A Study On Administrative Food Safety And Consumption Warning Ruled By Law

In China, the publishing subjects of food safety and consumption warning system includes the consumer association and the administrative organs with legitimate authority.The former is the founder of consumer warning system. It establishes and completes the information platform and the system basis of publishing food safety and consumption warning through starting the "consumption warning project", and formulating the Implementation Rules of Consumption Warning System and taking other measures, giving full play to the role of the civil autonomy organization in social supervision. Any disputes about the food safety and consumption warningpublished by the consumers’ association can completely be handled through civil lawsuit. And there are many relevant cases in practice. In recent years, with the increasing food safety accidents, the administrative organs more and more tends to adopts the method of publishing food safety and consumption warning, a new type of regulatory method in advance, to effectively resolve and prevent the risk of administrative execution and the risk of social security.But due to the particularity of the legal status of the administrative organs, as well as the lack of the corresponding laws of food safety and consumption warning and the relief channels, any mistakes in the released food safety and consumption warning may lead to irreparable damage for the publishing subjects and lead to loss of social net welfare. The cases like "the arsenic events of the Nongfuspring" and the "Jinhao tea oil event" has exposed many problems in the publishing of the food safety and consumption warning in China, which needs to carry on effective legal governance. The paper tries to solve the dilemma faced by the current administrative food safety and consumption warning publishing along the layer-layer progressive thinking including construction of basic theories, designing of system basis and relief channels.To be specific:The paper, starting from the basic connotation, restates the concept and nature of food safety and consumption warning. Based on the connotation of the concept and the extensive definition, the paper put forward to three types of through food safety and consumption warning through the comprehensive analysis of semantics, legal norms, and law enforcement practice. The warning mainly contains risk warning, illegal activities warning and other information warning. Based on the nature orientation, the paper recognizes the characteristic that the food safety and consumption warning belongs to factual behavior, but it also tries to weaken the entirely different distinction between different types of administrative behavior. The paper suggests to adhere to the pragmatic style to re-examine the intrinsic properties f the warning, so as to ensure the balance between the maintenance of social and public interests and protection of the rights and interests of individuals. Then, it starts from the perspective of typed research to pull out the subject of legal relation involved in food safety and consumption warning, finding two types of food safety and consumption warning with totally different operation mechanism, namely the "two sides" warning and the "three sides " consumer warning. The former is under relatively weak control of the laws, thus it has less disputes. The latter, because of involving in specific food producers, sellers, will have problems, such as the abuse of administrative power and damage of enterprise legal rights and interests and social welfare, once the administrative organs publishes the food safety and consumption warning in a wrong manner. Therefore, the "three sides" food safety and consumption warning should be the concerns of the law. Analyzed from the perspective of the legitimacy, it is the inevitable requirement that the administrative authorities publish food safety and consumption warning, which not only is the guarantee of the citizen’s right to know, but also is the intrinsic motivation of improving the efficiency of administrative action.However, it can be easily concluded through the observation of some administrative norms and publishing practices that the food safety and consumption warning lacks proper legislative support, and it is also in a mess in practice. The regulations on consumption warning are distributed inthe norms of all levels of food safety law and the lower the level ofthe specification is the more intensive the food safety and consumption warning is. The administrative organs are endowed with too discretionary power. At least three types of problems in food safety and consumption warning can be reflected through "typical events" : the first one is that the publishing subject and permissions is unknown; the second is that the announced conditions, contents and procedures are unclear;Thirdly,the lack of legal responsibility of illegal publishing and the relief channels.Compared with the legislation and the judicial regulation of the countries such as U.S, Japan and Germany, it can be found that the food safety and consumption warning is closely connected with due process, legal reservation and proportion principal, which is an enlightenment on the completion of the domesticpublishing system of food safety and consumption warning.The legalization of the publish of food safety and consumption warning should be based on categorizing distinguish, and the overall consideration of administrative cost and efficiency, public health and safety, participation rights of the specific third party program and the judicial review of cost and efficiency should ensure the maximum public welfare. All these can be carried out from three aspects including legislation structure, judicial review and administrative self-control.As for the legislation structure, The Food Safety Law and The Administrative Measures for the Publish of the Food Safety Informationandother laws and regulations regulating food safety have not been systematically and comprehensivelyformulated, thus it is necessary to the legislative design of food safety and consumption warningfrom macroscopic and microscopic angles. From a macro point of view, it is necessary to continuously integrate the legislative models of food safety and consumption warning;From the microcosmic point of view, it is necessary to define the publishing subject. authority and procedures offood safety and consumption warning,especially paying attention to the specific settings of the publishing process. The procedure regulation of the "two sides"publish of food safety and consumption warningcan be appropriately loosen. And in order to ensure the timeliness of the “three sides" publish of food safety and consumption warning, it is necessary to shall give priority to establishing three most critical systems including the explainingsystem, the hearing system, and the time limit system, making the stakeholders have the right to participate in the publishing program, and understand the basis, process and result of related operations.In terms of judicial review, it is necessary to make clear the justiciability, intensity of judicial review and types of sentence from the perspective of the new "Administrative Procedure Law".Firstly, expound the concept of administrative actrelying on the legal interpretation, and analyze the “three sides”food safety and consumption warning from the angle of substantive law policy; secondly, under the "legitimacy examination standards", take the basic principles of administrative law as the trial basis of food safety and consumption warning cases. Based on this, the review intensity of the food safety and consumption warning with different content can be appropriately distinguished; finally, establish enough rights protection network for the victims of the illegal food safety and consumption warning through the construction of litigation types. In terms of administrative self-control, first of all, refine the legislation principles and standards through making administrative rules,; secondly, establish error message complaints and processing platform and complete the internal processing system of the administrative system; Thirdly, give full play to the function of administrative remedy and implement the accountabilitysystem. As it were, seeking for the specifications of publishing food safety consumption warning within administration maybe is the most effective way.