant purchases rice noodles from a rice noodle manufacturer and checks the inspection report, the probability of purchasing unqualified rice noodles is greatly reduced. It can be seen from this that the punishment of these perpetrators should not be taken lightly and perfunctory, and should be accurately handled in accordance with the legislative intent, so as to avoid falling into a "hide-and-seek" style of law enforcement -- the administrative counterpart always makes corrections within the time limit for ordering corrections, and then repeats the offense, and then orders corrections and warnings. This will lead to the repeated prohibition of some food production and operation violations due to the low cost of violating the law.
2. Divergent views
(1) Viewpoint 1
At present, many people in law enforcement practice believe that those who are ordered to make corrections and warnings for the first violation of the law and refuse to make corrections or are fined again if they fail to make corrections within the time limit should be dealt with in a unified manner: that is, those who do not make corrections within the time limit for ordering corrections will be fined according to the refusal to make corrections or failure to make corrections within the time limit; Anyone who has made corrections within the time limit for making corrections, but later commits such illegal acts, will be ordered to make corrections and given a warning again.
(2) Viewpoint 2
However, another view is that it is not possible to generalize, but to strictly understand the literal meaning of the legal provisions, and to distinguish between different literal meanings. Some use "order correction within a time limit" and "failure to make corrections within the time limit", while others use "order corrections" and "refuse to make corrections".
1. Article 127 of the Drug Administration Law: "Anyone who violates the provisions of this Law and commits any of the following acts shall be ordered to make corrections within a time limit and given a warning; If the correction is not made within the time limit, a fine of not less than 100,000 yuan but not more than 500,000 yuan shall be imposed: ..."
For example, article 127 of the Drug Administration Law stipulates that "corrections shall be ordered within a time limit" and "corrections shall be made within the time limit", emphasizing that those who fail to make corrections within the time limit should be fined.
2. Article 126 of the Food Safety Law "In violation of the provisions of this Law, in any of the following circumstances, the food safety supervision and management department of the people's government at or above the county level shall order corrections and give a warning; where corrections are refused, a fine of between 5,000 and 50,000 RMB is to be given; where the circumstances are serious, order the suspension of production and business, up to and including the revocation of the license; …”
For example, Article 126 of the Food Safety Law uses the words "order correction" and "refusal to correct", and there are no words such as "time limit" and "overdue", and there is no restriction on fines only for illegal acts that are not corrected within the specified time limit.
In addition, the literal meaning of "refusal" is obviously different from the "overdue" of "refusal to make corrections", and the meaning of the word "refusal" is broader, including not only those who have not made corrections within the time limit for ordering corrections, but also those who have made corrections within the time limit for ordering corrections but later repeat the offense, and also include the circumstances of committing the crime again after being fined. Compared with "failure to make corrections within the time limit", "refusal to make corrections" can reflect greater subjective malice and more serious circumstances.
The following three situations can be considered to be "refusal to correct" as stipulated in Article 126 of the Food Safety Law:
Situation 1: Zhang San's preserved fruit production factory did not conduct a factory inspection of the finished preserved fruit produced in accordance with the law. On March 3, 2024, it was found by the market supervision department and ordered to make corrections within 2 days and give a warning, and on March 6, it was found that there was still an illegal act of failing to inspect the finished preserved fruit.
Situation 2: Zhang San's preserved fruit production factory did not conduct a factory inspection of the finished preserved fruit produced in accordance with the law. On March 3, 2024, it was found by the market supervision department that it was ordered to make corrections within 2 days and given a warning, and on March 6, it was found that the illegal acts had been corrected, but on July 10, it was found that the finished preserved fruit was not inspected from the factory.
Situation 3: Zhang San's preserved fruit production factory did not conduct a factory inspection of the finished preserved fruit produced in accordance with the law. On March 3, 2024, it was found by the market supervision department that it was ordered to make corrections within 2 days and given a warning, and on March 6, it was found that the illegal acts were not corrected, so it was fined for refusing to make corrections. On July 10, it was inspected again and found that there was still an illegal act of not inspecting the finished preserved fruit.
3. Commentary
The author agrees with the second point of view. The methods of legal interpretation include literal interpretation, purposive interpretation, historical interpretation, systematic interpretation, etc., which can be used individually or in combination.
Using literal interpretation, that is, strictly in the literal sense, the literal meaning of "ordering corrections" and "refusing to make corrections" is broader than "ordering corrections within a specified period of time" and "failing to make corrections within the time limit", which not only refers to the failure to correct the illegal situation within the limited time limit, but also refers to the situation that is changed within the limited period but is later committed, and the situation that is committed again within a certain period of time after receiving a fine.
The purpose of the use of interpretation, that is, to seek interpretation from the legislative purpose of the legislature, the 2015 revision of the "Food Safety Law" to food safety "four strictest" for the purpose, then according to the second point of view of this article to understand the "refusal to correct", in order to effectively stop the factory inspection, account registration and other food safety systems in some small and medium-sized food production and operation enterprises in the form of a virtual illegal phenomenon.
Using systematic interpretation, the meaning of "refusal to correct" is better understood by linking the "refusal to correct" in the Food Safety Law with the relevant provisions of the Regulations for the Implementation of the Food Safety Law. According to Article 67, Paragraph 1, Item 5 of the Regulations for the Implementation of the Food Safety Law, if a person commits a food safety violation of the same nature within one year after receiving an administrative penalty such as a warning for violating Article 126 of the Food Safety Law, it is a serious circumstance and shall be ordered to suspend production and business, up to the revocation of the license. It can be seen from this that if an illegal act such as failing to inspect the finished food products and failing to register the food ledger in accordance with the law is re-committed within one year after being warned and ordered to make corrections for the first time, even if it is corrected within the limited time limit, it is a serious circumstance, which means that it is not possible to only warn and order corrections again within one year after the first violation. At the same time, since the "serious circumstances" is a progressive and aggravating circumstance of "refusal to make corrections" and should be heavier than the circumstance of "refusal to make corrections", then the above-mentioned cases of "refusal to make corrections" should be the proper meaning of the above-mentioned cases that have been corrected within a limited period of time after receiving a warning, but have committed them again within one year.
Finally, it should be noted that the time between the two cases of refusal to correct the same offence is not suitable for an indefinite period, but it is recommended to define a reasonable period. Combined with the current law enforcement requirements of both strength and temperature, and the spiritual requirements of "soft" law enforcement, which must be both legal and reasonable, as well as the provisions of Article 67, Paragraph 1, Item 5 of the above-mentioned "Regulations for the Implementation of the Food Safety Law", it is recommended that the interval between the two violations before and after is within two years. For example, if the Zhang Sanguo preserved factory was warned and ordered to make corrections within 2 days for the illegal act of not leaving the factory for inspection, although it was corrected within 2 days, if there was another illegal act of not leaving the factory for inspection within two years, it could be judged as a refusal to make corrections; If there is an illegal act of failing to inspect the factory after two years, a warning will be given and ordered to make corrections within a time limit.
Source: "Bright Sword has a Law" WeChat public account2024-06-04 (Author: Zeng Xia)
Editor: Huang Keshu
First Trial: Jiang Hao
Reviewer: Gu Yan
Final review: Yang Hong
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