Study On The Behavior Of Food And Drug Regulators Not Transferring Criminal Cases

Food and drug safety concerns the national economy and the people’s livelihood.In order to further strengthen food and drug supervision and law enforcement,the criminal law amendment（11）revised and improved the crime of dereliction of duty in food and drug supervision,It is clearly defined as one of the objective acts of the crime that the food and drug regulator "should be transferred to the judicial organ for criminal responsibility according to law"（that is,the "act of not transferring criminal cases" referred to in this paper）.However,because this crime is a newly revised crime,the relevant norms are not perfect,so it is necessary to conduct in-depth discussion.First of all,from the behavior attribute,the behavior of food and drug regulators not transferring criminal cases belongs to omission,regardless of their dereliction of duty or abuse of power.Acts in criminal law are divided into acts and omissions,which are obviously different in behavior structure and normative evaluation,.Therefore,it is necessary to take the behavior attribute of food and drug regulators’ failure to transfer criminal cases as a logical starting point.This paper holds that although there are many disputes about the identification standards of act and omission in theory,the more appropriate point of view is that the distinction standard lies in the different types of norms violated by them.Act is an act of illegal prohibition of norms,and omission is an act of illegal order norms.Accordingly,the failure of food and drug regulators to transfer criminal cases belongs to omission,and the order norms they violate are the clearly stipulated obligation to transfer suspected criminal cases confirmed by the food safety law and the drug administration law.Secondly,on the basis of clarifying that the act is omission,how to determine its obligation is the core of this case study.Of course,from the perspective of judicial practice,this is also the focus of controversy between public security judicial organs and administrative law enforcement departments,which involves two aspects: the source and content of obligations.This paper discusses the source and content of the act as an obligation,so as to clarify the judgment standard of non performance of the obligation of transfer.First,the source of the obligation of transfer is the obligation expressly stipulated in the law.The law here is not a law in a narrow sense.It includes not only the food safety law and the drug administration law,but also the provisions on the transfer of suspected criminal cases by administrative law enforcement organs promulgated by the state Council.Second,the content of the obligation of transfer mainly includes the transfer object,transfer conditions and transfer time.Including the transfer object should be: the category of cases that should be transferred for suspected crimes,that is,the "suspected criminal cases" based on preliminary judgment of evidence,not "suspected criminal clues" The formal condition of transfer is that the subject and procedure of administrative law enforcement are legal,and the substantive condition is that there is evidence to prove the occurrence of suspected crime;The time of handover can be divided into three types:timely handover,immediate handover and handover within 10 days after administrative punishment.Thirdly,the behavior mainly includes two basic forms: abuse of power and dereliction of duty.Although the two acts belong to the crime of dereliction of duty and are stipulated in the same article,the interpretation of the behavior mode of this crime is helpful to objectively evaluate the criminal responsibility of the offender.Therefore,this paper classifies the manifestations of the act,and needs to clarify the identification standards under different circumstances,so as to provide a normative basis for straightening out the boundaries between different charges.The behavior of abusing authority to not transfer criminal cases mainly includes going beyond the scope of authority,knowing that it is suspected of criminal cases and not transferring within the scope of authority,knowing that it is suspected of criminal cases;Dereliction of duty not to transfer criminal cases mainly includes carelessness,failure to deal with and work hastily after discovering the suspected criminal facts,and failure to accurately judge the nature of the case.Since the crime of not handing over criminal cases for favoritism is clearly stipulated in the criminal law,through the interpretation of favoritism,we can clarify the relationship between the act and this crime,that is,the act of not handing over criminal cases with the plot of "favoritism" should belong to abuse of power rather than dereliction of duty.Finally,the foothold of this paper is to explain the objective conditions for the establishment of the crime.This paper analyzes the objective conditions of the act constituting a crime.Based on the principle of legally prescribed crime and punishment,it mainly involves the identification of "serious consequences" and "other serious circumstances"."Serious consequences" include not only material damage results such as major food and drug safety accidents and public and private property losses,but also non-material damage results such as potential safety hazards and adverse social impact."Other serious circumstances" include a series of subjective and objective factors that reflect the degree of infringement of legal interests and are necessary for the establishment of the crime.Subjective factors include the actor’s motivation,illegality awareness and attitude,etc;Objective factors include behavior methods and means,social impact of food and drug criminal cases and the number of times of non transfer.