Contribution 1- 13 13

Original source China soft science

Original name Beijing

The original issue number was 1999 12.

The original page number is 24 ~ 26.

Classification number F52

Foreign trade economy and international trade.

Copy issue number 200003

On the new system of "three inspections in one" and the unified legislation of "three inspections"

Author Chen Dawen/Xiong

Author brief introduction Chen Dawen, Xiong, Jianghan Petroleum Institute, Jingzhou, Hubei, 434 102.

With the establishment of the "three inspections" system, the national entry-exit inspection and quarantine department has become the administrative law enforcement agency in charge of entry-exit health quarantine, animal and plant quarantine and commodity inspection. This unification of law enforcement subjects urgently requires strengthening legislative work, standardizing the activities of "three investigations" and ensuring the competent departments to administer according to law. At the same time, the establishment of the "three-in-one" system also marks a substantial and gratifying step in establishing a dynamic, scientific and efficient entry-exit inspection and quarantine system that is compatible with the socialist market economy and consistent with international practices. On the basis of studying the profound historical origin and important practical significance of "three inspections in one", this paper emphatically points out the defects of China's current legislation on "three inspections" and the possibility and necessity of unified legislation on "three inspections", and advocates the formulation of the People's Republic of China (PRC) Entry-Exit Inspection and Quarantine Law.

Keywords Inspection and Quarantine/Legislation/Mode

Upper guide bearing

According to the institutional reform plan of the State Council, the former State Import and Export Commodity Inspection Bureau, the former Health and Quarantine Bureau of the Ministry of Health and the former Animal and Plant Quarantine Bureau of the Ministry of Agriculture jointly established the National Entry-Exit Inspection and Quarantine Bureau, which is managed by the General Administration of Customs. This indicates that China has taken a substantial and gratifying step in establishing a dynamic, scientific and efficient new entry-exit inspection and quarantine system in line with the socialist market economy and international practices. However, it must be clear that "three inspections in one" should not be regarded as a simple addition of work, but an efficient, coordinated and standardized inspection and quarantine administrative law enforcement management system should be established in the reform. In the process of establishing this management system, we need to strengthen theoretical research. This paper only discusses some problems in the legislation of three inspections in order to attract the attention of relevant departments.

First of all, "three inspections in one" not only has its profound historical origin, but also has its very important practical significance.

Looking back at the historical evolution of China's "three inspections", we can see that the situation that import and export commodities were inspected and quarantined by only one institution lasted for 35 years. From 65438 to 0929, when the old China government set up the commodity inspection department, the quality inspection, health quarantine and animal and plant quarantine of import and export commodities were always undertaken by the department. At that time, the health and quarantine department was only responsible for the quarantine of entry-exit personnel, and animal and plant inspection was only a business office of the commodity inspection department. It can be seen that in history, commodity inspection, animal and plant inspection and health inspection are inseparable, and the three inspections are one. 1964 animal and plant quarantine was separated from commodity inspection and placed under the jurisdiction of the Ministry of Agriculture. Later, according to the requirements of the state to adjust the management system of imported food hygiene supervision and inspection, the health inspection department began to exercise the right of imported food hygiene supervision and inspection from 1990 and was placed under the jurisdiction of the Ministry of Health. In this way, since the separation of the three inspections, the phenomenon of cross-repeated inspection and cross-wrangling caused by the "three inspections" has intensified. In the end, there will inevitably be too many restrictions on port operation and import and export trade, which will greatly weaken the development of China's port capacity, directly affect China's investment environment and the sustainable development of foreign trade, hinder China's strategy of "economic and trade power" and hinder the process of China's accession to the WTO. In order to complete the historical task of changing the mode of economic growth from extensive to intensive, it is undoubtedly of great practical significance to take "three inspections in one" as the top priority in reforming the management system of health inspection, animal and plant inspection and commodity inspection.

First, the "three inspections in one" is conducive to eliminating a series of disadvantages brought by multiple ports, such as repeated management, repeated inspection and quarantine, repeated charges, low customs clearance efficiency and heavy burden on enterprises. , so that the work rules of "one inspection, one sampling, one inspection and quarantine, one sanitation and disinfection, one charge, one certification and release" (that is, "six ones") have been established.

Second, the "three inspections in one" is more convenient to fulfill and realize the unified will and sovereignty of the country, and it is also convenient for the unified management of the State Council and the supervision of local governments; "Integration of three inspections" can transform the existing external contradictions between the central and local governments and departments into the coordination of different division of labor within a unit, reduce or solve the conflicts of interests between departments from the root, and help to turn several stakeholders into one.

Third, "three inspections in one" is conducive to reducing the financial burden. In the past, the "three inspections" were all self-contained, and each system needed national and local investment. Therefore, there are repeated construction problems of "big and complete" and "small and complete" whether it is to establish institutions, equip personnel or equip inspection and quarantine instruments and equipment. After the "three inspections in one", the waste of manpower, financial resources and material resources caused by this repeated construction can be solved. This facilitates the technical exchange activities with international inspection and quarantine counterparts, accelerates the introduction and absorption of international advanced management experience and testing technology achievements, and makes it possible to improve its competitiveness quickly in a short time.

It can be seen that "three inspections in one" fully meets the modernization requirements of the development of China's socialist market economy and the spirit of deepening reform and opening up, which is conducive to complementing each other's advantages, improving efficiency and promoting the healthy development of China's inspection and quarantine undertakings.

Two, the current "three inspections" legislation can not meet the requirements of the new system, and needs to be improved.

The existing laws regulating the administrative relations of entry-exit inspection and quarantine in China mainly include the Frontier Health and Quarantine Law of People's Republic of China (PRC) (hereinafter referred to as the Health Inspection Law) promulgated by 1986 and the Import and Export Commodity Inspection Law of People's Republic of China (PRC) (hereinafter referred to as the Commodity Inspection Law) promulgated by 1965438+. These laws were drafted by the Ministry of Health, the Ministry of Agriculture and the State Administration for Commodity Inspection from 1986 to 1995, and passed by the National People's Congress Standing Committee (NPCSC). Due to the different political and economic background of each law and the different departments responsible for drafting, internal and external contradictions or disharmony are inevitable, which makes it increasingly unable to meet the requirements of the new system:

First, there are many inconsistencies between the current "three inspections" legislation and the "People's Republic of China (PRC) Criminal Law" and other related laws. After the promulgation and implementation of the "Three Inspections" law, 1997 has made great changes to the criminal law, and the provisions of the "Three Inspections" law on criminal responsibility correspond to those of the criminal law promulgated by 1979. Article 26 of the Commodity Inspection Law stipulates that if dereliction of duty constitutes a crime, the person directly responsible shall be investigated for criminal responsibility according to Article 18 1 of the Criminal Law, while Article 397 of the current Criminal Law stipulates the crime of dereliction of duty. Similarly, Article 167 of the Criminal Law stipulated in Article 27 of the Commodity Inspection Law should be changed to Article 280 of the Criminal Law. The provisions on criminal responsibility in Animal Inspection Law, Hygiene Inspection Law and Food Hygiene Law are similar to those in the corresponding criminal law. This contradiction in the corresponding relationship between legal provisions should also be solved through legislative activities.

Second, the current "three inspections" legislation stipulates that the national entry-exit inspection and quarantine functions are exercised by multiple responsible persons, and even one thing is handled by two departments. According to the Animal Inspection Law, the quarantine of export trade animal products is the responsibility of the inspection department designated by the State Council, and the quarantine of import trade animal products is the responsibility of the animal inspection department. The Food Hygiene Law stipulates that the inspection and supervision of exported food shall be the responsibility of the commodity inspection department, and the inspection and supervision of imported food shall be the responsibility of the health and epidemic prevention department. These regulations not only divide the management functions, but also violate the management law.

Third, the current "three inspections" legislation is also inconsistent with relevant international practices. According to international practice, the quarantine organ of the importing country has the right to examine and register the origin, processing plants, import production and processing plants and storage and transportation departments of the exporting country, and issue licenses to those who are qualified. However, China's laws do not stipulate a perfect quarantine permit system. According to international practice, every country has the right to legislate according to its own situation and impose compulsory quarantine on imported animals and plants or their products through administrative or technical measures. However, although Article 30 of the Animal Inspection Law stipulates the declaration, it lacks operational norms, so it is impossible to conduct a comprehensive quarantine of animals, plants and their products in the luggage of inbound passengers, and it is also impossible to investigate the legal responsibility of violators. The concepts of "epidemic area", "non-epidemic area" and "soil" are not accurately defined in the "three inspections" law, and it is difficult to accurately grasp the quarantine examination and approval according to international practice.

Fourth, there are great differences in the provisions of the current "three inspections" legislation on administrative reconsideration procedures. The commodity inspection law stipulates that if a party refuses to accept the punishment decision of the commodity inspection authorities and brings an administrative lawsuit, it must follow the principle of first reconsideration and then administration, that is, apply for administrative reconsideration first, and only if he refuses to accept the reconsideration decision can he bring a lawsuit to the people's court. The Animal Inspection Law stipulates the principle of reconsideration and selection. If a party refuses to accept the punishment decision of the animal inspection agency, it may apply for administrative reconsideration or bring a lawsuit directly to the people's court. "Health Supervision Law" has no provisions on administrative reconsideration procedures. If a party refuses to accept the punishment of the frontier health and quarantine organ, he may bring a lawsuit to the local people's court. The provisions of the Commodity Inspection Law and the Animal Inspection Law on the time limit for applying for reconsideration, making reconsideration decisions and bringing a lawsuit are also quite inconsistent. This legal provision not only affects the fairness of the law, but also makes it difficult for law enforcement departments to operate under the "three investigations" system.

In a word, the current legislation of "three inspections" is not only contradictory, but also incompatible with the criminal law and other related laws and international practices, which can no longer meet the requirements of the new system of "three inspections in one" and needs to be improved urgently.

Three, the "three inspections in one" system, "three inspections" unified legislation is not only possible, but also necessary.

The system of "three inspections in one" was established according to the Provisions on the Function Allocation, Internal Organization and Staffing of the State Entry-Exit Inspection and Quarantine Bureau approved by the State Council (Guo Ban Fa [1998] 102, hereinafter referred to as the "Regulations"). Under the "three inspections in one" system, the national entry-exit inspection and quarantine department uniformly exercises the functions of entry-exit health inspection, animal inspection and commodity inspection, and becomes the unified law enforcement subject of the Health Inspection Law, the Animal Inspection Law and the Commodity Inspection Law (hereinafter referred to as the "three inspections" law). The unification of law enforcement subjects has created favorable conditions for the integration and reorganization of relevant institutions and their functions, the rational allocation of human, material and technical resources, the reduction of waste caused by repeated investment, the strengthening of international technical exchanges and cooperation, and the improvement of management efficiency and competitiveness. It also overcomes the limitation of separate legislation on multi-head management, and the unified legislation of "three inspections" brings a rare opportunity, which not only makes it possible to formulate the Law of People's Republic of China (PRC) on Entry-Exit Inspection and Quarantine.

First, the unified legislation of "three inspections" is the need to further establish the legal status of the national entry-exit inspection and quarantine department. As a result of the reform, the system of "three inspections in one" has been based on laws and regulations, but it has not been confirmed by special national laws. The current "three inspections" law stipulates that the health administrative department, the agricultural administrative department and the import and export commodity inspection department in the State Council are responsible for health inspection, animal inspection and commodity inspection respectively, but it has not been abolished. This conflict between legislation and system needs to be eliminated urgently, otherwise, the current legislation will become an obstacle to the smooth operation of the "three inspections in one" system. In order to eliminate this conflict, it must be clearly stipulated in the new law that the State Council should set up an entry-exit inspection and quarantine department (hereinafter referred to as the national inspection and quarantine department) to be in charge of entry-exit health and quarantine, animal and plant quarantine and commodity inspection throughout the country.

Second, unifying the legislation of "three inspections" is the need for the national inspection and quarantine institutions to change their functions. In order to ensure that the new inspection and quarantine system adapts to the socialist market economy and is in line with international standards, it is necessary to hand over those specific businesses with strong professionalism to institutions or enterprises in accordance with the principle of separating government from enterprises and separating government from business. This will not only free the inspection and quarantine institutions from specific daily work, but also concentrate on strengthening their administrative law enforcement and supervision functions. The functions that the national inspection and quarantine department must change mainly include: technical work such as laboratory inspection and quarantine, isolation and quarantine, and functions such as research, consultation and risk analysis related to entry-exit inspection and quarantine business and technology; To recognize the functions of training, examination and laboratory qualification evaluation of inspection technicians; Functions of health examination and vaccination; Research and formulation of technical standards, technical development, promotion and service functions, as well as operation, maintenance and application development of computer information systems; Non-statutory inspection and quarantine, appraisal work, entrusted inspection and appraisal work, foreign-related assets evaluation and other functions.

These functions, which need to be changed, all belong to the responsibilities of the "three inspections" institutions stipulated in the current "three inspections" law and related laws. If we don't modify the relevant provisions of the existing laws and separate these functions in the new unified legislation, we can't realize the transformation of functions. Legally speaking, the failure of state administrative organs to perform their statutory duties is dereliction of duty and must bear legal responsibility. It is ultra vires and invalid for enterprises and institutions to exercise administrative functions without legal authorization, and they should also bear legal responsibilities. Therefore, in order to ensure the smooth transformation of the functions of the national inspection and quarantine departments, and at the same time ensure that relevant enterprises and institutions handle entrusted business according to law. In the unified "three inspections" legislation, the responsibilities of the national inspection and quarantine departments should be clearly defined, and the establishment conditions and specific business scope of enterprises and institutions entrusted with inspection and quarantine services should be clearly defined.

Thirdly, the unified legislation of "three inspections" is the need for the national entry-exit inspection and quarantine department to adjust its institutional setup. The Commodity Inspection Law stipulates that the import and export commodity inspection agency established by the State Commodity Inspection Bureau shall administer the inspection of import and export commodities in the areas under its jurisdiction. According to the provisions of the Commodity Inspection Law, the State Commodity Inspection Bureau has set up commodity inspection agencies in all provinces, autonomous regions, municipalities directly under the Central Government, special economic zones, key ports and import and export commodity distribution centers. The Health Inspection Law and the Animal Inspection Law stipulate the establishment of health inspection institutions and animal inspection institutions at ports. According to the provisions of the Animal Inspection Law and the Health Inspection Law, the relevant departments have set up port health inspection institutions and animal inspection institutions in ports, airports, land borders and rivers where international navigation takes place. It can be seen that the commodity inspection authorities have set up commodity inspection authorities not only in provincial administrative regions, but also in special economic zones and key ports, while the health inspection and animal inspection agencies have only set up quarantine institutions at ports. Therefore, there are only commodity inspection agencies in inland areas without ports, and there are no health inspection and dynamic inspection agencies. Due to the different institutions in the State Council and the different standards for the establishment of institutions, the "three inspections" institutions in the same area not only have different subordinate relations, but also have great differences in the level setting and internal organization setting.

After the "three inspections in one", it is necessary to adjust and reorganize the institutions, adapt to the development of China's export-oriented economy, follow international practices, and confirm the principle of setting up institutions mainly according to administrative regions in legislation. Setting up inspection and quarantine institutions according to administrative regions is conducive to strengthening contact and cooperation with local party and government organs, reducing port pressure and speeding up port inspection and release. At the same time, we can also rely on commodity inspection agencies mainly set up by administrative regions to reduce investment in fixed assets and reduce waste caused by repeated construction. Therefore, it must be clearly stipulated in the new law that the state inspection and quarantine department can set up inspection and quarantine institutions according to the administrative areas as needed to manage the entry-exit inspection and quarantine work in the areas under its jurisdiction according to law. This provision not only establishes the principle of setting up institutions according to administrative regions, but also has certain flexibility. Where there are few entry-exit inspection and quarantine services in the Mainland, inspection and quarantine institutions may not be set up temporarily if there is no "need", and county (city) may not set up graded inspection and quarantine institutions if there is no "need".

In addition, the formulation of a unified "three inspections" law is also the need to confirm and improve the internationally accepted quality licensing system, product certification system, health registration system and customs clearance documents, and also the need to fulfill the functions entrusted by the national health department, agricultural department and foreign trade department according to law. Due to the lack of clear and perfect provisions on these access systems and entrusted functions in the current "three inspections" law, it is not conducive to giving full play to the due effectiveness of these systems, and it is also not conducive to the state inspection and quarantine departments to perform entrusted functions according to law.

4. Formulating People's Republic of China (PRC) Entry-Exit Inspection and Quarantine Law is the best choice for legislative mode.

There are two legislative models for perfecting the legislation of "three inspections": one is to modify the relevant provisions of the existing health inspection law, animal inspection law, commodity inspection law and food hygiene law respectively, eliminate their contradictions, and solve the problems of coordination with criminal law and other related laws and integration with international practices; Second, on the basis of abolishing the current "three inspection" law and amending the Food Hygiene Law, a unified "People's Republic of China (PRC) Entry-Exit Inspection and Quarantine Law" was formulated, which concentrated the legal norms regulating the administrative relationship between entry-exit health and quarantine, animal and plant quarantine and commodity inspection in one law. We advocate the second legislative model. The main reasons are:

First, from the legal point of view, the legal norms regulating the same social relations should be concentrated in one law as much as possible. In this way, unnecessary troubles and inevitable contradictions brought about by the adjustment of many laws in the same social relationship can be reduced. National entry-exit health quarantine, animal and plant quarantine and commodity inspection are all functional activities that embody national sovereignty and safeguard national interests. The social relations generated by the national inspection and quarantine institutions in performing these functions are completely the same in nature. It is legal to regulate social relations in the process of entry-exit inspection and quarantine with a unified law.

Second, from the legislative technology, it is not appropriate to legislate separately if there are unified legislative conditions. In the past, the main reason why China adopted the legislative model of "three inspections" was the multi-head management of "three inspections", and the starting point and development of "three inspections" were very uneven. According to the legislative guiding ideology of "one is mature and one is promulgated", it is customary for the competent department of this kind of professional law to complete the legislative drafting task, and then submit it to the National People's Congress Standing Committee (NPCSC) for deliberation and approval in the name of the State Council. In this way, it is difficult to avoid separate legislation of "three inspections". Now, the system of "three inspections in one" has been established, and the conditions for formulating a unified "three inspections" law are ripe.

Third, from the demand of law enforcement subjects, a unified law enforcement subject needs a unified law enforcement basis. If the existing health inspection law, animal inspection law and commodity inspection law are unified into one law, it will be very beneficial to facilitate law enforcement and improve the efficiency and level of law enforcement.

In addition, judging from the cost of legislation, it takes more manpower, material resources and time to substantially amend three or four laws than to enact a new one. In other words, the cost of revising the current "three inspections" law is higher than that of formulating a unified "three inspections" law. Therefore, it is suggested that the relevant departments should carry out the creation of People's Republic of China (PRC) Entry-Exit Inspection and Quarantine Law as soon as possible to meet the needs of the new system of "three inspections in one" and give full play to the due role of this law in promoting foreign trade and economic and technological cooperation.