The SPC and SPP Interpretation on Criminal Food Safety Cases

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Chinese Title: 最高人民法院、最高人民检察院关于办理危害食品安全刑事案件适用法律若干问题的解释

  《最高人民法院、最高人民检察院关于办理危害食品安全刑事案件适用法律若干问题的解释》已于2013年4月28日由最高人民法院审判委员会第1576次会议、2013年4月28日由最高人民检察院第十二届检察委员会第5次会议通过,现予公布,自2013年5月4日起施行。

Supreme People's Court

 

Supreme People's Procuratorate

5/2/2013

Chinese Title: 最高人民法院、最高人民检察院关于办理危害食品安全刑事案件适用法律若干问题的解释

(Legal Interpretation [2013] No. 12, April 28, 2013, passed at the 1576 meeting of the Adjudication Committee of the Supreme People's Court,

and on April 28, 2013, at the 5th session of the 12th Supreme People's Procuratorate Prosecution Committee)

The following interpretations on several issues regarding the applicable law in handling this type of case are made on the basis of relevant provisions of the Criminal Law to punish crimes of endangering food safety in accordance with law and to ensure the physical well-being of the masses and their security.

Article 1: Where any of the following circumstances are present, the production or sale of food not meeting the food safety standards shall be considered "sufficient to cause a a serious food poisoning incident or other serious foodborne illness" as provided in Article 143 of the Criminal law.

(1) Contains invasive organisms, residual pesticides, residual veterinary medicines, heavy metals or pollutants in serious excess of restrictive standards, or any other substances that are harmful to humans ;

(2) meat or meat products from livestock, poultry, game or aquatic animals that died of illness, died from unidentified causes, or were certified for quarantine ;

(3) the nation has prohibited the production or sale by special order for disease control and prevention, or for other special needs ;

(4) baby food where nutrients needed for growth and development fall seriously short of food safety standards;

(5) other circumstances sufficient to cause a serious food poisoning incident or other serious foodborne illness..

Article 2: Where any of the following circumstances are present, the production or sale of foods not in compliance with food safety standards shall be considered "causing serious harm to person's physical health" as provided in article 143 of the Criminal Law:

(1) causes a more than trivial harm ;

(2) causes minor or moderate disabilities;

(3) causes organ tissue damage leading to ordinary dysfunction or severe dysfunction;

(4) causes 10 or more serious food poisonings or other serious foodborne illnesses;

(5) other circumstances causes serious harm to persons health.

Article 3: Where any of the following cricumstances are present, production or sale of food that does not meet food safety standards shall be considered 'other serious circumstances' as provided for in article 143 of the criminal law:

(1) the production or sale of more than 200,000 yuan;

(B) produced or sold an amount worth between 100,000 and 200,000 yuan where the amount of food not meeting food safety standards was large or the production or sale continued over a long time ;

(3) produced of sold between 100,000 yuan and, but not including, 200,000 yuan, of food for babies or children.

(4) Produced or Sold an amount worth between 100,000 and, but not including, 200,000 yuan, and has received an administrative or criminal penalty for activities violating food safety within the preceding year;

(5) Other situations where the circumstances are serious.

Article 4: In any of the following situations, production or sale of food not meeting food safety standards shall be considered as having 'particularly serious consequences' as provided for in article 143 of the Criminal Law.

(1) caused death or severe disability;

(2) caused more than three persons to be seriously injured or moderately disabled or suffer organ damage causing serious impairments.

(3) causes 10 or more people to have minor injuries, or five or more people to suffer minor disabilities or organ failure causing general dysfunction.

(4) causes 30 or more people to suffer sever food poisoning or other serious foodborne illness;

(5) other especially serious consequences.

Article 5: Where any of the circumstances in Article 2 of this Interpretation are present, the production or sale of poisonous or harmful foods shall be considered "Causing serious harm to people's physical health" as used in article 144 of the Criminal Law.

Article 6: In the following situations, the production or sale of poisonous or harmful foods shall be considered "other serious circumstances" as provided for in article 144 of the Criminal Law:

(1) Produced or sold between 200,000 yuan and , but not including, 500,000 yuan;

(2) produced or sold between 100,000 yuan and, but not including, 200,000 yuan of poison food where the volume was large or the sales or production continued for a long period of time.

(3) produced of sold between 100,000 yuan and, but not including, 200,000 yuan, of food for babies or children.

(4) Produced or Sold an amount worth between 100,000 and, but not including, 200,000 yuan, and has received an administrative or criminal penalty for activities violating food safety within the preceding year;

(5) contains high levels of poisonous or harmful non food materials with a high level of toxicity.

(6) Other situations where the circumstances are serious.

Article 7: Production or sale of poisonous or harmful foods, where production or sale was greater than 500,000 yuan or where any of the situations in article 4 of this interpretation are present, shall be considered "serious circumstances resulting in death or other serious injury" as provided for in article 144 of the Criminal Law.

Article 8: Violations of food safety standards in processes such as food processing, sale, transport storage, or exceeding the scope and volume of food additives, so as to cause serious food poisoning or other serious foodborne illness, shall be tried and punished, as a crime of production or sale of foods not meeting food safety standards in accordance with article 143 of the criminal law.

The previous clause applies to the trial and punishment of violations of food safety standards in processes such as the planting, breeding, sale, transport or storage of edible agricultural products, or exceeding the scope of content limit of additives, pesticides or veterinary medicines sufficient to cause a serious food poisoning incident or other serious foodborne illness.

Article 9: The addition of poisonous or harmful non-food materials during processes such as food-processing, sale, transport or storage, or the use of poisonous or harmful non-food materials to process food, shall be tried and punished as the crime of production or sale of poisonous or harmful foods, in accordance with article 144 the criminal law.

The previous clause applies to trial and sentencing for the use of prohibited substances such as prohibited pesticides or veterinary medicines or other poisonous or harmful substances during processes such as food-processing, sale, transport or storage.

The first paragraph applies to the trial and sentencing for the illegal addition of medicines prohibited by the state and other poisonous and harmful substances.

Article 10: The production or sale of food additives, food packaging materials, containers, cleaning agents or disinfectants, or tools and equipment used in food production and business operations, that do not meet food safety standards and comprise a crime, is tried and punished as the crime of production or sale of shoddy goods in accordance with article 140 of the Criminal Law.

Article 11: Violating state regulations to produce or sell prohibited non-food materials used in the production or sale of food, for the purpose of making them available to others to produce or sell food, where the circumstances are serious, is tried and punished as the crime of illegal business operations in accordance with article 225 of the Criminal Law.

Follow the provisions of the previous paragraph for the trial and punishment of violations of national regulations to produce or sell pesticides, veterinary medicines, feed, feed additives, or raw feed materials and raw feed additive materials, the production or sale of which has been prohibited by the nation, and where the circumstances are serious.

Where perpetrating the conduct in the previous two paragraphs also constitutes other crimes such as the crime of producing or selling shoddy goods, or the crime of producing or selling shoddy pesticides or veterinary medicines, try and punish it in accordance with the more serious offense.

Article 12: Privately setting up a pig slaughterhouse (abattoir) or engaging in the slaughter or sale of pigs in violation of national regulations, where the circumstances are serious, is tried and punished as the crime of illegally operating a business, in accordance with article 225 of the criminal law.

Where carrying out the conduct in the previous paragraph also comprises crime such as production or sale of food that does not meet food safety standards, or production or sale of poisonous or harmful foods it will be tried as the more serious offense.

Article 13: Production or sale of food that does not meet the food safety standards, or of poisonous or harmful foods, meeting the requirements of articles 143 and 144 of the Criminal Law, will be tried and punished as the crimes of production or sale of food not meeting the food safety standards, or production or sale of poisonous or harmful foods. Where conduct comprises another crime at the same time, follow the provisions for the more serious of the crimes at trial and sentencing.

Where there is no evidence showing that the production or sale of food not meeting the food safety standards is sufficient to cause a serious food poisoning incident or other serious foodborne illness, and the crime of production or sale of food not meeting food safety standards is not established, but another crime such as the production or sale of shoddy goods is established, it shall be tried and punished as the other crime.

Article 14: Where it was known that another had produced or sold food not meeting food safety standards, any of the following situations are tried and punished on an accomplice theory as the crimes of production or sale of food not meeting food safety standards or the production or sale of poisonous or harmful food:

(1) providing capital, loans, accounts, invoices, or permits;

(2) providing the places of production or business, or supplying facilitation requirements such as transportation, storage, bailment, mailing and online sales channels.

(3) Providing production techniques or raw food materials, food additives or food-related goods;

(4) Providing Commercials and other publicity.

Article 15: Where advertisers, advertising agents or the publishers of advertisements violate national regulation by utilizing advertisements to make false claims regarding health foods or other foods, and the circumstances are serious, it is tried and punished as the crime of false advertising.

Article 16: Employees of state organs that have the duty to supervise and manage food safety and who abuse the powers of their office or neglect their duties so as to cause a serious food safety incident or other serious harm, and the conduct also amounts to dereliction of food safety duties or other dereliction of duty crimes such as the corrupt failure to file a criminal case, corruption in commercial inspections, commercial in quarantine inspections, , or faking a commercial inspection for personal gain, or permitting the sale of shoddy or counterfeit goods, it shall be tried and punished as the more serious crime.

Employees of state organs that have the duty to supervise and manage food safety who abuse the powers of their office or neglect their duties, where it does not comprise the crime of food supervision malpractice but comprises other crimes of dereliction of duty, are tried as the other crime.

Employees of state organs with the duty to supervise and manage food safety who abuse the powers of their office to commit crimes endangering food safety, that at the same time comprise crimes of dereliction of duty and accomplice liability for a crime endangering food safety, are tried and punished according to the more serious crime.

Article 17: The crime of production or sale of food not meeting food safety standards or the crime of production or sale of poisonous or harmful food, shall usually be given a fine of double the amount produced or sold.

Article 18: Criminals perpetrating the crimes provided for in this interpretation shall follow the provision of the criminal law in strictly applying suspended sentences and excusing criminal penalties. Suspended sentences may be applied for criminals meeting the requirements on the basis of the facts of the case facts, circumstances and expression of remorse, but a prohibition order shall be announced at the same time, prohibiting them from engaging in the production or sale of food or any related activites during the probationary period of the suspended sentence.

Article 19: Workplaces perpetrating the crimes provided in this interpretation are punished in accordance with this interpretation's sentencing standards.

Article 20: The following substance shall be considered " poisonous or harmful non-food materials":

(1) substance that laws and regulations prohibit from use or addition of in food production and operations.

(2) Substances that the relevant department of the State Council has announce in the "List of inedible substances that might be illegally added to food: and "list of inedible substances that might be added to health foods" ;

(3) Pesticides, veterinary medicines and other poisonous or harmful substances that the relevant department of the State Council has publicly announce are prohibited for use ;

(4) Other substances harmful to people's health.

Article 21: Where "Sufficient to cause a serious food poisoning incident or other food-borne illness""poisonous or harmful non-food materials" are difficult to determine , judicial organs may make assessments on the basis of test reports together with expert opinions and other relevant materials. When necessary, the people's courts may notify relevant experts to appear in court and give an explanation.

Article 22: Where interpretations previously released by the Supreme People's Court and Supreme People's Procuratorate differ from this interpretation, this interpretation is controlling.

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