To increase the food safety crime penalties
Food safety issues are hot issues of NPC&CPPCC. As suggested by Mr. Zhang Zhaoxing, food safety crime penalties should be increased.
According to the investigation results of "Top ten focus issues most concerned by the public in China's all-round well-off process", food safety issues ranked No. 4 in 2010, No.3 in 2011 and No.1 in 2012~2014. Food safety management in China has not been very satisfactory, not only due to the objective factors such as moderate overall level of safety in production of food industry, weaker safety supervision capacity and deficiency in safe and trusted environment, but also due to the factor that "one-vote veto" criminal sanction is not imposed on food safety crimes legally.
In recent years, China has been severely fighting against the illegal crimes in the food safety field to improve the overall situation of food safety to some extent by introducing new department laws, revising criminal law related regulations, introducing related judicial interpretations, establishing public security officer investigation teams for food and drug crimes, and integrating food safety supervision departments.
As mentioned by Mr. Zhang Zhaoxing for the food safety crime applicable laws, the cohesive mechanism of Criminal Law and Food Safety Law is poor; penalty on food safety crimes is not high enough, resulting in low illegal cost; no punishment against qualifications of illegal crime entities is implemented.
Food safety issues are of common concern in the world, and there are good experiences and practices in many countries. Mr. Zhang Zhaoxing said, for example, Standards for Safety of Agricultural Products and Preventive and Control Measures for Food Safety Violations released by Food and Drug Administration on January 4, 2013 even extend the food safety supervision to farmers and manufacturers. Food Safety Law of the United Kingdom is more severe, where a restaurant, once there is something wrong with one dish, might be punished to close down. Generally, those with illegal acts shall be fined ￡5,000 or imprisoned for less than 3 months as appropriate. In France, a store selling expired food shall have its business license revoked.
"Food safety crimes in China, although complete enough from the view of accusation system, are still perfectible; in other words, food safety crimination policies should highlight the crimes." About this problem, Mr. Zhang Zhaoxing has the following ideas:
I. Expand the food safety crime subjects and objects. It is suggested to expand the food safety crime adjustment object and adjustment range in the form of criminal law revision. With respect to the crime subjects, it is suggested to cover the food safety crime subjects to the related personnel in all links from food production to distribution, including processors, packagers, transporters and warehouse keepers, beneficial to fight against the illegal crimes in the food safety field in an all-round way. With respect to the crime objects, it is suggested to expand the food safety content, and to add the content about "production and distribution of food raw materials, food additives or food-related products non-compliant with the safety standards". This will not only include the sub-standard addition of food additives at present, but also abut with the Food Safety Law, convenient for the practical operation of judicial organizations.
II. Add the punishment against qualifications which is not criminal penalty. Learn from the practice in foreign countries to add the punishment for restriction or deprivation of practice qualifications in the criminal law, convict the actors of food safety crimes and include their crime records into the social credit system, and forbid the actors to engage in the food production & operation activities within a certain period of time after completion of imprisonment, so as to thoroughly eliminate or reduce the repeated crimes for production and distribution of counterfeited food products.
III. Revise the penalty affirmation method and amount. It is suggested to change "sales amount" to "goods value" according to the regulations concerning administrative penalty in Article 84 of Food Safety Law when calculating the penalty amount for production and distribution of poisonous and harmful food products. Meanwhile, learn from the practice in the United Kingdom, where those who result in food safety events on purpose shall be punished to go bankrupt.
IV. Include the production and distribution of poisonous and harmful food products into the range of crimes of endangering public security with dangerous method. It is suggested to learn from the "criminalization of drunk driving" and juridical practice experience to increase the extent for measurement of punishment for those who endanger food safety on purpose with serious consequences and extensive ranges, and those who endanger food safety, resulting in adverse effects on the society but their criminal acts are inapplicable to Articles 143 and 144 of Criminal Law , shall be convicted and punished with "crimes of endangering public security with dangerous method".
To normalize the legislation concerning REITs
In the new normal economic state, how to achieve longer-term development of REITs? As suggested by Mr. Zhang Zhaoxing, the legislation concerning REITs should be normalized.
Along with our economic development entering into the "new normal state", the development of REITs, mature high-end real estate financial innovative products in international market, is also accelerated in China accordingly , playing the roles of stabilizer and regulator in the sustainable development of real estate industry and financial industry.
How to achieve longer-term development of REITs in the future, and how to break through the urgent bottlenecks such as lack of legislation concerning REITs, excessive taxation and supervision among several departments? In the opinion of Mr. Zhang Zhaoxing, Real Estate Investment Trust Act should be introduced as soon as possible to normalize the REITs.
It is understood that no specific law for regulating and normalizing the REITs has been enacted in China. In the current legislation, Company Law, Trust Law, Securities Law, Securities Investment Fund Law, Partnership Enterprise Law, Administrative Rules on Trust and Investment Companies, Provisional Rules on Entrusted Funds Management of Trust and Investment Companies and other many laws and regulations cause the establishment and operation of REITs to be faced with many legal bottlenecks.
REITs also face many problems concerning lack of legislation such as trust registration, bonus restriction, information disclosure and bankruptcy remoteness, which require top-level designs on the relevant legal issues.
Meanwhile, the development of REITs in China also bears excessive taxation, and tax preference is essential to promote the prosperity of REITs.
Mr. Zhang Zhaoxing said, for example, in America, Singapore, Hong Kong and other countries and regions, governments would offer the REITs quantities of preferential tax policies in the property acquisition, commercial operation, income distribution and other links to promote the development of REITs. However in China, no preferential tax policies concerning REITs have been introduced under the high commercial real estate vacancy rate at present. High taxation suppresses the commercial real estate rental yield, reduces the participation enthusiasm of investors, and seriously constrains the development of REITs.
In addition, the establishment and operation of REITs in China involve the responsibilities of ministries and commissions, inevitably resulting in conflict of rights and responsibilities under the multi-divisional supervision mechanism. Therefore, it is necessary to determine the jurisdiction of the departments concerned over REITs, and to establish the specialized supervision coordination mechanism.
In view of the dilemmas for the development of REITs at present, as suggested by Mr. Zhang Zhaoxing, the legal issues involving the establishment and operation of domestic REITs should be normalized:
Firstly, guide the establishment and operation of REITs in a normalized manner. Real Estate Investment Trust Fund Act may refer to the instances of legislation in foreign countries, with unified stipulations on the legal position, establishment condition, property estimation, investment requirement, bonus proportion, rights and responsibilities of rights, information disclosure, tax preference and supervision coordination of REITs carriers. The main contents may include: limiting the investment field and borrowing rate of REITs, limited to participation in the real estate development beyond the earlier period to avoid any operation risk; limiting the regulations concerning the listing of REITs, and stipulating that the information related to the assets under the management of REITs should be disclosed in detail in a timely manner; legal liability affirmation, where the rights and obligations of investors during the investment and during the post-investment operation and their corresponding legal liabilities to be assumed should be identified.
Secondly, stipulate specialized tax preference for REITs. Preferential tax policy is the fundamental driving force for REITs to achieve prosperous development in foreign countries. Mr. Zhang Zhaoxing said, in America, according to the Internal Revenue Code, REITs compliant with legal requirements shall only pay the corporate income tax on the undistributed income after distributing 90% of the pre-tax income to the shareholders. According to the tax statutory principle, in addition to the current tax collection and management laws and regulations, preference measures against the taxes involving the establishment and operation of REITs may be stipulated in the Real Estate Investment Trust Fund Act to avoid double taxation.
Thirdly, coordinate the supervision among several departments. Supervision responsibilities and supervision scopes of related ministries and commissions such as People's Bank of China, China Banking Regulatory Commission (CBRC), China Securities Regulatory Commission (CSRC), Ministry of Housing and Urban-Rural Development (MOHURD), Ministry of Finance and State Administration of Taxation involving the REITs may be stipulated uniformly in the general provisions of Real Estate Investment Trust Fund Act to determine the jurisdiction of the departments concerned and to avoid responsibility overlapping and function conflict.
In addition, in the opinion of Mr. Zhang Zhaoxing, specifically, considering the complexity and timeliness of legislation, before NPC Standing Committee enacts the Real Estate Investment Trust Fund Act, the State Council may enact the related administrative regulations or the departments concerned may jointly enact rules to supervise the legal issues involving REITs and to break through the bottlenecks for the development of REITs at present, injecting new vitality to the development of real estate industry and financial industry.
To enact criminal law for attacking police acts
The police, with higher occupational risk, shoulders the arduous task to maintain the social security order. If the personal safety and occupational authority cannot be guaranteed in the law-enforcing environment, it will certainly seriously affect the efficient performance of police responsibilities. Therefore, it is necessary and urgent to enact criminal law for attacking police acts. As suggested by Mr. Zhang Zhaoxing, criminal law for attacking police acts should be enacted.
Mr. Zhang Zhaoxing said, due to the specificity of the occupation of police, the personal dangerousness of police in work is far higher than that of ordinary person, but police cannot obtain special legal protection. In recent years, among the police throughout the country, more than four hundred persons lose their lives and three or four thousand persons are injured every year in average; police is a team with the maximum sacrifice in the peace time. Attacking police acts not only seriously harm the physical health of people's police, but also challenge the law-enforcing authority of police, and even defile and infringe the dignity of national laws.
Mr. Zhang Zhaoxing said, the hazards of attacking police acts include: causing adverse impact on the society, and easily having the attacking police acts caught in the vicious circle of "occurrence – impact – reoccurrence"; most of the attacking police acts at present not constituting "crime of disrupting public service", but punished as administrative cases, leaving criminal legislation protection in "legal vacuum"; attacking police acts constituting "crime of disrupting public service", with "abnormally weak" criminal punishment.
It is understood that the legislation for attacking police acts in various countries can be generally divided into several different types: independent "crime of attacking policy"; including the acts of threatening, assaulting and harming police into the crime of "resisting public servant", with different types as the cases may be: including the acts of assaulting police in general cases into the "crime of disrupting public service", and defining the crime of attacking policy that results in injury or death as the "crime of aggregated consequential injury" or "crime of aggregated consequential manslaughter".
Mr. Zhang Zhaoxing said, at present in China, settlement of attacking police issues mainly depends on administrative law rather than criminal law, which has certain problems in the protection grade and effect, not reflecting the social harmfulness of attacking police acts.
"Attacking police criminalization can strengthen the police personal safety protection legally, and more importantly, can guarantee the smooth police service execution, and guarantee the smooth national public power implementation. " As motioned by Mr. Zhang Zhaoxing, enactment of criminal law for attacking police acts is of significance:
I. Help recover the public legal order and maintain the legal sanctity. Police service is to execute the laws under the order of the laws, and attacking police criminalization to protect the law enforcement of policy is not only to maintain the policy, but also to maintain the dignity of national laws, which is inevitable requirement for recovering the public legal order.
II. Help establish the policy authority and maintain the public interest. Attacking police acts will not only harm the people's police, but also harm the public interest behind law enforcement. If no severe punishment is imposed on such acts, police will certainly lose the powerful position as subject of law enforcement gradually, and then lose its function effect of maintaining the social public order, finally resulting in immeasurable damage to the public interest of the entire society.
III. Help protect the special occupation property of police. Police power is a coercive power for sovereign state to maintain the national safety and social public order, and to prevent, suppress and punish the illegal criminal activities pursuant to the law. Resistance to the legal enforcement of police equals to resistance to the coercive power of the state. Meanwhile, when the state uses the coercive power – police, generally, certain act has caused serious effects on or potential threats to the social order, and at the moment, the harmfulness of such disrupting act is much more serious than that of the act of disrupting ordinary public service. Therefore, in various countries around the world, the punishment against resistance to the law enforcement of police is severer than that against resistance to the law enforcement of ordinary public servants.
In reference to the legislation experience of foreign countries, as suggested by Mr. Zhang Zhaoxing, the "crime of attacking police" should be added in Chapter 6 “Crimes of Disturbing Social Management Order" in the specific provisions of Criminal Law. The accusation and legal penalty of this crime may be defined as follows: "those attacking the people's police in the form of violence, retaliating the people's police and their family members and hindering the people's police to fulfill the legal functions but not causing injury to the people's police shall be sentenced to imprisonment for less than three years, public surveillance or criminal detention; those causing injury in severe cases to the people's police shall be sentenced to imprisonment for more than three years but less than ten years; those causing serious injury or death to the people's police or their family members shall be sentenced to imprisonment for more than ten years, life imprisonment or death penalty". In addition, it is suggested to revise the People's Police Act and the Security Administration Punishment Act, specifying the punishment on the attacking police acts not constituting crimes, to link up with the Criminal Law and to increase the punishment on the mild attacking police acts.
