Make good use of food safety governance weapons -negative disclosure

Professor Shen Yan at Peking University School of Law

Modernization of the food safety governance system and governance capabilities is a long -term and arduous cause. Many important issues are involved in the four dimensions of systems, technology, resources, and personnel, especially the institutional dimension, because it directly determines the most rigorous standards and the most. Strict supervision, the strictest punishment, and the most serious accountability of how to be effectively achieved.

As a food safety governance tool, "negative disclosure" often occurs "failure". For example, the regulatory authorities notify a company with food safety issues, and many consumers cannot receive this notification in time and accurately. The modernization of the food safety governance system and governance capabilities is inseparable from negative disclosure as a new type of governance tools. How to use this tool effectively and legally requires serious treatment and exploration.

Negative disclosure function

The negative disclosure mentioned in this article does not have the terms that have appeared in existing laws. It refers to a situation, that is, the administrative organ adopts information disclosure measures. The content of the disclosure may adversely affect the specific administrative counterpart in the information disclosure. There are many different forms of negative disclosure. According to the provisions of Article 48 of the Administrative Penalty Law, the administrative organs disclose the administrative penalty decision with certain social impacts in accordance with the law; the administrative organs will be announced to the dishonest credit records or files of the administrative counterpart in accordance with the law; Risk warning information; administrative organs communicate with the media and communicate food safety risk assessment information and supervision and management information, including but not limited to notifying the supervision and inspection of administrative counterparts.

"Negative" is concerned about the objective effect of information disclosure, and it refers to the possibility of adverse effects on a specific administrative relative person. Whether it will actually adversely affects and how big it will occur and the scope of adverse effects will depend on how much it will occur. One factor. Looking at the subjective intentions of the supervisor who negatively disclosed, it is often attracted to the following different functions:

The public informed administrative organ conducts information disclosure, whether or not it has any other purposes, so that the purpose and function of the public's knowledge will always exist. The right to know the right to be considered one of the basic rights of modern society. Only by fully understanding and understanding government affairs can citizens truly realize democratic governance, whether in direct democracy or indirect democracy. Therefore, the administrative organs may be completely out of information disclosure of the legal requirements of openness, transparency, and protecting citizens' knowledge, and subjectively does not have the original intention of disclosing the adverse consequences of the administrative counterpart.

Provide warnings in the field of food safety. In the process of daily supervision, regulators found that the production and operation process of food production operators or their production and operation foods have safety risks or hidden dangers, which may harm the public's health. For the purpose of prompting to the public And publish relevant information. Even if this warning is likely to cause the public to not buy related foods and cause adverse food production operators, the main purpose and functional expectation of the regulators to warn the public and remind the public to choose carefully.

Promoting rectification of food safety supervisors to discover food safety risks or hidden dangers, or identify illegal conditions for food production and operators. In addition to making warnings, fines, or ordering corrections in accordance with different circumstances, they can also use information disclosure to create public opinion pressure or the public Be careful to choose the consumption environment of related foods, so as to force food production and operators to correct them as soon as possible.

Personalized sanctions food safety regulators believe that food production and operators have violations of laws and regulations, and are still not sufficient to avoid their old state through warning, fines, or order rectification. Then, the regulators can aggravate sanctions by negatively disclosed, so that they can bear market pressure for a long time to increase adverse consequences. Advanced sanctions and promotion of rectification are often the purpose of supervision at the same time.

The role of negative disclosure

Although the expectations and functions of the supervision of negative disclosure are different, if the disclosure information does contain the contents of the negative evaluation of food production operators or their production and operation, it is possible to objectively cause production operators or related related The reputation of food and further caused it to suffer economic disadvantages. The mechanism is the psychology of public profit and avoiding harm. When the public learns about safety risks or problems from negative disclosure, the general consumption choice is naturally "no", unless hungry is not hungry in extreme circumstances. However, the mechanism needs to have the following five conditions at the same time:

Information is an authoritative person or organization with special knowledge or special experience in the food field, and media (including self -media) that enjoys high reputation in the field of information communication, which generally have certain authority. From a public perspective, the food safety regulatory authorities can be listed in it.

Information is easy to understand and persuasive food safety related information is often based on science, involving scientific experiments, data, conclusions, and scientific expression methods. If the information disclosed is full of scientific expression and it makes it difficult for ordinary people to understand, the purpose and function of negative disclosure will be difficult to achieve.

The information is completely arriving at the moment. The biggest problem encountered in negative disclosure is that although the information is released, it may not be able to reach the public in time and fully. After the supervisor's information disclosure through the official website or paper media, it does not mean that the public must know it. This requires the supervisor to ensure the complete arrival of information through other technologies. For example, weather forecast, flood prevention information, etc. are carried out. In terms of targeted information, it is effective. For example, a tea chain store is fined and criticized for violations of operating problems during the production process. The store itself does not have a decisive impact on the corporate headquarters and other stores. Therefore, what kind of information is disclosed needs to be in line with the purpose and function of the regulators, and it is necessary to specify to the public to be careful to choose the production and operators and related foods that need to be cautious.

Information recipient is a decisive factor for the psychological and behavioral orientation of economic rational information about the psychological and behavioral orientation of the recipient of the economic rational recipient. If the information recipient does not care about such information, it still chooses to have security risks or problems, and negative disclosure is destined to be ineffective for such recipients. In this regard, the regulators are powerless, and they do not have to take responsibility for information recipients. Only when the regulators shall be ordered by the regulators to stop production and suspension or revoke the license, and the regulators shall face a misunderstanding of the tailoring of tailoring.

Construction of the rule of law with negative disclosure

The role of negative disclosure is actually a process of "administrative flag+market response". The flag -owner does not issue any instructions that have legal rights and obligations to punish the content of the person, nor will it not directly intervene in the market. However, it is precisely because it is different from traditional administrative management measures and what kind of rule of law to make it has become a tricky problem. Because "lift the flag" and how to "lift the flag" is also a exercise of power, which will have a huge impact on the benefits obtained by a specific administrative counterparty through the market. Negative disclosure emerged. For example, negative disclosure errors or improper effects, causing unnecessary adverse effects, abuse of the power of negative disclosure for unequal, unfair treatment, or using negative disclosure for rent -seeking.

In view of this, negative disclosure also needs to strengthen the construction of the rule of law in strict authorization, determining applicable conditions, standardized procedures, accepting judicial review, and responsibility for compensation.

Strict authorization cannot relax the requirements of who has the right to disclose negative disclosure because negative disclosure does not have any legal rights and obligations to punish the content of the administrative counterpart. If any internal agency, sending agency or even any staff can "raise the flag" by any internal agency, or even any staff, it will undoubtedly be more likely to cause power abuse.

Sometimes the applicable conditions are determined, and negative disclosure is used as an alternative plan. Therefore, the failure of other regulatory tools is a necessary condition for its applications. No matter how to determine the applicable conditions, such norms should not be provided by the strong stability of laws, regulations, rules, etc., and it is provided by other normative documents. Elasticity and flexibility.

After all, the specified procedure will have a de facto adverse effect on the market interests of the parties due to negative disclosure, and it is still necessary to follow the basic listening opinion procedures — unless the public health risk is imminent and listening to opinions will delay the best warning time; if it may be unfavorable The impact should be greater and should follow the legitimacy review procedures and collective decision procedures.

With a judicial review, within the framework of my country's administrative litigation system, the facts made by the administrative organs as the legal rights and interests of the prosecutor are comparatively. It is only a negative disclosure to combine the public's market selection behavior, and it has adversely affected the market interests of food production and operators involved. Negative disclosure, as a governance tool, will inevitably cause disputes. For such disputes, there is no full reason to exclude it outside the court's scope.

If the liability for compensation is negative or improper, if the food production and operators involved in the incident will bear the loss of unnecessary interests, if the victim shall file a request for administrative compensation, the supervisor who shall be negatively disclosed in accordance with the State Compensation Law shall compensate the loss. The general economic rationality of the public makes the market behavior of the negative disclosure of the supervisor's negative disclosure. Therefore, in most cases, the considerable causality between negative disclosure and damage results is established. of.

Of course, the food safety regulatory authorities should not be afraid of administrative lawsuits and state compensation without negative disclosure. The existence of judicial censorship, damage to equity damage, is only to let supervisors be cautiously disclosed according to law. Under normal circumstances, as long as the information is real, the legislation and authorized regulators release information, and the supervisor also follows the necessary procedures. It can be done completely.

Source: China Food News

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