Cctv news(Reporter/Kan Chunyu Editing/Dou Ruihua) Recently, the news that Yulin merchants were fined 66,000 yuan for selling 5 kilograms of celery caused widespread concern.
A fine of 3,300 times the sales income was imposed for an index exceeding the standard in celery. Apart from the specific discussion on whether it is a law enforcement issue or a legislative issue, whether the Food Safety Law or the Agricultural Products Quality and Safety Law should be applied, and which one should be applied, ordinary netizens to experts and scholars are calling for a simple thinking of the rule of law.
Yao Haifang, an associate professor at the Law School of Renmin University of China, said in an interview with a CCTV reporter: "A very small sales amount was finally fined heavily, and everyone will feel that there is a disproportion between the two, especially now that everyone is worried that some local departments may take the penalty as escrow and increase their fiscal revenue through fines in disguise, so they will pay close attention to this incident."
Yao Haifang believes: "What should be paid more attention to in this matter is who is producing pesticides that are not allowed to be used, who uses pesticides that are not allowed to be used in food, and whether the units that produce pesticides should also bear corresponding responsibilities." Whether it is the food safety law or other administrative law enforcement processes, the correct approach should be to start systematic linkage management from the source, rather than just grasping the end. If there are problems with small vendors in the sales system, they will be severely punished.
The State Council inspection team looked up the administrative punishment ledger of Yulin Municipal Market Supervision Bureau and found that since 2021, the bureau has imposed a fine of more than 50,000 yuan on the main body of small and micro markets in 21 food safety cases, with the case value ranging from several tens to several hundred yuan. The amount of the fine is 100 to 200 times of the illegal income, and some cases exceed 3,000 times.
The members of the inspection team raised such a question at the scene: "A case value of tens of dollars, fined him tens of thousands of dollars, is the penalty quite disproportionate?"
How to achieve a fair penalty is a long-term problem explored by administrators from legislation to law enforcement. As an expert in the field of economic law, Yao Haifang expounded his thinking.
CCTV reporter: How should the amount of administrative fines be determined? Is there a clear standard?
Yao Haifang:Everyone is concerned about the determination of the amount of administrative punishment. Our legal rules are amplitude-based in terms of the amount. For example, a fine of more than 10,000 yuan and less than 50,000 yuan may be imposed, and a corresponding fine may also be imposed. For example, the Anti-Monopoly Law stipulates that the sales of the previous year should be 1%— 5% fine, which is a concrete form of expression.
On the other hand, in fact, the whole legal system has a basic principle for punishment of illegal acts — — Our punishment should not only punish the illegal behavior, but also prevent the illegal behavior from happening again. These two purposes are parallel. Based on these two purposes, a reasonable punishment standard needs to consider the following factors.
First of all, the severity of this kind of punishment should be related to the subjective state of the offender. Did he intentionally violate the law or negligently lead to negligence?
Second, punishment is related to the social harm caused by illegal acts. Although some acts are illegal, but the harm they cause has not actually occurred, or the impact is not great, then the punishment may be lighter. If the illegal act has caused very serious damage, the punishment will be heavier accordingly.
Third, punishment is related to illegal circumstances. Some illegal acts take very bad measures, deliberately evade the law, or commit repeated crimes, and continue to violate the law after verbal warnings and warnings from relevant departments, so this punishment must be more severe.
So a punishment decision is actually related to many factors. The law stipulates that a fine of more than 10,000 yuan and less than 50,000 yuan should be imposed. Whether to impose a fine of 10,000 yuan or 50,000 yuan should be supported by specific circumstances and needs to be judged by law enforcement personnel.
CCTV reporter: How can the administrative punishment be over-punished?
Yao Haifang：First, the punishment for illegal acts is not only a form of fine, but also a form of revocation of business license, prohibition of business activities, and even more serious, there is the crime of producing and selling fake and shoddy goods in the criminal law. These administrative penalties and criminal penalties should be applied respectively according to the different nature, circumstances and consequences of the parties’ actions, so we say that fines are only one of the means.
Secondly, in order to clarify the basis of punishment, the previous laws set the lower limit and the upper limit of the fine amount when formulating the law. This relatively fixed standard fine method has the advantage of being relatively clear, helping the parties to understand the extent of his punishment and helping law enforcement departments to quickly determine the specific fine amount. However, when it is applied specifically, it may lead to accidental injury due to its lack of flexibility or flexibility.
The individual vendor’s sales amount is not high, even if he is fined at the starting point, the damage actually caused does not match his affordability.
In this case, we can adopt some relatively flexible law enforcement methods. For example, if an individual trader violates the law, but he didn’t intentionally or actually cause great damage, it can be considered whether to directly investigate and deal with it together, or to give corresponding warnings or take other measures.
How to control administrative law enforcement within a reasonable limit should not only punish illegal acts according to law, but also not cause excessive burden to citizens’ freedom of movement and property safety. The field of administrative law has paid great attention to this matter. We also see that the State Council’s supervision is to prevent the emergence of some unsatisfactory means, such as escrow with fines and increasing fiscal revenue with fines.
CCTV reporter: How to prevent improper administrative punishment?
Yao Haifang:When designing the law, we will also worry that some law enforcement officers may abuse their power. For example, it was a relatively minor illegal act, and he deliberately gave a very severe punishment, or it was a relatively serious illegal act, but because of human relations, the final punishment was relatively light, which made the illegal act not get the punishment it deserved. In fact, there must be a legal supervision system, including publicizing the corresponding punishment results to the society and accepting the supervision of the public, the media and the legal supervision department.
How to avoid or correct the deviation in law enforcement, there are such considerations in the system design. In our government and courts, there are corresponding institutional arrangements to restrict administrative personnel and prevent abuse of power.
We can carry out administrative reconsideration and administrative litigation on this punishment. Administrative reconsideration is to check whether the punishment result is reasonable and legal by other administrative department personnel different from the law enforcement personnel. Administrative litigation is to judge whether the government’s administrative actions are reasonable and legal through the judges of the people’s courts.
On July 30th, the State Council issued the Decision on Cancelling and Adjusting a Batch of Fines, which cancelled 29 fines set by administrative regulations and departmental rules in the fields of public security, transportation and market supervision. On August 17th, the General Office of the State Council issued the Opinions on Further Standardizing the Establishment and Management of Administrative Discretion Benchmarks, proposing that governments at all levels and their departments shouldResolutely avoid arbitrary fines, strictly prohibit the use of fines to generate income, and strictly prohibit the ranking of fines or as indicators of performance appraisal..
Yao Haifang said that the cancellation of some penalties does not mean relaxing the supervision of the market, but to give market operators greater freedom. In this process, we will continue to adhere to the bottom line rules and continuously optimize the business environment.