Referee's opinion: food inspection shall be carried out independently by the inspectors designated by the food inspection agency, and the inspectors shall have corresponding qualifications. In this case, one of the staff engaged in the inspection of food microorganisms and other items did not have the qualifications to engage in the testing of food microbiology items, and from the perspective of the work tasks of the microbial testing of the samples involved in the case, it was not auxiliary work, and the testing work he engaged in had a substantial impact on the test results. Accordingly, the inspection and testing report issued by the inspection agency has no legal effect and cannot be used as the factual basis for the administrative organ to impose an administrative penalty on the party.
Chongzuo City, Guangxi Zhuang Autonomous Region
Intermediate People's Court
Administrative Judgments
(2020) Gui 14 Xing Zhong No. 16
The appellant (defendant in the first instance) is the Fusui County Administration for Market Regulation, and his domicile is No. 6, Tongzheng Avenue, Xinning Town, Fusui County, Guangxi Zhuang Autonomous Region.
The legal representative is Huang Song, the director of the bureau.
Entrusted agent: Pan Zhengyuan, practicing lawyer of Guangxi Hengju Law Firm.
The appellee (the plaintiff in the first instance) is Jinli Food Processing Factory in Fusui County, with its domicile in Nanmi Village, Chengnan District, Xinning Town, Fusui County, Guangxi Zhuang Autonomous Region.
The person in charge, Qin Liuxin, female, born on January 20, 1979, Zhuang nationality, operator of Jinli Food Processing Factory in Fusui County, lives in Jiangzhou District, Chongzuo City, Guangxi Zhuang Autonomous Region.
Entrusted agent Zhong Zhihong, a practicing lawyer of Guangxi Nanmi Law Firm.
The appellant, Fusui County Market Supervision Administration (hereinafter referred to as Fusui County Municipal Supervision Bureau), filed a lawsuit with this court against the administrative judgment of the People's Court of Fusui County, Guangxi Zhuang Autonomous Region (hereinafter referred to as Gui 1421 Xingchu No. 10) for administrative punishment with the appellee Fusui County Jinli Food Processing Factory (hereinafter referred to as Fusui County Jinli Processing Factory), and this court formed a collegial panel for trial in accordance with law after the case was filed on January 20, 2020. The trial before the Court has now been concluded.
The court of first instance ascertained that the Fusui Jinli Processing Factory was established on July 20, 2016, and was engaged in the processing and sales of fresh wet rice noodles. According to the requirements of the 2018 annual sampling and monitoring work of the Food and Drug Administration of Guangxi Zhuang Autonomous Region, the Municipal Supervision Bureau of Fusui County sent staff to the prepared fresh wet rice noodles (pressed flour) produced and operated by Fusui Jinli Processing Factory at 3 o'clock on November 9, 2018 to supervise and sample, and sampled 40 kg of prepared fresh wet rice noodles produced in this batch. The sampled fresh wet rice noodles were sent to Guangxi Minsheng Zhongjian Testing Co., Ltd. at 10:30 on the same day.
On December 11, 2018, Guangxi Minsheng Zhongjian Testing Co., Ltd. issued the "Inspection and Testing Report" (report number: SP201814509), and the inspection conclusion was "After sampling inspection, the coliform bacteria project did not meet the requirements of DBS45/050-2018 of the "Local Food Safety Standard for Fresh and Wet Rice Noodles", and the inspection conclusion was unqualified. The "Inspection and Testing Report" and the "Notice of Correction Order" were delivered to Fusui Jinli Processing Plant on December 13, 2018, and informed them of the right and time limit for applying for re-inspection and objection review, but Fusui Jinli Processing Factory did not apply for re-inspection within the re-inspection period.
On December 17, 2018, Fusui Jinli Processing Plant applied for an objection review. On December 28, 2018, Guangxi Minsheng Zhongjian Lian Testing Co., Ltd. issued Gui Zhong Jian Lian (Quality) Zi [2018] No. 016 "Reply on the Inspection of Prepared Fresh Wet Rice Noodles (Pressed Flour)", and the conclusion of the reply was "No.: The inspection conclusion of the SP201814509 Fresh Wet Rice Flour (Pressed Flour) is accurate".
On December 19, 2018, the Fusui County Municipal Supervision Bureau filed a case for investigation, and on January 16, 2019, Fusui Jinli Processing Factory made a rectification report to the Fusui County Municipal Supervision Bureau. On March 12, 2019, the Fusui County Municipal Supervision Bureau made an administrative penalty decision [2019] No. 11 on the Fusui Jinli Processing Factory, after filing a case, investigating, hearing, and informing the Fusui Jinli Processing Factory, and determined that the production and operation of coliform bacteria in the Fusui Jinli Processing Factory did not meet the food safety standards for the preparation of fresh wet rice noodles (squeezed flour), which violated the provisions of Article 34 (13) of the Food Safety Law of the People's Republic of China. In accordance with the provisions of Article 124 of the Food Safety Law of the People's Republic of China, Fusui Jinli Processing Factory was punished as follows:
1. Confiscate illegal gains of RMB 8.00;
2. A fine of RMB 58,000.00 will be imposed.
It was also ascertained that the inspector of the "Inspection and Testing Report" in this case was Huang, who graduated in June 2018 and studied at Guangxi Health Vocational and Technical College, majoring in medical laboratory technology, and Guangxi Minsheng Zhongjian Testing Co., Ltd. approved Huang as an inspector in the company's microbiology room on October 23, 2018.
The court of first instance held that, based on the institutional reform, the Fusui County Food and Drug Administration was merged with other units to form the defendant Fusui County Market Supervision and Administration Bureau, which is the food and drug supervision and administration department within the administrative area of Fusui County, and exercises the functions and powers of food and drug supervision and administration in accordance with the law. Article 18 of the "Conditions for the Qualification of Food Inspection Institutions" formulated by the State Food and Drug Administration and the Certification and Accreditation Administration of the People's Republic of China stipulates that "the inspection agency shall have sufficient technical personnel, and its quantity, professional and technical background, work experience, and inspection ability shall match the inspection activities carried out, and meet the following requirements:...... (3) Inspectors shall have a college degree or above in food, biology, chemistry and other related majors, and have at least 1 year of food testing experience, or have 5 years or more of food testing experience. This article stipulates the conditions that the inspectors of food inspection institutions should have.
In this case, the basis for the administrative penalty imposed by the Fusui County Food and Drug Administration was the Inspection and Testing Report issued by Guangxi Minsheng Zhongjian Testing Co., Ltd., and the inspector who made the test report was Huang, who graduated in June 2018 and obviously did not have the food inspection qualifications mentioned in the above provisions. Because the inspectors of the test report do not have the corresponding inspection qualifications and violate the provisions of Article 84 of the Food Safety Law of the People's Republic of China, the "Inspection and Testing Report" issued by Guangxi Minsheng Zhongjian Testing Co., Ltd. has no legal effect and cannot be used as the basis for determining the facts. Therefore, the Fusui County Food and Drug Administration determined the facts on the basis of the test report and made the administrative penalty decision of Fushi Drug Administration [2019] No. 11, which is unclear and insufficient evidence, and should be revoked in accordance with the law.
To sum up, the court of first instance, in accordance with the provisions of Article 70, Paragraph 1 of the Administrative Litigation Law of the People's Republic of China, ruled to revoke the administrative penalty decision of the Fusui County Food and Drug Administration on March 12, 2019 [2019] No. 11. The litigation fee of this case is 50 yuan, which is borne by the Fusui County Market Supervision and Administration Bureau.
The appellant, the Fusui County Municipal Supervision Bureau, claimed that the (2019) Gui 1421 Xingchu No. 15 Administrative Judgment was wrong in determining that the inspector of the SP201814510-C inspection and testing report was Huang Moumou. The inspector of the inspection and testing report is Zhou Zhiyuan, not Huang. Huang Moumou is not the inspector of the report, and only checks the inspection data. Zhou Zhiyuan graduated from Guangxi Agricultural Vocational and Technical College on June 30, 2017, majoring in food nutrition testing, and joined Guangxi Minsheng China Inspection and Inspection Union Testing Company on July 10, 2017 to engage in food inspection and testing, and on November 9, 2018, when undertaking the inspection and testing of the samples involved in the case, he has more than 1 year of food testing work experience, and meets the relevant provisions of the "Food Inspection Agency Qualification Accreditation Conditions". The approver of the report, Wu Qiyi, the reviewer Xian Wenjian, and the inspector Zhou Zhiyuan meet the statutory qualification requirements, and the report has legal effect.
The appellee, Fusui County Jinli Processing Factory, did not submit a written opinion to this court.
During the second-instance trial, none of the parties submitted new evidence.
After examination, the facts ascertained by the court of first instance were confirmed by this court, and accordingly, the facts ascertained by this court were consistent with the facts ascertained by the court of first instance.
According to the Court, Article 85 of the Food Safety Law of the People's Republic of China stipulates that food inspection shall be carried out independently by inspectors designated by food inspection agencies. Paragraph 3 of Article 18 of the Conditions for Qualification Accreditation of Food Inspection Institutions stipulates that inspectors shall have a college degree or above in food, biology, chemistry and other related majors, and have at least 1 year of food testing experience, or have at least 5 years of food testing work experience.
After investigation, Guangxi Minsheng Zhongjian Testing Co., Ltd. designated Zhou Yuanzhi and Huang Cailu, staff engaged in the inspection of food microorganisms and other items, to test the microorganisms of the samples involved, and Zhou Yuanzhi was responsible for sampling and weighing the samples involved in the case and the total number of colonies of the samples, coliform bacteria, Staphylococcus aureus and Salmonella items with a dilution of 10-1 sample homogenization and other matters; Huang Cailu is responsible for the preparation of coliform bacteria and Staphylococcus aureus with a dilution of 10-2, the preparation of a sample with a dilution of 10-3 for the total number of colonies, and the inoculation of all dilution samples. This fact is supported by the evidence in the case such as Guangxi Minsheng Zhongjian Testing Co., Ltd.'s approval of Zhou Yuanzhi to start on September 7, 2017 and Huang Cailu to start testing and testing food microorganisms on October 23, 2018, and the Fusui County Food and Drug Administration's inquiry and investigation records of Zhou Yuanzhi and Huang Cailu.
According to the ascertained facts, Huang Cailu has less than one year of food testing experience, and she does not have the qualifications to engage in food microbiology project testing. Judging from Huang Cailu's work task on the microbial testing of the samples involved in the case, it was not auxiliary work, and her work on the microbial testing of the samples involved in the case had a substantial impact on the results of excessive coliform bacteria in the samples involved in the case.
Accordingly, the "Inspection and Testing Report" issued by Guangxi Minsheng Zhongjian Testing Co., Ltd. with the signature of Zhou Yuanzhi has no legal effect and cannot be used as the factual basis for the Fusui County Municipal Supervision Bureau to impose an administrative penalty on Fusui Liu's Rice Flour Factory. The first-instance judgment found that the inspector of the "Inspection and Testing Report" issued by Guangxi Minsheng Zhongjian Testing Co., Ltd. was Huang Moumou's error, and this court corrected it. The first-instance judgment revoked the administrative penalty decision of the Fusui County Food and Drug Administration on March 12, 2019, and the Fushi Drug Administration [2019] No. 11 was not improper, and this court upheld it.
In summary, the first-instance judgment should be upheld because the facts found are clear, the evidence is credible and sufficient, and the law is correctly applied. The appellant's grounds for appeal from the Fusui County Administration for Market Regulation cannot be sustained, and this court does not support it. In accordance with the provisions of Article 86 and Article 89, Paragraph 1, Item 1 of the "Administrative Litigation Law of the People's Republic of China", the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
The second-instance case acceptance fee of 50 yuan is to be borne by the appellant, the Fusui County Market Supervision and Administration Bureau.
This judgment is final.
Chief Judge Nong Lihai
Judge Liu Chenggong
Adjudicator: Tao Yuanyuan
March 11, 2020
Judge's Assistant: Xie Xixing
Clerk: Chen Yangyu
Attached: The relevant legal basis for the application of this judgment
Administrative Litigation Law of the People's Republic of China
Article 86:People's courts shall form a collegial panel in appeal cases and hold in-court proceedings. Where, after reading the case file, investigating, and questioning the parties, the collegial panel finds that it is not necessary to hold in-court proceedings if no new facts, evidence, or reasons have been submitted, it may also not hold in-court proceedings.
Article 89:People's courts hearing appeals are to handle them separately in accordance with the following circumstances:
Where the facts ascertained in the original judgment or ruling are clear and the laws and regulations are correctly applied, the judgment or ruling rejects the appeal and upholds the original judgment or ruling;
(2) Where the facts ascertained in the original judgment or ruling were erroneous, or the applicable laws or regulations were erroneous, the judgment is changed, revoked, or modified in accordance with law;
(3) Where the basic facts found in the original judgment are unclear or the evidence is insufficient, remand to the original people's court for new trial, or change the judgment after clarifying the facts;
(4) Where the original judgment omits parties or makes an unlawful judgment in absentia, or otherwise seriously violates legally-prescribed procedures, a ruling is made to revoke the original judgment and remand to the original people's court for new trial.
Food Safety Law of the People's Republic of China
Article 85 The food inspection shall be carried out independently by the inspectors designated by the food inspection institutions.
Conditions for Qualification Accreditation of Food Inspection Institutions
Article 18 (3) Inspectors shall have a college degree or above in food, biology, chemistry and other related majors, and have at least 1 year of food testing experience, or have 5 years or more of food testing work experience.
Source: "Bright Sword has a law" WeChat public account 2024-07-01
Editor: Huang Keshu
First Trial: Jiang Hao
Reviewer: Gu Yan
Final review: Yang Hong
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