Referee's point of view
In this case, although the defendant made the Notice of Order correction on August 19, 2020 in accordance with the relevant provisions of the Administrative Punishment Law of the People's Republic of China, the Notice of Order correction was made at the same time as the Administrative Punishment Decision Letter involved in the case, and according to the provisions of the Administrative Punishment Law of the People's Republic of China on ordering the parties to correct or correct the illegal acts within a time limit, the Notice of Order Correction was made. It is reasonable to inform the offender in accordance with law after discovering the illegal act and before making an administrative punishment decision, and the defendant made a "Notice of Order correction" at the same time as making the "Administrative Punishment Decision" involving the case, which is an administrative act procedural violation.
Editor's note
According to the provisions of the Administrative Punishment Law of the People's Republic of China on ordering the parties to correct or correct the illegal acts within a time limit, the "Notice of Order Correction" should have been informed to the offender in accordance with the law after the illegal act was discovered and before the administrative punishment decision was made, and the defendant made the "Notice of Order Correction" at the same time as the "Administrative Punishment Decision" involving the case, which was an administrative act procedure violation.
However, Article 23 of the Administrative Punishment Law of the People's Republic of China (amended in 2017), which was effective at the time, clearly stipulates that when an administrative organ imposes an administrative penalty, it shall order the parties concerned to make corrections or correct the illegal conduct within a time limit. The law stipulates that corrections are ordered "at the time of administrative punishment", and does not stipulate that it must be made before the administrative punishment decision is made! "When imposing an administrative penalty" obviously includes "making an administrative penalty decision at the same time"!
Judgment documents
Daowai District People's Court of Harbin City, Heilongjiang Province
Administrative decisions
(2020) Black 0104 Line 40
The plaintiff, Zekun Food Processing Factory, Daowai District, Harbin City, was domiciled at Kongjiadian, Changsheng Village, Tuanjie Town, Daowai District, Harbin City.
The person in charge is Wang Jun, the director of the factory.
Entrusted agent Zhong Xiaojun, lawyer of Heilongjiang Tongchang Law Firm.
Entrusted agent Sun Haodi, a trainee lawyer at Heilongjiang Tongchang Law Firm.
The defendant, the Market Supervision and Administration Bureau of Daowai District, Harbin City, was domiciled at No. 376, Dongzhi Road, Daowai District, Harbin City.
The legal representative is Zhang Kai, the director.
Liu Yuzhu, head of administration, is a second-level researcher of the Market Supervision and Administration Bureau of Daowai District of Harbin City.
Entrusted agent Zhang Yejian, chief of the legal section of the Market Supervision and Administration Bureau of Daowai District, Harbin City.
Entrusted agent Zhang Xiye, chief of the food section of the Market Supervision and Administration Bureau of Daowai District, Harbin City.
The plaintiff, Zekun Food Processing Factory, Daowai District, Harbin City, was dissatisfied with the administrative penalty decision of The Harbin Daowai District Market Supervision and Administration Bureau on August 19, 2020, and filed an administrative lawsuit with this court on September 11, 2020. After accepting the case on September 17, 2020, the court served a copy of the complaint and the notice of response to the lawsuit to the defendant, the Daowai District Market Supervision and Administration Bureau of Harbin City, within the statutory time limit. This court formed a collegial panel in accordance with the law and heard the case in public on November 27, 2020. The plaintiff, Wang Jun, the person in charge of the Zekun Food Processing Factory in Daowai District, Harbin City, and the entrusted agents Zhong Xiaojun and Sun Haodi; the defendant, Liu Yuzhu, the administrative responsible person of the Daowai District Market Supervision and Administration Bureau of Harbin City, and Zhang Yejian and Zhang Xiye, the entrusted agents, attended the court to participate in the litigation. The case is now closed.
The defendant, the Harbin Daowai District Market Supervision and Administration Bureau, held that the facts of the administrative punishment decision made by the defendant were clear, the evidence was sufficient, and the procedures were legal. On June 2, 2020, the defendant received the Notice of Verification and Disposal of Unqualified Samples of Food Safety Sampling inspection and the unqualified report of the Heilongjiang Provincial Market Supervision and Administration Bureau forwarded by the Harbin Municipal Market Supervision and Administration Bureau, and the defendant law enforcement personnel filed the case after approval. On the same day, the defendant law enforcement personnel conducted an on-site inspection of the plaintiff, and at the same time informed the plaintiff of the results of the inspection report, and during the on-site inspection, no finished products of the unqualified clear water shoots were found, and the defendant questioned the plaintiff and asked the plaintiff to provide business licenses, food production licenses and other materials. On August 19, 2020, the defendant made an administrative punishment decision in accordance with law. The canned canned water shoots produced by the plaintiff violated the provisions of Article 34 (4) of the Food Safety Law of the People's Republic of China, constituting an illegal act of producing food that uses food additives beyond the scope, and the defendant punished the plaintiff in accordance with the provisions of article 124, paragraph 1, item (3) of the Food Safety Law of the People's Republic of China, the facts of the case are clear, the evidence is sufficient, and the procedure is legal; the plaintiff did not submit an application for a hearing to the defendant, and the defendant served the plaintiff on August 13, 2020. Notice of Administrative Punishment Hearing", the plaintiff did not submit an application for a hearing within the statutory time limit in accordance with the provisions of the Administrative Punishment Law of the People's Republic of China, and the plaintiff's application for a hearing was not organized by the defendant without factual basis; in this case, the resulting in the plaintiff's production of clear water shoots by sampling test dehydroacetic acid and its sodium salt project did not meet the requirements of GB2760-2014, which the plaintiff added to prevent the bamboo shoots from deteriorating, rather than the raw materials brought in, The plaintiff made a statement in the record of the investigation and the information note provided by the plaintiff. Sodium dehydroacetate was added by the plaintiff to the purchased raw material salted bamboo shoots, and the addition was a link in the plaintiff's production process of clear water shoots, rather than the purchase of raw materials themselves; the inspection report received by the defendant was an inspection report issued by a qualified inspection and appraisal institution, the conclusion of the report had legal effect, the evidence of the plaintiff's production of canned water shoots was sufficient; the goods sold by the plaintiff did not meet the principle of bringing in food additives. GB2760-2014 clearly stipulates that sodium dehydroacetate is suitable for "pickled vegetables" and is not suitable for canned products. Article 3.4.1a in GB2760-2014) stipulates: "The use of food additives is permitted in food ingredients". The principle of bringing in food additives applies to the introduction of food ingredients (including food additives) rather than the introduction of food raw materials; article 3.4.1c in GB2760-2014) stipulates: "These ingredients shall be used under normal production process conditions, and the content of the additive in food shall not exceed the level brought in by the ingredients". Because sodium dehydroacetate is not allowed to be used in canned fruit and vegetable products, the plaintiff's addition of sodium dehydroacetate to food raw materials is not used under the normal production process conditions for the production of canned bamboo shoots; article 3.4.1d of GB2760-2014) stipulates that "the content of additives brought into food by ingredients should be significantly lower than the level usually required to directly add them to the food", according to this provision, even if the ingredients are brought in, it should meet national standards, and the canned food in this case is not allowed to add sodium dehydroacetate. National standards are clearly defined. The detection value of sodium dehydroacetate produced by the plaintiff does not meet the requirements of the national standard, and it is added by the plaintiff independently, not by the raw material. At the same time, it is also not in line with the principle of bringing food ingredients in, and it is not improper for the defendant to punish the plaintiff according to law.
In summary, the administrative punishment decision of Hawai City Supervision and Punishment Zi [2020] No. 80 made by the defendant complied with the provisions of the law, and the facts were clear, the evidence was sufficient, and the procedures were legal. Request that the people's court reject the plaintiff's litigation claims in accordance with law. On October 26, 2020, the defendant, the Daowai District Market Supervision and Administration Bureau of Harbin City, provided the following evidence and basis to this court: 1. Case Filing Approval Form, Case Source Registration Form, and Case Information Filing Form, proving that the defendant registered the case source and filed the case according to law; 2. Notice of Verification and Disposal of Unqualified Samples for Food Safety Supervision and Sampling by Heilongjiang Provincial Market Supervision and Administration Bureau, Statistical Table of Unqualified Samples for National Food Safety Supervision and Sampling inspection in 2020, National Food Safety Sampling Inspection Sample List, Food safety sampling inspection notice, inspection report, notice of national food safety sampling inspection results, service of evidence, proving that the source of the case is the state bureau sampling inspection, the defendant served the inspection report in accordance with law; 3, the administrative punishment decision letter, service of the certificate, to prove that the defendant served the penalty decision in accordance with the law; 4, the order to correct the notice, the service of the proof, the administrative punishment related matters approval form, to prove that the defendant served the notice of order correction in accordance with the law; 5, the administrative punishment hearing notice, the service of the reply, 6. On-site record, interrogation record, Notice of Verification and Disposal of Unqualified Samples of Food Safety Supervision and Sampling by Heilongjiang Provincial Market Supervision and Administration Bureau, Statistical Table of Information on Unqualified Samples of National Food Safety Supervision and Sampling inspection in 2020, National Food Safety Sampling Inspection Sample List, Notice of Food Safety Sampling Inspection, and Inspection Report, proving that the defendant conducted an investigation and evidence collection in accordance with the law, and the quality of the goods sold by the plaintiff did not meet national standards; 7. Copies of business licenses, A copy of the food production license, a detailed list of food production license varieties, and a copy of Wang Jun's ID card to prove the plaintiff's business qualifications and the identity of the person in charge; 8. Yingde Jiayi Food Co., Ltd.'s food production license, food production license variety schedule, inspection report, description, freight bill, to prove the supplier qualification and product quality certificate submitted by the plaintiff, did not submit the purchase receipt, the copy of the business license, and did not perform the purchase inspection according to law; 9, Explanations on the detection of dehydroacetic acid and its sodium salt in canned bamboo shoots (two copies) prove that the plaintiff himself stated that the food additives were added by himself; 10. Harbin Dazheng Food Additives Trading Company Bills, copies of the business license of Nantong Acetic Acid Chemical Co., Ltd., original copies of the food production license, food production license schedules, inspection and testing reports, to prove that the plaintiff purchased the additives by himself; 11, the production ledger, the sales ledger, the recall announcement, and the WeChat screenshot proved that the plaintiff had established a purchase and sales ledger 12. The investigation conclusion report, the draft administrative punishment decision, the case review form, the case collective discussion record, and the administrative handling decision approval form proved that the defendant had performed the approval, verification and collective discussion in accordance with the law.
The legal basis applicable to the defendant, the Daowai District Market Supervision and Administration Bureau of Harbin City, is Article 124, Paragraph 1, Item (3) of the Food Safety Law of the People's Republic of China and Article 23 of the Administrative Punishment Law of the People's Republic of China.
The plaintiff, Zekun Food Processing Factory, Daowai District, Harbin City, claimed that the plaintiff operated a food processing plant to produce the product "Qingshui Bamboo Shoots", and the raw material "pickled bamboo shoots" of the clear water shoots involved in this case was purchased by the plaintiff on December 14, 2019, arrived in Harbin on December 25, 2019, and then failed to produce according to the regulations due to statutory holidays and epidemic reasons, and the plaintiff negotiated with the supplier for the legal and reasonable preservation of raw materials because of concern about the deterioration and mildew of the raw materials, because the supplier proposed that the plaintiff add sodium dehydroacetate to the raw materials on its behalf to ensure the preservation of raw materials in the special circumstances of the epidemic. After the epidemic, the plaintiff used this raw material to produce the clear water shoots involved in the case. On June 1, 2020, the batch of clear water shoots was found to contain sodium dehydroacetate 0.351g/kg after the defendant's sampling investigation, and on August 13, 2020, the defendant issued an administrative penalty hearing notice to the plaintiff, the plaintiff applied for a hearing, and the defendant did not have a hearing procedure. On August 19, 2020, the defendant made an administrative punishment decision, ordering the plaintiff to correct the confiscation of illegal gains and fining 51,000 yuan, and the penalty decision recorded that "the notice of hearing was served to the plaintiff on August 10, 2020, and the plaintiff did not apply for a hearing", which contradicted the content of the notice of the administrative punishment hearing and was an obvious procedural violation. According to the substitution principle in the "National Standard for Food Safety And The Standard for the Use of Food Additives", the additives allowed to be added to the food raw materials are allowed to be substituted into the food through raw materials without exceeding the prescribed standards. Pickled bamboo shoots belong to the pickled vegetables in the standard, according to the provisions of the "National Standard for Food Safety Food Additive Use Standards" (GB2760-2014), pickled vegetables are allowed to add dehydroacetic acid and its sodium salt, and the allowable content is up to 1.0g/kg. According to the relevant provisions of the above standards, it can be seen that the plaintiff added sodium dehydroacetate to the pickled bamboo shoots of food raw materials in order to store raw materials, but did not add sodium dehydroacetate again in the process of producing and processing "clear water shoots", and then detected 0.351g/kg of sodium dehydroacetate in the finished product, which is far lower than the 1.0g/kg that can be added to the highest standard of raw materials, which is in line with the principle of substitution and is brought into the finished product by food raw materials, and does not violate food safety standards. Therefore, the defendant's conclusion that the plaintiff used food additives beyond the scope was not in line with the facts, the plaintiff did not violate the law, and the defendant punished the plaintiff, which was illegal in the content of the administrative punishment. The plaintiff applied for a hearing, but the defendant imposed an administrative penalty without organizing a hearing, which was an illegal procedure.
Based on the above facts, the plaintiff argued that the penalty decision made by the defendant had no factual basis, the content was illegal, and the procedure was illegal. An administrative lawsuit is hereby filed with the people's court in accordance with law, requesting that its decision be revoked. Litigation claims: 1. Revoke the administrative penalty decision of Harbin City Supervision and Punishment Zi [2020] No. 80 made by the defendant Harbin Daowai District Market Supervision and Administration Bureau; 2. The litigation costs of the case shall be borne by the defendant. The plaintiff, Zekun Food Processing Factory, Daowai District, Harbin City, submitted the following evidence to this court: 1. Notice of administrative punishment hearing, notice of order to make corrections, and administrative punishment decision, proving that the defendant made an administrative punishment hearing notice against the plaintiff on August 13, 2020, and made an administrative punishment decision on August 19, 2020, ordering the plaintiff to correct the confiscation of illegal gains and fining 51,000 yuan, and the penalty decision stated that "the notice of hearing was served to the plaintiff on August 10, 2020, and the plaintiff did not apply for a hearing". This fact contradicts the content of the administrative punishment hearing notice, the record date is inconsistent, and the date of service is obvious procedural violation before the penalty hearing notice; 2. Announcement No. 12 of the Harbin Municipal Headquarters for Responding to the Novel Coronavirus Infection ×× Epidemic, notice on the lifting of the standards for the strictest control measures in key areas of the new crown ×× epidemic in our province (Black Epidemic Finger Office [2020]) No. 76) and its annexes, proving that according to the regulations of the provincial and municipal governments, before the "Strict Nine Articles" are lifted, Production units in the same area, including the plaintiff, are not allowed to produce, because the plaintiff will only pickle and preserve the production materials in a legal process under the entrustment and guidance of the producer of pickled bamboo shoots; 3. The classification and code of fresh vegetables in the domestic trade industry standard of the People's Republic of China, the national standard of the People's Republic of China For Food Safety, the standard for the use of food additives (GB2760-2014), proves that the pickled bamboo shoots are pickled vegetables, according to the standard, The maximum content of dehydroacetic acid allowed to be added is 1.0g/kg, according to the principle of bringing in, the canned clear water shoots with pickled bamboo shoots as the production material can be brought into the finished product can because the pickled bamboo shoots contain dehydroacetic acid, and the content must not exceed 1.0g/kg; 4, the food safety sampling inspection notice and inspection report prove that 0.351g/kg of dehydroacetic acid was tested in the clear water shoots produced by the plaintiff, and the report determined that the plaintiff produced products that did not meet food safety standards with this result. However, according to the same evidentiary materials submitted by the plaintiff, it can be proved that the part of dehydroacetic acid was added to the pickled bamboo shoots in the production materials, and was brought into the finished water shoots according to the principle of bringing in, and its content did not exceed the prescribed standards, and the plaintiff should not be found to be illegal; 5. The shipping order of Guangzhou Shengda Logistics Co., Ltd. proved that the plaintiff received the pickled bamboo shoots at the time (issued on December 14, 2019, and the time to Kazakhstan was December 25, 2019), at this time, it was affected by the epidemic and could not continue production. Necessary measures must be taken so that the production materials can continue to be preserved; 6. The explanation of the detection of dehydroacetic acid and its sodium salt in the canned clear water shoots proves that the plaintiff issued a similarly reasonable explanation to the defendant on July 13, 2020, and the plaintiff has explained to the defendant that the reason for the testing of dehydroacetic acid in the clear water shoots is due to the special measures taken during the special period of the epidemic before the administrative punishment is made; 7. The canned water shoots are a physical copy of the clear water shoots. The production date is proved to be October 27, 2020, and the ingredient list clearly indicates bamboo shoots, water, food additives (citric acid, lemon yellow), bamboo shoots as one of the ingredients of the canned food, this ingredient list is customized according to the food standards stipulated by the state.
The defendant, the Market Supervision and Administration Bureau of Daowai District of Harbin City, argued that food production enterprises must obtain corresponding food production licenses in accordance with the law, and adding dehydroacetic acid and its sodium salt to fresh bamboo shoots was a food production and processing behavior. Adding dehydroacetic acid and its sodium salt to fresh bamboo shoots is also a kind of entrusted processing behavior, and the production enterprise that has obtained the production license in accordance with the relevant provisions of the state can entrust processing to the enterprise that has obtained the production license, but may not entrust the processing of the corresponding product to the enterprise that has not obtained the production license, and the plaintiff has not obtained the production license for pickled vegetables, and it is not allowed to engage in other activities in the production of pickled vegetables. The facts of the administrative punishment decision made by the defendant against the plaintiff are clear, the evidence is sufficient, and the procedures are legal. Therefore, the plaintiff's litigation claims should be rejected in accordance with law.
After cross-examination at trial, the cross-examination opinions of the parties are as follows:
The plaintiff had no objection to evidence 1 and 2 provided by the defendant, the Daowai District Market Supervision and Administration Bureau of Harbin City; no objection to the authenticity of evidence 3, and objection to the punishment, believing that the date of the hearing recorded and the date of the notice of hearing served were inconsistent; having no objection to the authenticity of evidence 4; having objection to evidence 5, believing that there was no record of service of the notice of hearing; and having no objection to evidence 6-12.
The defendant had no objection to the authenticity and legality of evidence 1 provided by the plaintiff, Daowai District, Harbin City, Zekun Food Processing Factory, and had objections to the issue of proof, believing that the date of service of the notice of administrative punishment hearing was clear, that the plaintiff had signed it, and that the clerical errors in the penalty decision described by the plaintiff were not procedural issues; there was no objection to the authenticity and legality of evidence 2, and there was an objection to the issue of proof, holding that the municipal government's Announcement No. 12 only stipulated "Strict Nine Articles" and did not authorize the plaintiff to add food additives to the production raw materials for preservation The announcement only responds to the epidemic situation ×× the new coronavirus infection; there is no objection to the authenticity of evidence 3, and there is an objection to the relevance of the classification and code of vegetables in evidence 3, believing that the items involved in this case are canned bamboo shoots, the basis for the unqualified test is the national standard for food safety, the use of food additives, and the SB/T100299-2012 provided by the plaintiff has no relevance to this case. In addition, there are objections to the proof of evidence 3, the goods involved in this case are canned foods, not pickled vegetables, the pickled bamboo shoots described by the plaintiff are the raw materials used in the canned bamboo shoots in this case, the defendant investigates and deals with the finished products of canned bamboo shoots in accordance with the law instead of raw materials, and the GB2760-2014 national standard clearly stipulates that canned food shall not be added to dehydroacetic acid and its sodium salt; there is no objection to the authenticity and legality of evidence 4, and there is an objection to the issue of proof. It is believed that the commodity involved in this case is canned food, not pickled vegetables, the pickled bamboo shoots described by the plaintiff are the raw materials used in the canned bamboo shoots in this case, and our bureau investigates and deals with the finished products of canned bamboo shoots in accordance with the law instead of raw materials, and the GB2760-2014 national standard clearly stipulates that canned food shall not be dehydroacetic acid and its sodium salt; there is no objection to the authenticity of evidence 5, there is no objection to the proof problem, and it is believed that it is impossible to continue to produce due to the impact of the epidemic, which is not the reason for illegal use of additives in food The national food safety standard clearly stipulates that dehydroacetic acid and its sodium salt shall not be added to ensure food safety, and there is no reason to change it without authorization, including the canned water shoots of the sampled products produced by the plaintiff on March 13, 2020, and the epidemic situation is not over at this time; the cross-examination opinion on evidence 6 is the same as the cross-examination opinion on evidence 5; there is an objection to evidence 7, believing that the ingredients shown in this evidence are bamboo shoots, water and food additives, which can be seen that the ingredients used by the plaintiff are inconsistent with the evidence In this case, the ingredient used by the plaintiff was pickled bamboo shoots, which the plaintiff obtained by adding sodium dehydroacetate and its sodium salt, and the items involved in this case should actually use bamboo shoots instead of pickled bamboo shoots.
After cross-examination at trial, this court confirmed the evidence as follows:
Evidence 1 and 2 provided by the defendant can prove the problems that the defendant wants to prove, and this court accepts it; evidence 3 can prove that the defendant served the administrative punishment decision involved in the case, but the punishment decision submitted by the defendant and the penalty decision submitted by the plaintiff are inconsistent in the content of the record of the relevant hearing time (all the documents of the plaintiff show the time: August 10, 2020, the time of display of the documents retained by the defendant: August 13, 2020), in addition, the signatory on the receipt of the service of the punishment decision is Cao Hongyu, Moreover, the defendant did not provide relevant proof that the person had the qualifications to sign the administrative punishment decision involved in the case. Therefore, in the process of serving the administrative punishment decision involved in the case, the defendant had a defective content of the service and the service procedure was illegal, so this court did not accept the proof of the defendant's service of the administrative punishment decision in accordance with the law; the time for making the notice of order correction in evidence 4 is the same as that for the administrative punishment decision in evidence 3, and the time for ordering the parties to correct or correct the illegal behavior within a time limit is based on the provisions of the Administrative Punishment Law of the People's Republic of China. It is reasonable to inform the offender in accordance with the law before making the administrative punishment decision after discovering the illegal act, and the defendant makes a notice of order to correct the law at the same time as making the decision on the administrative punishment involved in the case, and both legal documents have the content of ordering the correction of the illegal acts involved in the case, so in the process of the defendant serving the notice of order to correct the case, there is a situation where the service procedure is illegal, so this court does not accept the proof of the defendant's service of the notice of order correction in accordance with the law; evidence 5-12 can prove the problem that the plaintiff wants to prove. This court accepts it.
The determination opinion of the administrative penalty decision and the notice of order correction in evidence 1 provided by the plaintiff is the same as the determination opinion of the above two legal documents provided by the defendant; evidence 3 can prove that the pickled bamboo shoots are pickled vegetables, but it cannot prove the legality of the plaintiff's own addition of dehydroacetic acid and its sodium salt to the pickled bamboo shoots, and the detection of dehydroacetic acid and its sodium salt 0.351g/kg in the final finished canned water shoots meets the provisions of the relevant principles of bringing in GB2760-2014. This court does not accept it; the determination opinion of evidence 4 is the same as that of evidence 3; evidence 5-6 does not prove the problem that the plaintiff wants to prove, which is not accepted by this court; evidence 7 cannot directly prove the problem that the plaintiff wants to prove, and this court does not accept it.
Based on the above valid evidence and the cross-examination opinions of the parties, the court determined the following facts: In the food safety supervision and sampling work of the State Administration for Market Supervision and Administration in 2020, the Heilongjiang Provincial Market Supervision and Administration Bureau entrusted the Dalian Branch of CSTP Standard Technical Service Co., Ltd. to inspect the clear water shoots (production date: March 13, 2020, measurement and sales) produced by the plaintiff of the sampled products. On June 1, 2020, the Dalian Branch of CSTP Standard Technical Service Co., Ltd. made no: DLAF20008G-0080 "Inspection Report", and the inspection conclusion showed: "After sampling test, the dehydroacetic acid and its sodium salt (in terms of dehydroacetic acid) project did not meet the requirements of GB2760-2014 "National Standard for Food Safety Food Additive Use Standard", and the inspection conclusion was unqualified (among which the standard index of dehydroacetic acid and its sodium salt in the clear water shoots produced by the plaintiff should be: shall not be detected). Measured value: 0.351g/kg)". Subsequently, the defendant received the "Notice of Verification and Disposal of Unqualified Samples for Food Safety Supervision and Sampling by the Heilongjiang Provincial Market Supervision and Administration Bureau" forwarded by the Harbin Municipal Market Supervision and Administration Bureau, requiring the defendant to verify and dispose of the above-mentioned unqualified food producers and traders. On June 2, 2020, the defendant filed a case against the above-mentioned transferred case, and after investigation and verification, the defendant believed that the plaintiff's production of clear water shoots had been sampled and tested, and the dehydroacetic acid and its sodium salt project did not meet the requirements of the national standards, which had violated the provisions of Article 34 (4) of the Food Safety Law of the People's Republic of China and constituted the production of food that exceeded the scope of food additives. The defendant determined that the product produced by the plaintiff (Shimizu shoots) constituted a food that exceeded the scope of food additives: "Because the enterprise could not produce in time, the purchased raw material salted shoots could not be produced into clear water shoots in time, in order to prevent the raw material salted shoots from deteriorating, the food additive sodium dehydroacetate was added to the salted shoots, and when producing the salted shoots, the raw material salted shoots were not washed, and there was still sodium dehydroacetate in the salted bamboo shoots, resulting in the use of such salted bamboo shoots produced by the clear water shoots containing dehydroacetic acid and its sodium salt.". On August 13, 2020, the defendant served the plaintiff with the Notice of Administrative Punishment Hearing [2020] No. 06 of the Hawai Municipal Food Supervision Hearing, informing the plaintiff that if it did not exercise the right to make a statement and defense within three working days from the date of receipt of this notice, and did not request a hearing, it was deemed to have waived this right. The defendant of the "Notice" served the plaintiff's responsible person, Wang Jun, in the form of direct service. On August 19, 2020, the defendant made a "Notice of Order correction" of Hawai City's Food Supervision Responsibility Change [2020] No. 06, ordering the plaintiff to immediately correct the illegal behavior. On the same day, the defendant made the "Administrative Punishment Decision Letter" of Hawai City Supervision and Punishment Zi [2020] No. 80, and decided to give the plaintiff: 1, order correction; 2, confiscate the illegal gains of 6 yuan; 3, fine: 51,000 yuan. The defendants of the above-mentioned "Notice of Order to Make Corrections" and "Administrative Punishment Decision Letter" served Cao Hongyu in the form of direct service. Dissatisfied with the above-mentioned administrative punishment decision, the plaintiff filed a lawsuit in this case, requesting the revocation of the "Administrative Punishment Decision Letter" made by the defendant in Hawai City Supervision Penalty Zi [2020] No. 80.
According to Article 4 of the Food Safety Law of the People's Republic of China, "food producers and traders are responsible for the safety of the food they produce and trade." Food producers and traders shall engage in production and business activities in accordance with the provisions of laws, regulations and food safety standards, ensure food safety, be honest and self-disciplined, be responsible to society and the public, accept social supervision, and assume social responsibility." In this case, the plaintiff, as the producer of the clear water shoots involved in the case, should bear the food safety liability stipulated in the above-mentioned law in accordance with the law. As a food safety supervision and management department, the defendant has the authority to punish violations of the above-mentioned legal provisions in accordance with the law. As to whether the plaintiff's production of clear water shoots violated the provisions of Article 34 (4) of the Food Safety Law of the People's Republic of China: "constituting the production of food that uses food additives beyond the scope". First, according to the provisions of the "National Standard for the Use of Food Safety Food Additives" (GB2760-2014) on the food classification number (04.02.02.03) that can be added to dehydroacetic acid and its sodium salt, the maximum allowable use of pickled vegetables is 1.0g/kg, and although the material used by the plaintiff for the production of shimizu shoots in this case belongs to the food that can be added to dehydroacetic acid and its sodium salt, according to the "Food Safety National Standard Food Additive Use Standard" (GB2760-2014) stipulates that shimizu shoots as canned food (the plaintiff also admitted in the interrogation record that the standard for the implementation of shimizu shoots in the case was "canned vegetables in flexible packaging"),) which did not reflect the content that can be added under the corresponding dehydroacetic acid and its sodium salt in the above-mentioned "standards", according to the test rules that cannot be detected without standards, the inspection report detected 0.351g/kg of dehydroacetic acid and its sodium salt in the clear water shoots, and found that it did not meet the provisions of the above "standards", The determination of the test result as unqualified is not improper. Secondly, according to the relevant introduction rules in Article 3.4.1 of the National Standard for Food Safety (GB2760-2014) on the use of food additives: d) "The content of the additive brought into the food by the ingredient shall be significantly lower than the level usually required to directly add it to the food", the introduction rules stipulated in this article should be regarded as the ingredients and food are allowed to be added to a certain food additive, in this case, the clear water shoots as canned food it was not " The National Standard for Food Safety And the Standard for the Use of Food Additives (GB2760-2014) is listed as a food that can add dehydroacetic acid and its sodium salt, so the court cannot support the plaintiff's claim that the bring-in rules should be applied between pickled bamboo shoots and clear water shoots in this case. Therefore, based on the inspection report and the investigation results, the defendant determined that the plaintiff's production of clear water shoots constituted an illegal act of producing food that exceeded the scope of food additives, which complied with the provisions of relevant laws.
Although the plaintiff has violated the relevant provisions of the Food Safety Law of the People's Republic of China, the defendant also has the right to punish the illegal act in accordance with the law, but in the process of making the corresponding administrative punishment, the defendant needs to ensure that the facts of the violation are correct, and also needs to ensure the legitimacy of the corresponding punishment procedure in accordance with the law. In this case, although the defendant made the Notice of Order correction on August 19, 2020 in accordance with the relevant provisions of the Administrative Punishment Law of the People's Republic of China, the Notice of Order correction was made at the same time as the Administrative Punishment Decision Letter involved in the case, and according to the provisions of the Administrative Punishment Law of the People's Republic of China on ordering the parties to correct or correct the illegal acts within a time limit, the Notice of Order Correction was made. It is reasonable to inform the offender in accordance with law after discovering the illegal act and before making an administrative punishment decision, and the defendant made a "Notice of Order correction" at the same time as making the "Administrative Punishment Decision" involving the case, which is an administrative act procedural violation. At the same time, the signatory on the receipt of the "Notice of Order correction" was "Cao Hongyu", and the plaintiff, as an individual industrial and commercial household in The Zekun Food Processing Factory in Daowai District, Harbin City, should bear the actual rights and obligations of its operator (Wang Jun) in the process of production and operation, and in the absence of relevant authorization or entrustment procedures to prove that the relevant entity (Cao Hongyu) has the right to bear the relevant administrative acts on behalf of the relevant administrative acts, the administrative acts related to the Zekun Food Processing Factory in Daowai District of Harbin City should be made to the operator first. However, the defendant did not provide the relevant proof that the person had the qualification to sign the above-mentioned "Notice of Order correction", and although the plaintiff did not raise any objection to this, the defendant also violated the provisions of the relevant laws on the service procedure of legal documents in the process of serving the "Notice of Order Correction", which was also an administrative act procedure violation. In addition, in the process of serving the "Administrative Punishment Decision Letter" of Hawai City Supervision and Punishment Zi [2020] No. 80 to the plaintiff, the defendant had inconsistencies between the content of the Administrative Punishment Decision Letter served to the plaintiff and the "Administrative Punishment Decision Letter" archived by the defendant, and the "Administrative Punishment Decision Letter" received by the plaintiff recorded that "the notice of hearing was delivered to zekun Food Processing Factory in Daowai District, Harbin City on August 10, 2020, and no application for hearing was submitted". The content of this part of the Administrative Punishment Decision filed by the defendant is recorded as follows: "The notice of hearing was delivered to the Zekun Food Processing Factory in Daowai District, Harbin City on August 13, 2020, and no application for a hearing was submitted." Although the defendant claimed that the record in the place was a clerical error, and provided the Notice of Administrative Punishment Hearing of Hawai City Food Supervision Notice [2020] No. 06 signed by the plaintiff on August 13, 2020, the "Administrative Punishment Decision" as an important legal document that has a practical impact on the rights and obligations of the parties should not have a "clerical error" in this place, and the content of the "clerical error" in this place is a hearing matter involving the important procedural rights of the parties. In addition, in the process of serving the Administrative Punishment Decision, the defendant also had the situation that the identity of the recipient of the document was unknown (the signer indicated on the signature collection receipt: "Cao Hongyu"). Therefore, in the process of serving the "Administrative Punishment Decision" involved in the case, the defendant had a situation where the content of the service document was flawed and the service procedure was illegal. Because the defendant had the above-mentioned illegal administrative acts in the process of making the administrative punishment decision involved in the case, the plaintiff's litigation request to revoke the defendant's "Administrative Punishment Decision Letter" made by the Harbin Municipal Supervisory Punishment Zi [2020] No. 80 should be supported. In summary, in accordance with the provisions of Article 70(3) of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:
Revoke the administrative penalty decision of Harbin Daowai District Market Supervision and Administration Bureau on August 19, 2020.
The case acceptance fee of 50 yuan (the plaintiff has paid in advance) is borne by the defendant Harbin Daowai District Market Supervision and Administration Bureau.
If you are not satisfied with this judgment, you may file an appeal within 15 days from the date of service of the judgment, submit an appeal to this court, and submit a copy according to the number of parties on the other side, and appeal to the Harbin Intermediate People's Court.
Judge Zhang Jie
People's Assessor Wang Shurong
People's assessor Zou Chunping
December 22, 2020
Scribe Zheng Xiaolei
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