英文摘要 |
The penalty levels under Article 44, Paragraph 1of the Act Governing Food Safety and Sanitation have been raised to amaximum of NT$200 million since December 10, 2014. To allow apenalty amount to reach the ceiling, which has surged after the amendment, and to accommodate the expanded range of penalty as aresult of the amendment, the Ministry of Health and Welfare promulgated and implemented on May 13, 2016 the Penal Standard for Article 44, Paragraph 1of the Act Governing Food Safety and Sanitation, in which the product of the“basic amount”and“each weighted coefficient”set forth in the schedules is designed as the general penal basis for calculating the penalty amount. After reviewing the Penal Standard at Issue, the author believes that the calculation method for the ultimate amount as depicted in the penalty calculation structure violates the objectives of the authorization under Article 44, Paragraph 1of the Act. In addition: 1. It fails to impose different penalties for willful or negligent violation of Article 8, Paragraphs 1and 2, and the hazard level of the heath impairing substances depends entirely on carcinogenicity, resulting in legal violation due to discretionary indolence. 2. In addition, the setup of basic penalties and the arrangements of weighted coefficients for objective severity in various schedules constitute discretionary abuse in violation of the principle that the punishment should be commensurate with the liability; and the financial strength of food operators is used indiscriminately to determine whether any weighting will be applied in violation of Article 18, Paragraph 1of the Administrative Penalty Act and of the principle of improper connection. 3. Moreover, the provision of Article 44, Paragraph 1of the Act does not authorize the competent authority to impose apenalty upon each occurrence. However, the“number of times penalties are imposed in ayear”is relied on as the basis for determining the number of acts for the basic penalty amount in each schedule. In addition, if one act is subject to ideal concurrence for violating different administrative laws and regulations at the same time and each schedule fails to impose penalties based on the maximum statutory penal amount when aweighted factor is applied to such act, this violates the method for determining the number of acts subject to administrative penalties and the concurrence rule. 4. Finally, the Penal Standard at Issue arrive at the financial weighted coefficient based on the authorized capital of the actor on the ground that sales information cannot be obtained. This is tantamount to the exemption of ex officio investigation. Therefore, to ensure that the Penal Standard at Issue meets administrative law rules and principles, competent authorities should give up the idea of applying amathematic formula to multiply abasic penalty amount with all kinds of coefficient. Instead, it is necessary to adjust the weighted coefficients that do not meet the proportionality requirement and tip the balance of punishment and liability in the weighting facts enumerated in each schedule. In addition, in reference to the Law on Administrative Offenses of Germany, the factor of an actor’s economic strength can not be considered primarily along with other weighting facts as consideration factors. Finally, different degrees of penalty should be imposed for legal violations arising from an actor’s subjective willfulness and negligence under Schedule 1and Schedule 2. Moreover, the two weighting facts―“factory illegality weighting”and“illegal items tested and found to contain pesticides and medicine for animals which are prohibited from use pursuant to announcements of agricultural authorities”―should be removed to prevent repetitive inclusion in the scope of assessment of other administrative obligations which have been excluded pursuant to the concurrence rule. |