For selling sub-safety standard food, the defendant is sentenced to criminal punishment with ten times punitive damages as incidental civil penalty

The criminal with incidental civil penalty public-interest case of Lu Xdong committing the crime of selling sub-safety standard food

[Core values]

rule of law

safeguard food safety

[Basic Facts]

In 2007, Lu Xdong and his sister Lu Xping opened a frozen food stall, which, since 2010, has been operated by Lu Xdong alone. On August 7, 2018, Lu Xdong applied to Baoting Administration for Market Regulation for business license and food supply certificate to start a Yanyan Cold Store at Team 2, Section 4, Baoting Xinxing Farm, with Lu Xdong in charge of the purchase of goods and business operation. From March 23 to July 9, 2019, Lu Xdong purchased from Haikou X Frozen Food Company Limited a total of 13,405 yuan of sub-safety standard Allana beef flank, French pork trotter, P31 pork tripe and 7470 chicken feet; and from February 14 to August 23, 2019, he purchased from Hainan X Company a total of 30,870 yuan of sub-safety standard Allana beef flank, 3773A chicken feet, 3515B chicken feet and P31 pork tripe. The frozen food above with a total value of 44,275 yuan was all sold out. And Defendant Lu Xdong voluntarily surrendered himself after committing the crime.

The incidental civil public-interest prosecutor, Baoting County People’s Procuratorate, claimed that the act of Yanyan Cold Store run by Lu Xdong selling sub-safety standard frozen food infringed upon the lawful rights and interests of numerous nonspecific consumers, seriously jeopardized the public interests and should bear by law the tort liability of paying ten times punitive damages and making public apology.

[Judgement]

The court holds that Defendant Lu Xdong violated the state food safety management rules, and sold sub-safety standard food, which is sufficient to cause serious food poisoning accidents or other serious foodborne diseases, and his act constitutes a crime of selling sub-safety standard food, and should be punished by law. Defendant Lu Xdong after committing the crime voluntarily surrendered himself, truthfully confessed his crime, and, as his voluntarily pleading guilty, accepting punishment and signing the agreement is an act of surrendering himself, is eligible for lenient punishment by law. Defendant Lu Xdong was earnest to give up his illegal gains of 2,700 yuan, and paid in penalty enforcement deposit of 8,900 yuan, which is a circumstance for lenient punishment. With regard to the incidental civil public-interest litigation, Defendant Lu Xdong as a long-term frozen meat vendor, who knows perfectly well that unquarantined frozen goods are prohibited by the state for production and distribution, and knew perfectly well that his frozen goods did not have any customs declaration forms nor quarantine certificates and were smuggled sub-safety food, purchased and sold such goods despite of all above. His act violates the provisions of the Food Safety Law of the People’s Republic of China, is of high realistic danger, and is sufficient to cause serious food poisoning accidents or other severe foodborne diseases, gravely jeopardizing the lawful rights and interests of numerous consumers, imperiling China’s food safety system, and harming the public interests. The incidental civil public-interest prosecutor requested the court to order Lu Xdong to bear a punitive damages ten times the sold frozen meat, and apologize to the public. The prosecutor’s request is well-grounded in law and should be favored. As Defendant Lu Xdong voluntarily surrendered himself, pleaded guilty and repented his crime, and a reprieve should not cause any danger to the society, a reprieve may be applied.

According to the Criminal Law of the People’s Republic of China, Articles 143, 67 (1), 72, 73 (2 & 3), 52, 53 & 64, the Criminal Procedure Law of the People’s Republic of China, Article 15, the Food Safety Law of the People’s Republic of China, Articles 148 (2), the Interpretations of the Supreme People’s Court the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law on Handling Criminal Cases Jeopardizing Food Safety, Article 1 (2 & 3), the Interpretations of the Supreme People’s Court on Several Issues Concerning the Application of Law on Handling Consumer-Related Civil Public-Interest Cases, Article 13 (1), and the Interpretations of the Supreme People’s Court the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law on Prosecuting in Public-Interest Cases, Article 20, the following first-instance judgement is awarded: (i) Defendant Lu Xdong committed the crime of selling sub-safety standard food, and be sentenced to one year of imprisonment with a reprieve of one year and six month and a fine of 89,000 yuan; (ii) Defendant Lu Xdong be banned from carrying out food production, sale and related activities within the probation period; (iii) the illegal gains of 2,700 yuan that Defendant Lu Xdong has returned be confiscated and turned over to the state treasury; (iv) Defendant Yanyan Cold Store pay over the recompense of 442,750 yuan to the state treasury within ten days after the judgement takes effect; and (v) Lu Xdong, operator of Defendant Yanyan Cold Store, apologize to the public on provincial and higher-level media within ten days after the judgement takes effect.

Yanyan Cold Store refused the incidental civil public-interest part of the judgement and appealed against it. The second-instance court reviewed the case and held that the act of Yanyan Cold Store infringed upon the lawful rights and interests of numerous consumers, and according to the Food Safety Law of the People’s Republic of China, Article 148, the original judgement that Yanyan Cold Store pay ten times of recompense complied with the law. The second-instance court rejected the appeal and sustained the original judgement.

[Significance]

Processing and selling smuggled frozen meat are a serious threat to the society and should be severely punished. Smuggled frozen meat during transportation can hardly be kept in a constantly freezing environment and may be frequently defrosted and frozen again, giving opportunities for bacteria to grow and endangering food safety. Meat products imported from countries and regions where animal epidemic breaks out or cold-chain food from regions with serious covid pandemics will seriously threaten the public health and this type of crimes shall be severely punished.

Punitive damages will deter, coerce, punish and prevent crimes, and the purport is to punish realistic malefactor and deter and prevent any potential ones in the market. The violation of public interests in food safety is the conglomeration of the violation of the individual interests of unspecific consumers, and bears on such public matters as social order, social values and the public expectation of food safety. The punitive damages as a matter of fact plays the role of a substitutive remedy for the damaged public interests. This role is not based on the actual loss of the specific consumers, it serves instead as a deterrence by punishing the illegal act of the wrongdoer. In this case, the court, from the perspective of upholding the public interests, strictly cracked down the criminal act of selling sub-safety standard food, meted out ten times punitive damages on the illegal operator, and safeguarded food safety for consumers.