1, the definition of "gutter oil"
"Waste oil" refers to all kinds of inferior oil in life. Specifically, it can be divided into three categories: one is "edible oil" produced and processed with kitchen waste (kitchen waste) as non-food raw materials, that is, the leftovers of hotels and restaurants (commonly known as swill) or greasy floating objects in sewers are simply processed and refined. The second is "edible oil" produced and processed with waste oil as non-food raw materials, that is, the oil used for fried food can be reused after being used for more than a certain number of times or adding some new oil. The third is the "edible oil" produced and processed by various non-food raw materials such as meat and meat products processing wastes, such as inferior pork, pig offal, pigskin processing and refined oil. "Waste edible oil" is a kind of unsanitary non-edible oil with poor quality, and its peroxide value, acid value and moisture content seriously exceed the standard. For example, the toxicity of aflatoxin is 100 times that of arsenic. Once you eat "gutter oil", it will destroy people's white blood cells and digestive tract mucosa, causing food poisoning and even serious consequences of cancer. Therefore, "gutter oil" is a toxic and harmful non-food raw material that is strictly prohibited in the field of edible oil. The illegal production and sale of "gutter oil", or the production and processing of "gutter oil" into "edible oil", and the sale of oil as edible oil knowing that it is "gutter oil" have serious social harm. Anyone who violates the provisions of the Criminal Law shall be punished as a crime and shall be investigated for criminal responsibility according to law.
2. Definition of the crime of "gutter oil"
The crime of "gutter oil" is not a statutory crime classification stipulated in China's criminal law, but a general term for a class of crimes related to "gutter oil" in theory or concept. At present, Article 1 of the Notice of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Severely Punishing the Crime of "Waste Oil" gives an authoritative summary of the so-called crime of "waste oil", that is, the crime of "waste oil" refers to the production and processing of "edible oil" from non-food raw materials such as kitchen waste, waste oil, all kinds of meat and meat products processing wastes.
3. The choice of charges for the crime of "gutter oil"
According to the specific circumstances of the crime of "gutter oil" violating the criminal law, it should be convicted and sentenced for different crimes. First, because "gutter oil" is a toxic and harmful non-food raw material, anyone who uses "gutter oil" to produce "edible oil", that is, blending "gutter oil" as a toxic and harmful non-food raw material, should be investigated for criminal responsibility for producing toxic harmful food. Whoever knowingly sells "edible oil" produced by using "gutter oil", that is, sells edible oil mixed with toxic and harmful non-food raw material "gutter oil", shall be investigated for criminal responsibility for selling toxic and harmful food. Whoever uses "gutter oil" to produce and sell "edible oil" shall be investigated for criminal responsibility for producing and selling toxic and harmful food.
Secondly, the crime of digging, processing and trafficking gutter oil, or providing loans, funds, account numbers, invoices, certificates and licenses, or providing technology, production, business premises, transportation and storage for others who know or should know that others use gutter oil to produce edible oil or sell edible oil produced by gutter oil.
Third, although it is impossible to find out whether "cooking oil" is produced and processed with "waste oil", if the actor knows that the source of "cooking oil" is suspicious and sells it, it should be dealt with separately: if toxic and harmful components are detected through identification, harmful food will be investigated for criminal responsibility for selling it; If the food does not meet the safety standards, which is enough to cause serious food poisoning accidents or other serious food-borne diseases, criminal responsibility shall be investigated for the crime of selling food that does not meet the safety standards; Whoever counterfeits genuine products, shoddy products, and substandard products as qualified products or counterfeit registered trademarks, which constitutes a crime, shall be investigated for criminal responsibility for the crime of selling fake and inferior products, the crime of counterfeiting registered trademarks and the crime of selling goods with counterfeit registered trademarks.
Fourth, state functionaries who abuse their powers, neglect their duties and bending the law in the edible oil safety supervision and investigation of illegal and criminal activities of "gutter oil", which constitutes a crime, shall be investigated for criminal responsibility in accordance with the relevant provisions of the Criminal Law.
In practice, we should accurately understand the legal provisions and strictly distinguish the boundaries of crimes. The identification of "knowing" should be comprehensively judged by combining subjective and objective factors such as the cognitive ability of criminal suspects and defendants, confessions and excuses of criminal suspects, defendants and their co-defendants, witness testimony, product quality, purchase channels and prices, sales channels and prices. As for the edible oil produced from "gutter oil", it has been sold all the time, and there is no real thing, but there is evidence that it is provided by the network company that is identified as producing and selling toxic harmful food. Therefore, harmful food should be investigated for criminal responsibility for selling toxic and harmful food. In violation of the relevant provisions, digging, processing and transporting "gutter oil" and there is no evidence to prove that it is used to produce "edible oil", it shall be handed over to the administrative department for handling.
4. Thoughts on conviction and sentencing of "gutter oil" crime.
According to the provisions of Article 3 of the Notice on Severely Punishing Illegal Waste Oil Crimes according to Law, the conviction and sentencing of illegal waste oil crimes should accurately grasp the application of the criminal policy of combining leniency with severity in the field of food safety, and fully consider the factors such as the amount of crimes, the subjective malignancy of criminals and their criminal means, the degree of harm of criminal acts to people's life safety and health, the degree of damage to market economic order, and the bad influence. Criminals who have recidivism, criminal record, * * accomplice, ringleader of group crime and other circumstances, as well as criminals who have committed huge crimes, vile circumstances, serious harm and strong reaction from the masses, which have caused heavy losses to the interests of the state and the people, should be severely punished according to law. If the crime is sentenced to death, they should be resolutely sentenced to death according to law. For criminals in the same production and marketing chain, the spirit of severely punishing source crimes and directly profiting criminals is reflected within the statutory punishment range, so as to ensure the overall balance of sentencing among production and marketing links, illegal beneficiaries and subordinate employees. Companies and enterprises that knowingly sell "gutter oil" should strictly investigate the responsibilities of relevant units and directly responsible persons according to law. Criminals with statutory circumstances such as surrender, meritorious service, and accessory can be treated leniently according to law. We must strictly grasp the conditions for applying probation and exemption from criminal punishment. For those who must apply probation according to law, a prohibition order is generally issued at the same time to prohibit them from engaging in activities related to food production and sales during the probation period.