| From September 2019 to December 2020,the Supreme People’s Procuratorate,the state market supervision administration and the State Food and Drug Administration jointly launched a special action on the implementation of the "four stricts" of food and drug safety.According to preliminary statistics,during this period,the national market supervision department investigated 284800 illegal cases involving food safety and confiscated 2.725 billion yuan;The procuratorial organ approved the arrest of 3945 criminal cases involving food and drug safety,7298 people and the prosecution of 8791 cases and 17066 people.Supreme People’s Procuratorate The procuratorial organ prosecuted 8791 cases involving food and drug safety crimes and 17066 people.This paper mainly studies the illegal acts of personnel responsible for food safety supervision,and intends to analyze and discuss the crime of dereliction of duty in food supervision by using empirical analysis,normative analysis and literature analysis.Based on the discussion and analysis of the judicial application of the crime of dereliction of duty in food supervision in practice,this paper focuses on the overview and composition of the crime of dereliction of duty in food supervision,the current situation of the application of the crime of dereliction of duty in food supervision and the problems existing in the judicial application,puts forward suggestions to improve the judicial application of the crime of dereliction of duty in food supervision,and explores the judicial application of the crime of dereliction of duty in food supervision in practice.After collecting all the criminal cases about this crime in China judicial document network,we select the sample cases worthy of study.After statistical analysis,we find some problems in the judicial application of this crime:first,there are some difficulties in the identification of the constituent elements of this crime.Second,the definition of related charges of this crime is vague.Third,the identification of accomplice relationship is lack of clear explanation.Fourth,the penalty types of this crime are monotonous.Fifth,the criminal punishment of this crime tends to be mitigated.Combined with the application of judicial practice,in view of the above problems,this paper puts forward the following views: first,for the identification of objective elements,the harmful behavior is still divided into abuse of power and dereliction of duty,which is refined into the behavior mode added in the Eleventh Amendment to the criminal law.For the interpretation of harmful results,please refer to the interpretation on the application of law in dereliction of duty cases issued by the Supreme People’s court and the Supreme People’s Procuratorate,Both direct cause and indirect result of the crime should be recognized;In the subjective aspect,abuse of power malfeasance is manifested as intention,including direct intention and indirect intention.Second,on the basis of meeting the constitutive elements of this crime,the harmful results must be related to food safety accidents.Third,the perpetrator jointly committed the act of this crime on the basis of joint intention.Fourth,there are only two kinds of free punishment,and the judicial organ has less choice of punishment when convicting and sentencing.Fifth,the number of cases exempted from criminal punishment is significantly more than that of punishment,which does not match the purpose of punishment.Based on the above problems of judicial application,this paper gives the following suggestions: first,improve the judicial interpretation of this crime and clarify the identification of constituent elements.The second is to clarify the relationship between charges,which can be applied in practice.Third,clarify the behavior and identification of joint crime of this crime.Fourth,appropriately expand the types of punishment of this crime,so that the judicial organs can flexibly apply it.Fifth,give corresponding punishment to the cases with serious harmful results,so as to adapt the punishment of offending. |
