食品药品监管行政执法与刑事司法衔接关键问题研究

发布时间：2018-04-29 14:59

本文选题：食品 + 药品　；参考：《郑州大学》2014年硕士论文

【摘要】：研究目的：通过对现有打击食品药品违法犯罪的手段、方法、措施及工作机制进行梳理的基础上,分析存在问题,查找不足,推动当前食品药品监管部门与刑事司法机关工作有效对接,解决食品药品监管部门行政执法与刑事司法中有关案件移送、证据互相转换、检验检测与鉴定、涉案物品保管和处置等关键问题,探索构建食品药品监管部门与刑事司法部门“行刑顺畅衔接机制”,进一步加强对食品药品违法案件的查办,形成打击食品药品违法犯罪部门合力。研究方法：本研究通过文献研究法,了解国内外有关食品药品监管行政执法与涉及食品药品违法犯罪刑事司法现状、意义、问题等方面内容。调查研究法：本研究通过典型调查调查,获取有关食品药品监管行刑衔接中存在问题的第一手资料。比较研究法：本研究通过对国内部分省(市、区)食品药品监管部门办理涉嫌食品药品刑事犯罪案件移送、立案和批捕、判决进行比较,找出行食品药品监管与刑事司法衔接中存在的关键问题并寻求解决问题的思路。结果与结论：公安机关对食品药品监管部门移送的涉嫌犯罪案件重视不够,移送的案件存在被搁置现象。公安机关对移送的涉嫌刑事犯罪的案件立案的少,退回的多,退回的案件公安机关不出具不予立案相关手续,公安涉刑案件的接收部门为同级公安机关法制、治安、经侦部门、辖区派出所,不统一。检察机关的监督行为被动,无论是提起公诉还是抗诉都只是事后监督,对食品药品监管部门和公安机关的执法信息不能准确掌握,难以发挥其实质性的监督作用。检察机关对实施危害食品、药品安全犯罪的犯罪嫌疑人不批准逮捕和相对不起诉,法院定罪量刑难。刑诉法规定了行政机关证据的效力,但规定仅为原则性基本规定,没有具体的实施细则或操作规范,实践中行政执法证据能否作为刑事证据使用争议较多。食品药品检验检测和鉴定法律依据不明确、无统一的食品药品司法鉴定体系、检验检测报告和鉴定意见转化、使用困难。涉及食品药品涉案物品的保管和处置,食品药品监管部门和公安、检察、法院等相关部门并无直接的特别规定,部门做法各异,无科学和明确的界定。食品药品行政执法与刑事司法基本的衔接制度的框架已经建立,但是在立法、执法和操作上面存在不顺畅,亟需制定法律法规或出台规范性文件,科学设置国务院食品安全委员会办公室、中央政法委、最高人民法院、最高人民检察院、公安部、农业部、财政部和食品药品监管总局等部门在食品药品监管行政执法与刑事司法衔接工作中的工作职责并建立责任制,解决食品药品监管部门与司法机关在案件移送、证据互相转换、检验检测或鉴定、涉案物品保管和处置等四个关键问题,进一步畅通行刑衔接渠道。
[Abstract]:Objective: on the basis of combing the existing means, methods, measures and working mechanisms of cracking down on the illegal and criminal activities of food and drugs, the paper analyzes the existing problems and finds out the deficiencies. To promote the effective docking between the current food and drug regulatory authorities and the criminal judicial organs, to resolve the transfer of relevant cases in the administrative law enforcement and criminal justice of the food and drug regulatory authorities, the conversion of evidence from one another, the inspection, detection and appraisal of the cases, Such key issues as the custody and disposal of articles involved in the case, exploring the construction of a "smooth link between the execution of punishment" between the food and drug regulatory authorities and the criminal justice department, and further strengthening the investigation and handling of food and drug illegal cases, To form a joint effort to crack down on food and drug crimes. Research methods: through the method of literature research, this study understands the current situation, significance, problems and so on of domestic and foreign food and drug administration and enforcement and criminal justice involving food and drug crimes. Investigation and research method: through the typical investigation, this study obtains the first-hand information about the problems existing in the connection of food and drug supervision and execution. Comparative study method: this study compares the food and drug supervision departments of some provinces (cities and regions) with the transfer of criminal cases suspected of food and drugs, the filing of cases, and the approval of arrests, as well as judgments, To find out the key problems existing in the connection between food and drug supervision and criminal justice and to seek solutions. Results & conclusion: the public security organs did not pay enough attention to the suspected criminal cases transferred by the food and drug supervision department, and the transferred cases were shelved. The public security organs have put on file fewer and more cases of suspected criminal crimes transferred, and the returned cases have not been issued by the public security organs for non-filing procedures. The receiving departments of public security criminal cases are the public security organs at the same level of legal system, public security, and economic investigation departments. The district police station is not unified. The supervision behavior of procuratorial organ is passive, whether it is the prosecution or protest, it is only supervision after the prosecution, and it is difficult to control the law enforcement information of the food and drug supervision department and the public security organ accurately, so it is difficult to give full play to its substantive supervisory function. The procuratorial organ does not approve the arrest and the relative non-prosecution of the suspect who commits the crime of endangering food and drug safety, so it is difficult for the court to convict and sentence. The Criminal procedure Law stipulates the validity of the evidence of administrative organs, but the stipulation is only a basic rule of principle, and there are no specific rules of implementation or operational norms. In practice, whether administrative law enforcement evidence can be used as criminal evidence is controversial. The legal basis for food and drug inspection and identification is not clear, and there is no unified judicial identification system for food and drugs. It is difficult to use the test report and appraisal opinion. The food and drug supervision department, public security department, procuratorial department, court and other relevant departments do not have direct special regulations, and the practice of the department is different, and there is no scientific and clear definition. The framework of the basic linkage system between food and drug administration law enforcement and criminal justice has been established, but there is a lack of smooth legislation, enforcement and operation, so it is urgent to formulate laws and regulations or to issue normative documents. Scientifically set up the Office of the Food Safety Commission of the State Council, the Central political and legal Commission, the Supreme people's Court, the Supreme people's Procuratorate, the Ministry of Public Security, the Ministry of Agriculture, The work responsibilities of the Ministry of Finance, the General Administration of Food and Drug Supervision and Administration of Food and Drug Administration, and other departments in the joint work of food and drug supervision, administrative law enforcement and criminal justice, and the establishment of a responsibility system to solve the problem of the transfer of cases between the food and drug regulatory authorities and the judicial organs, Inspection or identification, storage and disposal of items involved in the four key issues, further unimpeded execution of the link channel.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.16;D925.2

【参考文献】