| Ten Model Cases regarding Economic Administration Tried by People's Courts Punished by the Supreme People's Court | | 最高人民法院发布10起人民法院经济行政典型案例 |
| (October 22, 2015) | | （2015年10月22日） |
| Table of Contents | | 目录 |
| 1. Nanjing Faershi New Energy Co., Ltd. v. People's Government of Jiangning District of Nanjing City (case about an administrative decision) | | 1.南京发尔士新能源有限公司诉南京市江宁区人民政府行政决定案 |
| 2. Ji'an Company of Jiangxi Salt Industry Group Corporation v. Administrative Department for Industry and Commerce of Ji'an City (case about an administrative penalty) | | 2.江西省盐业集团公司吉安公司诉吉安市工商行政管理局行政处罚案 |
| 3. Hongrun Supermarket in Erling Township of Danyang City v. Market Supervision and Administration Bureau of Danyang City (case about administrative registration) | | 3.丹阳市珥陵镇鸿润超市诉丹阳市市场监督管理局行政登记案 |
| 4. Deqing Moganshan Snakes Industrial Co., Ltd. v. Food and Drug Administration of Zhejiang Province (case about administrative supervision) | | 4.德清莫干山蛇类实业有限公司诉浙江省食品药品监督管理局行政监督案 |
| 5. Shanghai Huici Medical Apparatus & Instruments Co., Ltd. v. Public Finance Bureau of Chongming County (case about an administrative decision) | | 5.上海辉慈医疗器械有限公司诉崇明县财政局行政决定案 |
| 6. Qingdao Aisimeng Food Co., Ltd. v. Sifang Branch of the Administrative Department for Industry and Commerce of Qingdao City (case about an administrative penalty) | | 6.青岛爱思梦食品有限公司诉青岛市工商行政管理局四方分局行政处罚案 |
| 7. Pingxiang Yapeng Real Estate Development Co., Ltd. v. Land and Resources Bureau of Pingxiang City (case about an administrative agreement) | | 7.萍乡市亚鹏房地产开发有限公司诉萍乡市国土资源局行政协议案 |
| 8. Qingdao Aoguangtong Mechanical Construction Co., Ltd. v. Administrative Department for Industry and Commerce of Jimo City (case about administrative nonfeasance) | | 8.青岛遨广通机械施工有限公司诉即墨市工商行政管理局行政不作为案 |
| 9. Fujian Xinxin Real Estate Development Co., Ltd. v. Administrative Department for Industry and Commerce of Pinghe County (case about an administrative penalty) | | 9.福建新新房地产开发有限公司诉平和县工商行政管理局行政处罚案 |
| 10. Zhou Ketian, Wei Dazhi, Chen Fengjiao, and He Xiangzeng v. China Securities Regulatory Commission (case about administrative penalties) | | 10.周可添、魏达志、陈凤娇、何祥增诉中国证券监督委员会行政处罚案 |
| 1. Nanjing Faershi New Energy Co., Ltd. v. People's Government of Jiangning District of Nanjing City (case about an administrative decision) | | 一、南京发尔士新能源有限公司诉南京市江宁区人民政府行政决定案 |
| (1) Basic Facts | | （一）基本案情 |
| In July 2010, the Development and Reform Commission of Nanjing City, Jiangsu Province put on records of ten enterprises as designated entities recycling and processing waste edible oil and fat, including Nanjing Faershi Chemical Plant and Nanjing Lisheng Waste Oil & Fat Recycling and Processing Center. In November, 2012, the People's Government of Jiangning District, Nanjing City (hereinafter referred to as the “Government of Jiangning District”) issued the Notice on Issuing the Work Plan for the Management of Kitchen Wastes in Jiangning District (No. 396 [2012], People's Government, Jiangning) (hereinafter referred to as No. 396 Document). It was specified that “it hereby designates Nanjing Lisheng Renewable Resources Development Co., Ltd. (hereinafter referred to as “Lisheng Company”) to engage in the collection, transport, and processing of kitchen wastes in Jiangning District.” In March 2014, the Urban Administration Bureau and the Commerce Bureau of Jiangning District issued official letters and required all pig slaughter houses to implement the provisions of No. 396 Documents and conclude collection and transport agreements with Lisheng Company; otherwise, they would be imposed upon administrative penalties. Nanjing Faershi New Energy Co., Ltd. (hereinafter referred to as “Faershi Company”) refused to accept No. 396 Document, filed a lawsuit with the court, and requested that the designation of Lisheng Company in the Document should be revoked and its losses should be compensated. | | 江苏省南京市发展和改革委员会于2010年7月对10家企业作出废弃食用油脂定点回收加工单位备案，其中包括南京发尔士化工厂和南京立升废油脂回收处理中心。2012年11月，南京市江宁区人民政府（以下简称江宁区政府）作出江宁政发（2012）396号《关于印发江宁区餐厨废弃物管理工作方案的通知》（以下简称396号文），明确“目前指定南京立升再生资源开发有限公司（以下简称立升公司）实施全区餐厨废弃物收运处理。”该区城市管理局和区商务局于2014年3月发出公函，要求落实396号文的规定，各生猪屠宰场点必须和立升公司签订清运协议，否则将进行行政处罚。南京发尔士新能源有限公司（以下简称发尔士公司）对396号文不服，诉至法院，请求撤销该文对立升公司的指定，并赔偿损失。 |
| (2) Adjudication | | （二）裁判结果 |
| After a trial of first instance, the Intermediate People's Court of Nanjing City held that: The designation of Lisheng Company in No. 396 Document by defendant Government of Jiangning District actually affirmed the qualification of Lisheng Company for engaging in the business of kitchen wastes in Jiangning District, which constituted substantial administrative licensing. The official letters issued by the Urban Administration Bureau and the Commerce Bureau of Jiangning District showed that defendant's designation has been implemented in reality. In accordance with the relevant provisions of the Administrative Licensing Law, to accept, examine, and make an administrative licensing, the administrative organ should perform the relevant administrative procedures. Before designating Lisheng Company, defendant performed no administrative procedure. Therefore, the administrative action at issue was a procedural violation. Defendant has adopted the method of direct designation other than invitation for bid and other fair competition ways. In this way, other possible market participants were excluded. It constituted restriction of market competition through administrative powers and violated the provisions of Article 19 of the Measures of Jiangsu Province for the Administration of Kitchen Wastes and Article 32 of the Anti-Monopoly Law. In order to strengthen supervision over the market of kitchen waste processing, defendant conducted necessary standardization and restrictions for the normal market functioning, but it should not adopt the method of designating a company in the administrative document. Since plaintiff Faershi Company failed to provide any evidence to verify its compensation claim, the court did not support such claim. Therefore, the Intermediate People's Court of Nanjing City rendered a judgment to revoke defendant's designation of Lisheng Company in No. 396 Document and dismiss other claims of plaintiff. After the judgment of first instance was pronounced, neither party appealed. | | 南京市中级人民法院一审认为，被告江宁区政府在396号文中的指定，实际上肯定了立升公司在江宁区开展餐厨废弃物业务的资格，构成实质上的行政许可。区城市管理局和区商务局作出的公函已经表明被告的指定行为事实上已经实施。根据行政许可法相关规定，行政机关受理、审查、作出行政许可应当履行相应的行政程序，被告在作出指定前，未履行任何行政程序，故被诉行政行为程序违法。被告采取直接指定的方式，未通过招标等公平竞争的方式，排除了其他可能的市场参与者，构成通过行政权力限制市场竞争，违反了《江苏省餐厨废弃物管理办法》第十九条和反垄断法第三十二条的规定。被告为了加强餐厨废弃物处理市场监管的需要，对该市场的正常运行作出必要的规范和限制，但不应在行政公文中采取明确指定某一公司的方式。原告发尔士公司对其赔偿请求未提交证据证实，法院对此不予支持。遂判决撤销被告在396号文中对立升公司指定的行政行为，驳回原告的其他诉讼请求。一审宣判后，双方当事人均未上诉。 |
| (3) Significance | | （三）典型意义 |
| This is a model case regarding administrative monopoly. Administrative monopoly refers to such acts of an administrative organ as abusing the administrative power, illegally raising the threshold for market access, illegally designating specific enterprise to engage in specific business, and illegally setting conditions to restrict other enterprises from participating in competition. It infringes upon market players' right of fair competition and causes great damages to and adverse impacts on the normal operation of economic activities, the free flow of commodities and even the internal and external images of governments. Administrative monopoly is explicitly prohibited in both the Anti-Monopoly Law and the Anti-Unfair Competition Law of China. In this case, the Government of Jiangning District directly designated Lisheng Company in the administrative document rather than adopted such fair competition ways as invitation for bid, which excluded other possible market participants and constituted an illegal circumstance where market competition was restricted through administrative powers. The people's court rendered the judgment according to the law, which was of positive guiding significance. In the newly-amended Administrative Litigation Law, the “abuse of administrative power to infringe upon the right of fair competition” has been explicitly included in the scope of case acceptance, which highlights the role of administrative trial in effectively maintaining the normal competition order at the market. With continuous improvement of the rule of law, citizens, legal persons, and various market players will play more important roles in safeguarding their legal rights and supervising and regulating administrative monopoly by utilizing the legal weapon of the Administrative Litigation Law. | | 本案是涉及行政垄断的典型案件。行政垄断指行政机关滥用行政权力，违法提高市场准入门槛、违法指定特定企业从事特定业务、违法设置条件限制其他企业参与竞争等行为。它侵犯了市场主体的公平竞争权，对经济活动的正常运行、商品的自由流通乃至政府的内外形象都会造成较大破坏和不利影响，我国反垄断法和反不正当竞争法对此明令禁止。本案中，江宁区政府在行政公文中直接指定立升公司，未通过招标等公平竞争方式，排除了其他可能的市场参与者，构成通过行政权力限制市场竞争的违法情形。人民法院依法裁判，具有积极导向意义。新修改的行政诉讼法将“滥用行政权力侵犯公平竞争权”明确纳入受案范围，就是为突出行政审判对市场正常竞争秩序的有力维护。随着法治不断进步，公民、法人等各类市场主体在运用行政诉讼法律武器依法维权、监督和规制行政垄断方面，将发挥越来越大的作用。 |
| 2. Ji'an Company of Jiangxi Salt Industry Group Corporation v. Administrative Department for Industry and Commerce of Ji'an City (case about an administrative penalty) | | 二、江西省盐业集团公司吉安公司诉吉安市工商行政管理局行政处罚案 |
| (1) Basic Facts | | （一）基本案情 |
| The Salt Bureau of Ji'an City, Jiangxi Province was an institution in charge of salt industry authorized by the State Council. Ji'an Company of Jiangxi Salt Industry Group Corporation (hereinafter referred to as “Ji'an Salt Industry Company”) was an enterprise that has been registered at the administrative department for industry and commerce and has handled the business license (with the business scope of edible salt, various salts, venue rental, and daily necessities). They were two brands under the administration of the same personnel. Besides being specialized in the business of edible salt wholesale, Ji'an Salt Industry Company was also engaged in the business of daily necessities. In order to improve the profitability, some salesmen of the Company mandatorily collocated edible salt with non-salt commodities (including cooking oil and white wine) in the process of wholesale and distribution of edible salt or collocated edible salt with low-sodium salt and deep well salt in the process of distribution of edible salt; otherwise, they would terminate the supply of edible salt on the excuse that there was no high-sodium salt (mesohaline) or salt. Dissatisfied with Ji'an Salt Industry Company, some edible salt retailers filed complaints with the Administrative Department for Industry and Commerce of Ji'an City, which then twice issued notices on ordering corrections to Ji'an Salt Industry Company in 2012 and 2013. After docketing the case and conducting criminal investigation, the Administrative Department for Industry and Commerce of Ji'an City notified the Company of its right to a hearing and in July 2014 after hearing its statement, made a decision of administrative penalty; ordered the Company to cease its illegal activities; and imposed a fine of 160,000 yuan on it. Ji'an Salt Industry Company refused to accept the administrative penalty and applied for administrative reconsideration. The reconsideration authority affirmed the aforesaid decision of administrative penalty. The Company filed a lawsuit with the court and requested the court to revoke the decision of administrative penalty made by the Administrative Department for Industry and Commerce of Ji'an City. | | 江西省吉安市盐务局是国务院授权的盐业主管机构，江西省盐业集团公司吉安公司（以下简称吉安盐业公司）是经工商部门注册登记并办理营业执照的企业（经营范围为食盐、各类用盐、场地出租、日用百货等），二者属一套人马两块牌子。因吉安盐业公司除专营食盐批发业务外，还经营日用百货，为提高企业效益，该公司部分业务员在批发、配送食盐过程中，强制搭配非盐商品（食用油、白酒等）或在食盐配送过程中搭配低钠盐、深井盐，否则就以无高钠盐（中盐）或无盐为由停止供应食盐。部分食用盐零售商不满，向吉安市工商行政管理局（以下简称市工商局）投诉，该局先后于2012、2013年两次向吉安盐业公司下达责令改正通知书。后经市工商局立案调查，告知该公司听证权利并听取陈述后，于2014年7月作出行政处罚决定：责令停止违法行为，处以罚款16万元。吉安盐业公司不服，申请行政复议后复议机关维持上述处罚决定。该公司诉至法院，请求撤销市工商局的行政处罚决定。 |
| (2) Adjudication | | （二）裁判结果 |
| After a trial of first instance, the People's Court of Jizhou District, Ji'an City held that: As a state enterprise engaged in the exclusive business of edible salt, plaintiff Ji'an Salt Industry Company had the statutory franchise and had different dominance in edible salt retailers compared to other ordinary operators; however, the status of business subjects should be equal. In various business activities launched by plaintiff, it forced edible salt retailers to conduct tie-in sales of low-sodium salt and such non-salt commodities as cooking oil, a variety of washing products, and white wine by making use of its exclusive advantageous position in the wholesale and distribution of edible salt. The Company restricted other persons to the purchase of commodities of an operator designated by it and violated the provisions of Article 6 of the Anti-Unfair Competition. Therefore, the People's Court of Jizhou District rendered a judgment to affirm the decision of administrative penalty made by defendant the Administrative Department for Industry and Commerce of Ji'an City. After the Company appealed, the Intermediate People's Court of Ji'an City rendered a judgment to dismiss the appeal and affirm the original judgment. | | 吉安市吉州区人民法院一审认为，原告吉安盐业公司作为国家食盐专营企业，具有法定的独占经营权，与其他普通经营者对食盐零售商具有不同支配地位，但其经营主体、地位应当平等。原告在开启多种经营活动中，利用自身专营食用盐的批发、配送过程中的独占优势地位，强制食用盐零售商搭售低钠盐及非盐商品食用油、洗涤系列产品、白酒等商品，其行为构成了限定他人购买其指定的经营者的商品，违反了反不正当竞争法第六条规定，遂判决维持被告吉安市工商局作出的行政处罚决定。该公司上诉后，吉安市中级人民法院判决驳回上诉、维持原判。 |
| (3) Significance | | （三）典型意义 |
| This is a model case in which an administrative organ investigated and punished activities of unfair competition according to the law. One prominent manifestation of unfair competition is that public utility enterprises and other operators that have exclusive control according to the law restrict other persons to the purchase of commodities of an operator designated by them, conduct tie-in sales of commodities against the will of buyers, or add other unreasonable conditions, which seriously infringe upon other operators' right of fair competition, squeeze other operators out, and deprive other persons of the opportunities to acquire wealth on an equal footing. The establishment of a market order with equality, freedom, and orderly competition cannot be separated from the full protection of operators' right of fair competition. Such right is a basic right for various market players to engage in business activities and is also the ballast for stabilizing the market order and stimulating innovation vigor. In this case, by making use of its exclusive franchise, Ji'an Salt Industry Company forcibly conducted tie-in sales of non-salt commodities, which was a typical act of unfair competition. According to complaints, the administrative department for industry and commerce investigated the Company's forcible tie-in sales, which was an action of properly performing the functions of prohibiting and punishing illegal business activities and maintaining the market order. The judgment of the court has highlighted the vigorous maintenance of administrative trial for the rights and interests of fair competition, the great support to administrative organs for strict law enforcement, and the effective propulsion for the sustainable and sound development of the market-oriented economy. | | 本案是行政机关依法查处不正当竞争行为的典型案件。不正当竞争行为的突出表现之一，是公用企业等依法具有独占地位的经营者，限定他人购买其指定的经营者的商品，或违背购买者意愿搭售商品或附加其他不合理的条件，上述行为严重侵害了其他经营者的公平竞争权，排挤、剥夺了他人公平获得财富的机会。要建立平等自由、竞争有序的市场秩序，离不开对于广大经营者公平竞争权的充分保护。这一权利是各类市场主体从事经营活动的基础性权利，是稳定市场秩序、激发创新活力的压舱石。本案中，吉安盐业公司利用独占经营权，强行搭售非盐商品，是一种典型的不正当竞争行为，工商机关根据举报对该公司强行搭售行为予以查处，是正确履行制止和处罚违法经营活动、保障市场秩序的职能行为。法院的裁判彰显了行政审判对公平竞争权益的有力维护，对行政机关严格执法的有力支持，对市场经济持续健康发展的有力推进。 |
| 3. Hongrun Supermarket in Erling Township of Danyang City v. Market Supervision and Administration Bureau of Danyang City (case about administrative registration) | | 三、丹阳市珥陵镇鸿润超市诉丹阳市市场监督管理局行政登记案 |
| (1) Basic Facts | | （一）基本案情 |
| In February 2015, Hongrun Supermarket in Erling Township, Danyang City, Jiangsu Province (hereinafter referred to as “Hongrun Supermarket”) submitted a written application for modification of registration of the individual industrial and commercial household to the Market Supervision and Administration Bureau of Danyang City and applied for adding vegetable retail business to the authorized business scope of the original business license. In February 2015, the Market Supervision and Administration Bureau of Danyang City issued to Hongrun Supermarket a written notice on accepting the application for modification of registration of the individual industrial and commercial household. Upon subsequent examination of materials and field investigation and verification, it recognized that the premises of Hongrun Supermarket was less than 200 m away from Erling Farmers' Market in Danyang City and the application of Hongrun Supermarket did not conform to the provisions that “no agriculture and sideline products distribution site similar to a vegetable market may be built within the range of 200 m nearby the vegetable market” in the Notice on Forwarding the Specifications of the Commerce Bureau of Danyang City for the Building of Vegetable Markets (No. 29 [2012], People's Government, Danyang) (hereinafter referred to as “No. 29 Document”) issued by the People's Government of Danyang City. Therefore, the Market Supervision and Administration Bureau of Danyang City issued a written notice on rejecting the application and decided to not register Hongrun Supermarket's application for modification. Hongrun Supermarket refused to accept the decision and filed a lawsuit with the court, requesting the court to revoke the written notice on rejecting the application for modification and order the Market Supervision and Administration Bureau of Danyang City to register the item under its application. | | 2015年2月，江苏省丹阳市珥陵镇鸿润超市（以下简称鸿润超市）向该市市场监督管理局（以下简称市市场监管局）提交个体工商户变更登记申请书，申请在原营业执照核准的经营范围内增加蔬菜零售项目。2015年2月，该局向鸿润超市出具个体工商户变更登记受理通知书，随后审查材料，赴实地调查核实，认定鸿润超市经营场所距丹阳市珥陵农贸市场不足200米，其申请不符合丹阳市人民政府丹政办发（2012）29号《关于转发市商务局＜丹阳市菜市场建设规范＞的通知》（以下简称29号文）中“菜市场周边200米范围内不得设置与菜市场经营类同的农副产品经销网点”的规定，遂作出了驳回通知书，决定对其变更申请不予登记。鸿润超市不服诉至法院，请求撤销该驳回通知书，判令对其申请事项进行变更登记。 |
| (2) Adjudication | | （二）裁判结果 |
| After a trial of first instance, the People's Court of Danyang City held that: It is provided for in Article 4 of the Regulation on Individual Industrial and Commercial Households that “the state shall apply the principles of equal market access and fair treatment to individual industrial and commercial households. If the scope of business stated in an application for registration of an individual industrial and commercial household does not include any sector prohibited by a law or administrative regulation, the registration organ shall grant the registration according to the law.” In this case, in its application for modification of registration, plaintiff Hongrun Supermarket applied for adding a business item of vegetable retail, which was not a sector prohibited by a law or administrative regulation. Defendant the Market Supervision and Administration Bureau of Danyang City did not register plaintiff's application by applying the provision of No. 29 Document that “no agriculture and sideline products distribution site similar to a vegetable markets may be built within the range of 200 m nearby the vegetable market”; however, such provision was inconsistent with the Specifications of the Ministry of Commerce for the Setting and Management of Standardized Vegetable Markets, did not conform to the provision of item (7) of the Guiding Opinions of the Ministry of Commerce and Other Twelve Departments on Further Strengthening the Building of the Agricultural Products Market System that “such various retailing business as vegetable market, greengrocer, fair-price shop, and community e-commerce store should be actively developed” and violated the aforesaid principles of equal market access and fair treatment to individual industrial and commercial households. It could not serve as the basis for determining the legitimacy of the registration act at issue. Therefore, the People's Court of Danyang City rendered a judgment to revoke the involved notice on rejecting the application for modification and order defendant to register plaintiff's application within 15 workdays after the judgment came into force. After the judgment of first instance was pronounced, neither party appealed and defendant has handled formalities for modification, verification, and registration for plaintiff. | | 丹阳市人民法院一审认为，《个体工商户条例》第四条规定国家对个体工商户实行市场平等准入、公平待遇的原则。申请办理个体工商户登记，申请登记的经营范围不属于法律、行政法规禁止进入的行业的，登记机关应当依法予以登记。本案中，原告鸿润超市申请变更登记增加的经营项目为蔬菜零售，并非法律、行政法规禁止进入的行业。被告市市场监管局适用29号文中“菜市场周边200米范围内不得设置与菜市场经营类同的农副产品经销网点”的规定，对原告的申请不予登记，但该规定与商务部《标准化菜市场设置与管理规范》不一致，与《商务部等13部门关于进一步加强农产品市场体系建设的指导意见》第（七）项“积极发展菜市场、便民菜店、平价商店、社区电商直通车等多种零售业态”不相符，也违反上述市场平等准入、公平待遇的原则，依法不能作为认定被诉登记行为合法的依据。遂判决撤销涉案驳回通知书、被告于判决生效后15个工作日内对原告的申请重新作出登记。一审宣判后，双方当事人均未上诉，被告已为原告重新办理了变更核准登记。 |
| (3) Significance | | （三）典型意义 |
| This is a model case where an administrative organ violated the principle of equal market access and fair treatment to individual industrial and commercial households. Such principle is not only specified in Article 4 of the Regulation on Individual Industrial and Commercial Households, but is reflected in a large number of other laws and regulations and international treaties. To great extent, modern economic operations depend on the market, an “invisible hand,” in playing a decisive role in the allocation of resources. In the process of administration, governments should identify orientations, properly lead, guide, and adjust the market, and avoid various improper interventions and restrictions. In this case, the Market Supervision and Administration Bureau of Danyang City did not support Hongrun Supermarket's application for modifying its business scope in accordance with No. 29 Document. The court rendered a judgment to revoke the administrative action at issue, which has not only safeguarded the lawful rights and interests of operators and reflected equal protection of various market players, but is of positive impacts on properly setting local vegetable markets and facilitating mass production and living. It is worth mentioning that by applying the provisions of Article 64 of the newly amended Administrative Litigation Law, the court explicitly indicated that No. 29 Document was inconsistent with the relevant provisions of the Ministry of Commerce and it also violated the principle of equal market access and fair treatment implemented by the state to individual industrial and commercial households. Therefore, No. 29 Document could not serve as the basis for the legality of the administrative action. The court has effectively implemented the spirit of the amendment to the Administrative Litigation Law, which is of era significance in reviewing “official documents” (regulatory documents). | | 本案是行政机关违反市场平等准入、公平待遇原则的典型案例。该原则不仅《个体工商户条例》第四条作出了明确规定，在其他大量法律法规和国际条约中都有体现。现代经济运行很大程度上靠市场这一“无形之手”发挥资源配置的决定性作用。政府在实施管理过程中，要找准定位，正确引导、指导和调节市场，避免各种不当干预与限制。本案中，市市场监督管理局根据市政府29号文，未支持鸿润超市变更经营范围的申请，法院判决撤销被诉行政行为，不仅维护了经营者的合法权益，体现对不同市场主体的平等保护，同时也对当地合理设置菜市场、方便群众生产生活有着积极影响。值得一提的是，法院适用了新修改的行政诉讼法第六十四条规定，明确指出市政府29号文不仅与商务部有关规定不符，也违反国家对个体工商户实行的市场平等准入、公平待遇的原则，不能作为行政行为合法性依据，切实贯彻了行政诉讼法的修改精神，具有一并审查“红头文件”（规范性文件）的时代意义。 |
| 4. Deqing Moganshan Snakes Industrial Co., Ltd. v. Food and Drug Administration of Zhejiang Province (case about administrative supervision) | | 四、德清莫干山蛇类实业有限公司诉浙江省食品药品监督管理局行政监督案 |
| (1) Basic Facts | | （一）基本案情 |
In October 2013, the Food and Drug Administration of Huzhou City, Zhejiang Province conducted a sampling inspection on a batch lot of “Three Snake Powder” capsules produced by Deqing Moganshan Snakes Industrial Co., Ltd. (hereinafter referred to as “Moganshan Company”). According to the report on inspection of the submitted samples issued by the Food and Drug Inspection Institute of Zhejiang Province, the mercury content was 0.5 mg/kg. After Moganshan Company applied for re-inspection, the re-inspection conclusion of the Center for Disease Control and Prevention of Zhejiang Province showed that the mercury content was 0.45 mg/kg. In accordance with the General Standards for Health (Functional) Foods (GB16740-1997, according to which the amount of harmful metal and hazardous substance in capsule products should be no more than 0.3mg/kg), the Food and Drug Administration of Zhejiang Province (hereinafter referred to as the “FDA of Zhejiang Province”) recognized that the mercury content of the inspected samples exceeded the prescribed standard and they were sub-quality products. In August 2014, the FDA of Zhejiang Province issued the Notification on the Results of Supervision and Sampling Inspection of Health Products and Cosmetics at the Provincial Level (No. 15 [2014], FDA, Zhejiang) to the market supervision administrations of all districted cities and Yiwu City, announced the sub-quality products under the sampling inspection (including the aforesaid capsules), and published them on its website. Moganshan Company alleged that the inspection report was erroneous in the recognition standard, the accredited enterprise standard should apply to the samples, and the announcement of its sub-quality products on the website of the FDA of Zhejiang Province has seriously affected its reputation. Therefore, Moganshan Company filed a lawsuit with the court and required that the announcement on the aforesaid sub-quality products in the sampling inspection in No. 15 [2014] of the FDA of Zhejiang Province should be cancelled.
．．．．．． | | 浙江省湖州市食品药品监督管理局于2013年10月抽检德清莫干山蛇类实业有限公司（以下简称莫干山公司）生产的某批号三蛇粉胶囊。省食品药品检验研究院对送检样品出具的检验报告为汞含量0.5mg/kg，该公司申请复检后省疾病预防控制中心的复检结果为汞含量0.45mg/kg。省食品药品监督管理局（以下称省食药局）依据《保健（功能）食品通用标准》（GB16740-1997，规定胶囊产品中有害金属及有害物质限量应≤0.3mg/kg），认定被检样品汞超标，属不合格产品，并于2014年8月向各设区市、义乌市市场监督管理局下发《关于2013年度省级保健食品化妆品监督抽检结果的通报》（浙食药监稽[2014]15号文），对抽检不合格产品予以通报（含上述胶囊），并在该局网站上予以公布。莫干山公司认为，检测报告在认定标准上存在错误，抽检样品应适用经备案的企业标准，该局在网站上通报该公司产品不合格的行为严重影响其声誉。故诉至法院，要求撤销浙食药监稽（2014）15号文中对其上述产品监督抽检不合格的通报。
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