Doctrinal Analysis On The Crime Of Food And Drug Supervision Malfeasance

The frequent occurrence of food safety crimes has attracted widespread attention from society.In response to the serious threat of food safety crimes and to tighten the criminal net for punishing crimes against food safety,Article 49 of Criminal Law Amendment(VIII)singled out the crime of food supervision malfeasance from the crime of malfeasance in order to strengthen the safety supervision in the food field.However,the high degree of abstraction in the description of the crime poses certain difficulties for the determination of this crime.In order to enhance the focalization,applicability and operability of the legislation and highlight the special prevention of drug supervision malfeasance crimes,Article 45 of Criminal Law Amendment(XI)at the end of 2020 amended this crime to the crime of food and drug supervision malfeasance,and further refined the crime situation to urge supervisors to perform their duties and responsibilities,so as to avoid the hidden danger brought by malfeasance to food and drug safety to the greatest degree.Since Criminal Law Amendment(XI)has just been introduced,there are not many studies on the crime of malfeasance in food and drug supervision,and there are still different opinions in theory and practice on the protection of legal interests,the determination of constitutive requirements and the treatment of concurrence,which are studied in this paper.In addition to the introduction and conclusion,the main part of this paper consists of four parts.The first part reveals the legislative process of this crime and discovers the difficulties of identification in judicial practice.Criminal Law Amendment(VIII)in2011 added the crime of food supervision malfeasance,Criminal Law Amendment(XI)in 2020 added the crime of drug supervision malfeasance,and further refined the crime of food supervision malfeasance,which is collectively called the crime of food and drug supervision malfeasance.However,the application of this crime still faces many dilemmas: controversial protection of legal interests,inconsistent determination of the constitutive requirements and unclear disposition of concurrence and criminal patterns.The second part sorts out and evaluates relevant theories to determine the legal interests protected by this crime.Regarding the protection of legal interests of this crime,there is a dispute between “single legal interest theory” and “compound legal interest theory” in the theoretical circles.The theory of “single legal interest” cannot perform the explanatory function of legal benefits on the constitutive requirements,which is a theoretical misinterpretation of the legislative spirit of this crime.The legal interest of this crime should be defined as compound legal interest that takes into account the supervisory activities of food and drug safety supervisory organs and public safety,which can explain the legislative purpose of this crime and avoid the blurring of the crime standard.The third part interprets the constitutive requirements of this crime,analyzes the objective aspects,criminal subjects,and subjective guilt.Firstly,the objective aspects of“abuse of power” and “dereliction of duty” in this crime can be manifested as both act and omission.The newly added types of behavior and the meaning of “serious consequences and other serious circumstances” in Criminal Law Amendment(XI)need to be further explained,and the causal relationship between the two should be based on the “conditional theory”.Secondly,the scope of the subject of this crime should be judged by the core of “engaging in public affairs”,which should include not only the directly responsible supervisory personnel and other directly responsible personnel in the food and drug regulatory departments with food and drug safety supervision responsibilities,but also the directly responsible supervisors personnel and other directly responsible personnel in local people’s governments at or above the county level.Thirdly,in the absence of a clear distinction between the subjective guilt of this crime,the subjective guilt form of “abuse of power” and “dereliction of duty” should be recognized as intent and negligence according to the general theory of criminal law.The fourth part clarifies the handling methods of the concurrence of this crime and related charges,and delineates the form of accomplice and attempted offense in this crime.When this crime gets concurrent with ordinary crime of dereliction of duty such as the crime of abuse of authority or dereliction of duty,special crime of dereliction of duty such as the crime of indulging producing and selling shoddy goods,or the crime of irregularities for favoritism non-transferring criminal cases,as well as specific crimes that endanger food and drug safety,the principles of “special law is prior to general law” and “severe law is prior to light law” should be followed.Whoever commits this crime and commits the crime of taking bribes shall be punished according to the provisions of combined punishment for several crimes.Judicial practice should accurately define the accomplice and attempted offense of this crime,and make appropriate measurements of the perpetrator’s crime by comparing the magnitude of the effect and the severity of the hazard.