Recently, by the Beijing King&Capital Law Firm Tang Jianbin, Gao Yumeng lawyers contracted Liu Moumou suspected of selling poisonous, harmful food cases have achieved stage-by-stage results, the person concerned Liu Moumou in the process of the case has been successfully allowed to release on bail pending trial. In the sale of toxic, harmful food criminal cases, the subjective intent is to distinguish between crime and non-crime, misdemeanor and felony of the core of the key, this case through the precise breakthrough subjective intent is difficult to achieve an effective defense, for similar cases provide a practical idea.
First, the sales of toxic, harmful food crime focus on the necessity of subjective intent
According to article 144 of the criminal law, the subjective aspect of the crime of selling poisonous and harmful food requires that the perpetrator must have the “knowledge” of the sale of food adulterated with poisonous and harmful non-food raw materials, and still be sold intentionally, including direct and indirect intentional two forms. Judicial practice, such cases involved in the behavior of the food sales chain for the intermediate link practitioners, not the main body of food production and research and development. Therefore, for the intermediate sales personnel, regardless of their education, life experience, access to product channels, etc., may be limited cognitive ability to sell food ingredients, the subjective state of mind of the investigation often becomes the focus of the case and determine whether the case is the focus of the crime.
Second, the core review points of subjective intent defense
Combined with the relevant provisions of the Criminal Law and judicial practice experience, when dealing with the sale of toxic and harmful food cases, the defense of subjective intent should focus on reviewing the following key dimensions:
(a) Examine whether there is an objective basis for the perpetrator to “reasonably rely on”.
Whether the seller's reliance on the upstream supplier is reasonable is an important basis for excluding subjective intent. In similar cases, if the upstream supplier has long-term experience in the industry, explicitly promises that the product is compliant, and even provides complete test reports and other materials, the seller's awareness of product compliance based on these objective facts should be recognized as reasonable reliance, rather than indirect intent to let the harmful results occur.
(ii) Examine whether the actor has fulfilled the duty of reasonable care
Sellers as a market business subject, its duty of care should be matched with its cognitive ability, industry status, life experience, work experience, education, etc. However, although the cognitive requirements and duty of care as a market business subject are much higher than that of an ordinary market consumer, it is not possible to demand that market operators have the same discriminatory ability as that of a professional testing organization by demanding the standards of a professional testing organization. If the perpetrator has been through positive behavior in the already have the upper reasonable trust on the basis of the product safety verification, can be found beyond the general market operators of the conventional duty of care, it can be presumed that the subjective state of mind without letting the harmful results occur. This positive behavior includes, but is not limited to, at their own expense to take the initiative to commission appraisal agencies to identify, verify the qualifications of manufacturers, site visits to the production line or independent study of relevant food and drug knowledge and obtain relevant certificates in order to prevent the occurrence of illegal acts due to ignorance or negligent indulgence, and so on.
Therefore, as an ordinary operator who does not have professional knowledge of physical and chemical identification, if it has fulfilled the duty of care through the triple way of “upstream commitment + professional testing + self-funded re-inspection”, its behavior is sufficient to reflect the prudent attitude towards the compliance of the product, and the "knowing that toxic and hazardous still sales Its behavior is sufficient to reflect a prudent attitude towards product compliance, which is essentially different from the subjective intent of “knowing that the sale is toxic and harmful”.
(iii) Examine the characteristics of the substance in question to match the cognitive ability of the perpetrator
In recent years, new substances illegally added in the food field have emerged in an endless stream, for sibutramine and other common prohibited ingredients are no longer the first choice of product manufacturers, new thiazide substances or their derivatives and other substances are the hardest hit by illegal additions in the food field today. Part of the new substance detection technology is not yet mature, and there is no lack of professional appraisal organizations lagging behind in technology updating, thus unable to match the constantly updated iterative detection requirements of illegally added substances, and therefore far beyond the cognitive scope of the ordinary operators.
In this case, if the prohibited ingredients in the food in question are new unknown substances or new derivatives of existing substances, and professional appraisal organizations are difficult to detect through conventional testing means, requiring ordinary sellers to have the ability to identify this, obviously exceeding its cognitive boundaries. As an ordinary seller, neither participate in the product production and research and development, also can not predict the existence of new unknown substances, its ignorance of the composition of the objective ability to limit the result, rather than the subjective intention to avoid the review, can not be presumed to have a subjective intent. Any presumption of subjective intent, can not exceed the scope of the cognitive ability of the perpetrator.
(D) whether the actor's cognition of the abnormal appearance of the product has reasonableness
If the food in question has certain abnormal phenomena (such as diuretic effect of weight loss products or weight reduction, male health products such as panic, stomach pain, sexual function abnormalities, etc.), we need to examine whether the explanation of the phenomenon is in line with common sense and the general public on the effectiveness of ordinary food ingredients of conventional judgment, whether based on the product of the public information to form a reasonable cognition, rather than know that the toxic and hazardous ingredients lead to the Continue to sell.
Third, the case defense strategy and results
Based on the in-depth analysis of the subjective intent, the defenders formed a targeted defense strategy in this case:
On the one hand, combined with the above mentioned matters comprehensive comb LiuMouMou no subjective intent of the core evidence, on the other hand, combined with LiuMouMou after the crime, repentance, assist the investigating authorities to capture the superior meritorious performance, as well as the Department of the first time offender, have a fixed abode, less harmful to the community and other circumstances, to further strengthen the reasonableness of the release on bail pending trial.
At the same time, the defense made clear that, even without considering the subjective intent of the determination of the controversy, Liu Moumou in the crime chain only play a supporting role in sales, should be identified as an accessory, and it has merit, voluntary return of stolen goods and restitution, such as statutory and discretionary leniency, in line with the “Criminal Procedure Law” stipulates the conditions of release on bail pending trial. Eventually, the case-handling authorities adopted the views of the defense, according to the law on liu moumou made the decision to release on bail pending trial.
Fourth, conclusion
The core of the defense of the case of selling poisonous and harmful food lies in accurately grasping the determination standard of subjective intent and avoiding objective imputation. The successful handling of this case once again proves that in similar cases, the defense around the four dimensions of “reasonable basis of trust, duty of care, cognitive ability to fulfill the boundaries, abnormal phenomenon cognition” can effectively break through the accusation of subjective intent by the authorities.
With the increasing supervision of food and drug safety, the criminal risks faced by the relevant practitioners are becoming more and more prominent. We would like to remind food sales practitioners that they should strictly fulfill the obligation of purchase inspection, retain relevant documents and remain vigilant to product anomalies; if they are involved in the case, they should appoint a professional lawyer to intervene in a timely manner to safeguard their legitimate rights and interests.
Translated with DeepL.com (free version)
