For transferred cases, the evidence collected by the transferring organ in accordance with its ex officio investigation may be used as evidence in the case, which is the second paragraph of article 23 of the "Provisions on Administrative Punishment Procedures for Market Regulation" (hereinafter referred to as the Procedural Provisions);The third paragraph also stipulates that evidence shall comply with the provisions of laws, regulations, and rules on evidence, and can only be used as the basis for determining the facts of the case after being verified to be true. Evidence obtained by illegal means must not be the basis for determining the facts of the case. With regard to the review and determination of evidence in cases transferred by other departments to the market regulation departments, the author believes that the evidentiary materials of cases transferred by other departments should be carefully reviewed.
Facts
At the beginning of 2023, the public security organs of a city in Hubei Province cracked a criminal case involving food and drugs, because it involved the sale of the items involved in the case by Sun Moumou in a county under its jurisdiction, that is, the public security bureau of the place involved in the case conducted an investigation and transferred it to the procuratorate for review. In June, the county market supervision bureau received a procuratorial opinion from the procuratorate, saying that the county public security bureau transferred the case of Sun Moumou suspected of selling counterfeit drugs to the procuratorate for prosecution, and after the procuratorate's review and investigation, Sun Moumou carried out the acts provided for in article 144 of the Criminal Law, but the circumstances of the crime were minor, and there were circumstances of returning stolen goods and voluntarily admitting guilt and accepting punishment, and it was decided not to prosecute Sun Moumou. According to the provisions of the Food Safety Law, it is recommended that the Market Supervision Bureau deal with Sun Moumou accordingly. The main evidence found by the Market Supervision Bureau during the trial of the case includes: the letter and reply of the public security organ requesting the Liaoning Provincial Drug Administration to cooperate, the inspection report issued by a testing company in Henan, the inspection report issued by an inspection, testing, supervision and inspection research institute in Hubei Province, the reply letter of the market supervision bureau of a certain city to identify counterfeit drugs for the items involved in the case, the prosecution opinion of the county public security bureau, and the decision of the county procuratorate not to prosecute. Evidentiary materials such as the criminal verdict of the urban people's court of a certain city that ruled that the defendant was guilty of poisonous and harmful food, and the criminal ruling of the municipal intermediate people's court rejecting the appeal of the three defendants in the original trial, obtained by the market supervision bureau after the case was filed.
The different application and outcome of the evidence in the case
After accepting the case and conducting relevant investigations, the case-handling agency held that the parties to the case transferred by the public security organs were suspected of selling counterfeit drugs in violation of Article 98 of the Drug Administration Law and constituted the sale of counterfeit drugsSecond, it is suspected that the sale of food with sildenafil citrate violates the provisions of Article 34 (1) of the Food Safety Law, and constitutes an illegal act of dealing in food with chemical substances other than food additives and other substances that may endanger human health. The reasons are as follows: First, the reply letter from the Liaoning Provincial Drug Administration to the public security bureau of a city on the investigation letter indicates that the attached "Viagra" sildenafil citrate tablets are not produced by Pfizer PharmaceuticalSecond, the market supervision bureau of a certain city determined that "Viagra" sildenafil citrate tablets were counterfeit drugs according to the business invitation letter of the city's public security bureau for the identification of counterfeit drugs, and at the same time determined that "products marked with drug document numbers and generic names of drugs and products that express or imply disease prevention, function or medicinal efficacy despite the food approval number can be sent to the inspection agency without being sent to the inspection agency";The third is the prosecution opinion of the county public security organ, which holds that the party concerned is suspected of selling counterfeit drugs, etc., indicating that the party concerned has constituted an illegal act of selling counterfeit drugs and operating food with chemical substances other than food additives and other substances that may endanger human health.
However, in the process of legal review, the audit agency believes that the evidence in the case is not sufficient to determine that the party sold counterfeit drugs, but it should be determined that the party's behavior violated the provisions of Article 34 (1) of the Food Safety Law, constituting an illegal act of selling and operating food with chemical substances other than food additives and other substances that may endanger human health. Here's why:
First, whether the inspection report issued by a testing company in Henan or an inspection, testing, supervision and inspection institute in Hubei Province is "sildenafil", the test conclusion is that "sildenafil is detected in the sample", and the test basis is "the determination of nafil substances in food BJS 201805". The series of test reports show that the items entrusted for testing of the samples submitted for testing are not tested according to the ingredients contained in the drug or the items submitted for testing according to the national drug standards, but according to whether the food is added and contains a certain drug ingredient.
The second is whether the reply of the market supervision bureau of a certain city on the determination that the counterfeit drug "Viagra" sildenafil citrate tablets is a counterfeit drug is applicable in this case. Article 121 of the Drug Administration Law stipulates that the decision on the punishment of counterfeit or inferior drugs shall state the quality inspection conclusion of the drug inspection agency in accordance with the law. Although the Reply to Issues Concerning the Identification of Counterfeit and Inferior Drugs issued by the General Department of the State Food and Drug Administration indicates that the application of Article 98, Paragraph 2 (4) and Article 98, Paragraph 3 (3) to (7) of the Drug Administration Law only requires the determination of facts and does not require inspection and testing;For the second paragraph of Article 98, that is, "(1) the ingredients contained in the drug do not conform to the ingredients specified in the national drug standards, (2) the non-drug is passed off as a drug or other drugs are passed off as such drugs, (3) the drug is deteriorated, and the ingredients contained in the drug in paragraph 3 (1) are inconsistent with the ingredients specified in the national drug standards, and (2) the contaminated drug" These five situations need to be inspected and tested. At the same time, the State Food and Drug Administration also clarified that if the quality inspection is required for drugs produced in black dens, it should be analyzed on a case-by-case basis according to the investigation and evidence collection of the case. Because the criminal judgment of the people's court did not use the counterfeit drug identification certificate of the market supervision bureau of a certain city as evidence to determine Yuan's guilt, and the number of samples of the items (counterfeit drugs) to be tested by the parties involved in this case did not meet the inspection and testing specifications, the reply of the market supervision bureau on the determination that the counterfeit drug "Viagra" sildenafil citrate tablets was a counterfeit drug was not applicable as evidence in this case.
The third is the application of legal documents in criminal proceedings in this case. Judging from the relevant evidence in this case, although the criminal judgment of the people's court of a certain city is not direct evidence in this case, it is highly relevant to this case. The criminal verdict found that one of the defendants, Yuan, purchased "sexual health products" containing "sildenafil" from others, and supplied them to a number of downstream sellers by express delivery, and the downstream sellers (including the parties in this case) retailed them through the ** health care product store he operated. An inspection, testing, supervision, inspection and inspection institute in Hubei Province conducted an ingredient identification of the "sexual health products" involved in the case, and all of them were identified as containing the ingredient "sildenafil", which is prohibited from being added to food. Similarly, the procuratorate's decision not to prosecute did not determine the sale of counterfeit drugs by the parties in this case, but determined that the parties had violated the law of dealing in food with chemical substances other than food additives and other substances that might endanger human health, and determined the value of the goods involved in the case and the relevant profits. Therefore, the decision not to prosecute involving the direct evidence of the parties and the criminal judgment of the people's court on indirect evidence can be directly used.
Fourth, the determination of other evidence. Among the evidence transferred to the case, the witness testimony related to the parties in this case includes: Yuan's transcript materials, the public security organ's 4 transcripts of the parties in this case, the WeChat chat records and WeChat transfer records between the parties in this case and Yuan, and the investigation transcripts of 4 consumers who purchased sexual health products from the parties, etc., there is no contradiction between the evidence, and at the same time can corroborate each other, and together with the parties' transcript materials, they can prove the basic facts such as the quantity and amount of sexual health products purchased and sold by the parties. Moreover, the collection of such evidence is lawful, the evidence itself conforms to the statutory form, and there are other illegal circumstances that do not affect the validity of the evidence, and after the county bureau's investigation of the parties in the case, it can be used as evidence to determine the facts of the case.
How to do a good job in the review and identification of evidence
How can the evidence be reviewed after accepting a case transferred by another department?First of all, it is necessary to examine whether the transferring department has the qualifications of a law enforcement entity and whether the law enforcement personnel have the qualifications to enforce the law, so as to determine the legitimacy and legality of the evidence collected and collected by the transferring department. Second, review the methods for obtaining evidence collected by the transfer department, and for evidence materials collected in serious violation of legal procedures in the process of collection, evidence materials that infringe upon the lawful rights and interests of others are obtained by means such as **, secret recording, and eavesdropping, and evidence materials obtained by improper means such as inducement, fraud, coercion, and violence, and violations of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" Article 57: Evidence obtained by methods that violate legal prohibitions or infringe upon the lawful rights and interests of others cannot be used as the basis for determining the facts of a case. Secondly, documentary evidence, physical evidence, computer data and audio-visual materials, witness testimony, on-site records, and appraisal conclusions should be examined separately in the form of evidenceExamine whether the evidence is the original or original, and whether the copy or reproduction is consistent with the original or the original;Examine whether the person providing the evidence or the witness has an interest in the party, and also understand whether there are other factors that affect the authenticity of the evidence. Finally, it is necessary to exclude evidence irrelevant to the case, and conduct a comprehensive review according to the validity of the evidence to examine whether it can eliminate contradictions and form a relatively complete chain of evidence to prove the facts to be proven. 
Author |Hubei Province Yidu Market Supervision Bureau Yu Hongwei.
Audit |Yu Jackie Chan Zhang Lijuan.
Edit |Chen Ying.
Internship Editor |Du Xiaotian.
Produced by the New ** and Digital Publishing Department of China Industrial and Commercial Press.
A symposium on the fifth anniversary of the implementation of the E-Commerce Law was held in Beijing.
Tree typical strengthens the lead!Here to carry out the "double random, one open" supervision "typical case" selection!*How to characterize the company's business behavior in the status of "revoked and not cancelled" of the business license?The common electronic scale cheating methods are revealed, with ...... on how to deal with themEdible agricultural products entry inspection standards!The Beijing-Tianjin-Hebei region's first regional collaborative local standard for food safety management was released!
Regulatory EnforcementAnnual Report |Notification and Commitment System |Food |Quality |Consumer Rights Protection |Drugs |Cosmetics |Antitrust |Anti-Unfair Competition |Ad |Special Equipment |Inspection and testingLearn to rechargeYou ask me to answer |Typical Cases|One lesson a dayThink tank expertWei Junxin |Wang Difei|Liu Shuangzhou|He Maobin|Condy|Dong Xiaohui|Xie Xuyang|Jing Weidong|Jiang Shiping |Li JunProduct ActivitiesSemi-monthly subscription |Book Selection|Micro Classroom Integration**Integrated Information Service|Spot check treasure|"Three micro" selection and "five hundred" selection |Social Co-Governance ConferenceNew ** listWeChat|Weibo |Tik Tok |Headlines |Kuaishou |Consumer protectionSocial ** streamDirector|Law Enforcement Case Handling|You ask me to answer |Advertising Regulation |Food regulation.
NEW!The regulations since the establishment of the State Administration for Market Regulation are here (Order No. 1-86).
2024 Annual Issue of Market Supervision and Administration (Semi-monthly) (24 issues in total).