Agricultural Material Corp. of Tongzi County v. Technical Supervision Bureau of Tongzi County
(A case about appeal for retrial against administrative punishment)
BASIC FACTS@#
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BASIC FACTS@#
Appellant for retrial: The Supreme People's Procuratorate@#
Appellant in original trial (defendant in the first instance trial): The Technical Supervision Bureau of Tongzi County, Guizhou Province (formerly the Standards and Metrology Bureau of Tongzi County).@#
Legal representative: Cai Yonghua, director of this bureau.@#
Appellee in original trial (plaintiff in the first instance trial): Agricultural Material Corp. of Tongzi County, Guizhou Province.@#
Legal representative: Wang Feiyue, manager of this corporation.@#
On February 11, 1995, the Supreme People's Procuratorate filed an appeal for retrial (No.1 [1995], Civil and Administrative Appeals for Retrial of SPP) with the Supreme People's Court, against the administrative judgment (No.2 [1992], Administrative Supervision) of the Higher People's Court of Guizhou Province. The Supreme People's Court legally tried this appeal in accordance with Article 64 of the Administrative Procedural Law of the People's Republic of China.@#
The appellant in the original trial, the Technical Supervision Bureau of Tongzi County (the “TS Bureau”) decided that the 180 tons of compound fertilizer procured by the appellee in the original trial, Agricultural Material Corp. of Tongzi County (the “AM Corp.”) in October 1989 were commodities of inferior quality, and pursuant to Article 2 of the Notice of the State Council on Strictly Cracking Down on Adulterated Commodities, Article 24 of the Regulation on the Liabilities for Industrial Product Quality and Article 15 of the Interim Regulation on the Reward and Punishment concerning Product and Commodity Quality of Guizhou Province, made a decision on administrative punishment (No.7 [1990]), on April 28, 1990, that: (a) the illegal proceeds of 49,651.97 yuan from the sales of the dispatched 151.5 tons of compound fertilizer of inferior quality should be confiscated, and a fine of 9,930.39 yuan as per 20% of the illegal proceeds should be imposed, i.e. in total, 59,582.36 yuan of confiscation and a fine; (b) the 28.35 tons of compound fertilizer of inferior quality dispatched to Huaqiu Supply and Marketing Cooperative must be priced anew as per quality and sold with a quoted price; and (c) the test fee of 450 yuan should be paid by the AM Corp. Against this decision, on May 10, 1990, the AM Corp. instituted an action in the People's Court of Tongzi County. On August 29, 1990, this court made an administrative judgment (No.4 [1990], Administrative, PCTC) that: (a) the decision made by the TS Bureau on the confiscation of illegal proceeds of the AM Corp. from its sales of 151.5 tons of compound fertilizer of inferior quality and the imposition of a fine should be revoked; (b) the decision of the TS Bureau on the pricing anew as per quality and sales with a quoted price of the 28.35 tons of compound fertilizer of inferior quality should be upheld; and (c) the sample test fee should be paid by the AM Corp. The TS Bureau appealed this judgment of the People's Court of Tongzi County to the Intermediate People's Court of Zunyi Prefecture. After trial, on December 13, 1990, the Intermediate People's Court of Zunyi Prefecture made an administrative judgment (No.66 [1990], Administrative Appeals) to uphold rulings (b) and (c) in the judgment of the first instance and to revoke and change ruling (a) into that: the illegal proceeds of 49,651.97 yuan of the AM Corp. from its sales of 151.5 tons of dispatched compound fertilizer of inferior quality should be confiscated and a fine of 15% of the illegal proceeds should be imposed. On July 5, 1991, the People's Procuratorate of Guizhou Province appealed the judgment of the second instance to the Higher People's Court of Guizhou Province for retrial. After retrial, on June 16, 1992, the Higher People's Court of Guizhou Province made an administrative judgment (No.2 [1992], Administrative Supervision). In this administrative judgment, it was held that the evidence was sufficient for the TS Bureau to determine that the 151.5 tons of sold compound fertilizer were same lot as the compound fertilizer sampled to be of inferior quality. The AM Corp., as a product supplier, failed to inspect the product quality at the time of stocking, which violated Article 14 of the Regulation on the Liabilities for Industrial Product Quality and caused the sales of compound fertilizer of inferior quality, and should be punished. It was legal for the TS Bureau to punish it pursuant to Article 25 of the Regulation on the Liabilities for Industrial Product Quality; it was correct for the Intermediate People's Court of Zunyi Prefecture in its judgment of the second instance to support the punishment, but there lacked a basis for citing the state specialized standards for compound fertilizer, which should be redressed; whereas the Administration of Industry and Commerce of Tongzi County (the “Tongzi AIC”) failed to find in its capacity this lot of compound fertilizer sold by the AM Corp. to be commodities of inferior quality and allowed the sales to continue, the TS Bureau found this lot of compound fertilizer inconsistent with the state standards and made a decision on punishment, which was not repetitive investigation; since the AM Corp. showed a good attitude during the investigation, the fine may be exempted. Hence, this court ruled: (a) to uphold the judgment of the court of the second instance on supporting the TS Bureau's decision on the confiscation of the illegal proceeds of 49651.97 yuan of the AM Corp. from its sales of compound fertilizer of inferior quality, the pricing anew as per quality and sales with a quoted price for the 28.35 tons of compound fertilizer of inferior quality dispatched to Huaqiu Supply and Marketing Cooperative, and the payment by the AM Corp. for the sampling test fee; and (b) to revoke the decision of the TS Bureau on imposing a fine on the AM Corp.@#
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桐梓县农资公司诉桐梓县技术监督局行政处罚抗诉案@#
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抗诉机关：最高人民检察院。@#
原审上诉人（一审被告）：贵州省桐梓县技术监督局（原名桐梓县标准计量局）。@#
法定代表人：蔡永华，该局局长。@#
原审被上诉人（一审原告）：贵州省桐梓县农资公司。@#
法定代表人：王飞跃，该公司经理。@#
最高人民检察院于１９９５年２月１１日就贵州省高级人民法院（９２）行监字第０２号行政判决以（１９９５）高检民行抗字第１号抗诉书向最高人民法院提出抗诉。最高人民法院依照《中华人民共和国行政诉讼法》第六十四条的规定，依法进行了审理。@#
原审上诉人桐梓县技术监督局（以下简称技术监督局）确认原审被上诉人桐梓县农资公司（以下简称农资公司）１９８９年１０月购进的１８０吨复混肥为劣质商品，根据国务院《关于严禁打击在商品中掺杂使假的通知》第二条、《工业产品质量责任条例》第二十四条、《贵州省产品商品质量奖励处罚暂行条例》第十五条的规定，于１９９０年４月２８日作出桐标计质（１９９０）０７号行政处罚决定；（一）对农资公司已调拨销售１５１．５吨劣质复混肥的非法收入４９６５１．９７元予以没收，并按非法收入的２０％罚款９９３０．３９元，合并执行罚没款５９５８２．３６元；（二）对调往花秋供销社的２８．３５吨劣质复混肥必须重新依质论价，挂牌销售；（三）检测费４５０元由农资公司承担。农资公司不服该决定，于１９９０年５月１０日向桐梓县人民法院提起诉讼。该院于１９９０年８月２９日作出（１９９０）桐法行字第４号行政判决：（一）撤销技术监督局所作出的没收农资公司经销的１５１．５吨复混肥非法所得和罚款的决定；（二）维持技术监督局所作的依质论价，挂牌销售２８．３５吨劣质复混肥决定；（三）抽样送检的检测费由农资公司负担。技术监督局不服桐梓县人民法院的判决，向遵义地区中级人民法院提出上诉。遵义地区中级人民法院经审理，于１９９０年１２月１３日作出（１９９０）行上字第６６号行政判决：维持一审判决中的第（二）项和第（三）项；撤销第（一）项改判为，没收农资公司调拨销售的１５１．５吨劣质复混肥的非法收入４９６５１．９７元、并处以该非法收入的１５％的罚款。贵州省人民检察院就第二审判决于１９９１年７月５日向贵州省高级人民法院提出抗诉。贵州省高级人民法院经再审审理，于１９９２年６月１６日作出（９２）行监字第０２号行政判决。该行政判决认定，技术监督局确认已销售的１５１．５吨复混肥与被抽查检测为劣质的复混肥是同一批次产品，证据是充分的。农资公司作为产品经销单位在进货时，没有对产品质量进行验收，违反了《工业产品质量责任条例》第十四条的规定，以致销售了劣质复混肥，应当受到处罚。技术监督局依照《工业产品质量责任条例》第二十五条的规定，对其进行查处是合法的；遵义地区中级人民法院第二审判决给予支持是正确的，但引用国家关于复混肥料专业标准的内容没有根据，应予纠正；技术监督局在桐梓县工商行政管理局（以下简称工商行政管理局）行使职权中未能查出农资公司经销的该批复混肥为劣质商品，并允许其继续销售的情况下，查出农资公司经销的该批复混肥不符合国家标准并作出处罚决定，不属于重复处理；农资公司在被查处过程中态度较好，可以免除罚款。据此，判决：（一）维持二审法院支持技术监督局没收农资公司经销劣质复混肥的非法收入４９６５１．９７元，对已调往花秋供销社的２８．３５吨劣质复混肥依质论价挂牌销售和农资公司应负担抽样送检费的判决；（二）撤销技术监督局对农资公司的罚款决定。@#
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