| In practice,more and more cases show that when administrative law enforcement officers are involved in the identification of the administrative counterpart in the food and drug industry,they gradually fall into such a predicament that under the premise of the existence of controversial and vague evidence and limited evidence,the parties have the right to be the administrative counterpart However,due to the lack of evidence of immediacy,or when the behavior of the parties has a certain degree of social harm but can not be properly punished and effectively restricted due to the blank of the law,The legitimate rights and interests of citizens are protected within the proper scope,the authority of law is upheld,and social justice is achieved.This new predicament is different from that of a single administrative counterpart in the past.It is a product of the contradiction between the development of the fine division of labor in the modern industry and the lack of legal regulation.The cases involved are often relatively new and complex,Health rights and interests and life safety and other vital interests,so it is also more difficult to deal with,a slight mistake will fall into the dilemma of law enforcement.In fact,behind the dilemma is the existence of the legal theory and law enforcement issues,including the improper storage of food and drug legislation,the lack of supervision of this type of possession holds the problem of the lack of a more uniform identification of illegal Depositors,holders of the criterion of discrimination,as well as the evidence of evidence too difficult for the executive authorities to obtain evidence.Specifically,first of all,most of the prescriptions for food and medicine address such issues as the production,sale and use of products.There are only a few provisions concerning the storage and possession;secondly,the lack of consummation and optimization of the type of the principal part of the responsibility and the lack of attention paid to the behavior of the principal part of the regulatory body.Finally,it is difficult for the administrative department of food and drug industry to obtain evidence in the real law enforcement,which makes it easy for the administrative counterpart to make use of the evidence Rules loopholes and conceal or falsify the evidence,walking in the gray area of law.The reasons,first,the root cause,the type of responsibility in China’s administrative law is not perfect,has always been to follow the act of responsibility,the lack of state-based administrative penalty model,at the same time,China’s food and drug safety management philosophy The main reason is that the legislation of our country’s food and medicine lagsbehind the supervising of the top-package behavior in the aspect of the administration of food and drug,some real problems Third,the direct cause,the food and drug administration of the system of proof of the burden of proof is not reasonable enough,to some extent,the proof of one of the administrative organs is too high and too strict,not as the complexity of the nature of the case,The reality of the ease of operation to be flexible distinction and balance.To sum up,it is precisely because of the imperfect type of administrative responsibility for food and drug legislation,the lack of implementation of the concept of risk prevention in the legislation,the lack of legislation on the definition of the administrative counterpart,and the insufficient allocation of the burden of proof in administrative law enforcement Reasonable assists,the combined effect of the three,leading to the law enforcement departments into lawless door,high embarrassment of law enforcement,it is difficult to achieve the administration according to law and the realization of fair and equitable unity.Therefore,legislation on the improper storage and possession of food and drug should be legislated.Then the judgments of the administrative counterparts in such cases should be substantiated,supplemented by the distribution of the burden of proof in the process of optimization and identification Policy and solve the problem.To put it in detail,firstly,it is illegal to include the legalization of the hazard form into the legal regulation,that is,to the general business operation of the food and drug industry,where the storage and possession of counterfeit and shoddy products obviously exceeds the reasonable range for personal use;For the main body with public welfare in the food and drug industry,it is illegal to store and hold counterfeit and inferior products and violate the public interests of the society.Secondly,it is clearly identified as the judgment element of the standard,that is,the combination of the relational elements,the formal elements and the target elements To correctly identify the administrative counterparts;the other hand,to optimize the identification of administrative counterparts in the process of the burden of proof of the distribution of responsibility,adhere to the principle of the main burden of proof burden of government agencies remain unchanged,the administrative organ to reduce the burden of proof,the proof of some facts Obligations to the parties or third parties conditionally.That is,the administrative organ should only provide evidence that meets the specific standards for the legalization of hazardous forms and identify the relative elements of the administrative counterparts,and prove the extent to which there are reasonable grounds for believing that the facts of administrative illegality exist.However,the parties can overturn the above presumption byproviding counter-evidence,and the parties have evidence of "unknowingly holding or depositing" or other "fair and reasonable possession and deposit",and the parties have evidence of "unknowing the top pack." At the same time,for the sake of safeguarding the interests of the third party,it is easier for the third party to prove and help to improve the administrative efficiency.The third party should bear some facts to prove the burden of proof.Of course,the above three solutions to the problems should all satisfy the practical premise that the facts of the case are questionable and the evidences are insufficient,and the systems should be closely linked to each other and should be used in conjunction with each other to solve the problems identified by the administrative counterparts in the food and drug industry. |
