Viewpoint | Identification and Punishment of "General Accidents" in the Field of Safety Production-From the Perspective of Enterprise's Defense Basis

Published:

2021-12-05

Foreword On June 10, 2021, the 29th meeting of the Standing Committee of the 13th National People's Congress passed the "Decision of the Standing Committee of the National People's Congress on Amending the the People's Republic of China Work Safety Law", and the "the People's Republic of China Work Safety Law" "(Hereinafter referred to as the" Work Safety Law ") has been amended for the third time and will come into force on September 1, 2021. The new "Safety Production Law" has greatly increased the penalties for production safety violations. Under the background of increasingly strict production safety regulations and continuous strengthening of law enforcement, production and business units must not only do daily compliance work, but also have production safety. After the accident, timely disposal and proper response, how to effectively defend against the administrative punishment of the emergency management department, reducing the loss of enterprises is also a problem worthy of attention and concern. The author summarizes and shares the legislative system and practical experience in the field of production safety. Definition and punishment standard of general accident 1. Definition of general accident "General accident" refers to the accident that causes casualties or the lowest direct economic loss in the classification of production safety accidents. Its specific definition can be learned from the legal provisions: According to Article 118 of the "Work Safety Law": "The classification standards for general accidents, major accidents, major accidents, and particularly major accidents of production safety stipulated in this law shall be prescribed by the State Council." That is, the National People's Congress has authorized the State Council to formulate the standard for "general accidents", and the "Safety Production Law" does not specifically divide the standard for accidents. According to Article 3 of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents formulated by the State Council, "General accidents refer to accidents that cause less than 3 deaths, or serious injuries to less than 10 people, or direct economic losses of less than 10 million yuan." To sum up, the specific definition of "general accident" can be summarized as: accidents that cause less than 3 deaths, or less than 10 serious injuries, or direct economic losses of less than 10 million yuan in the production and business activities of production and business units. 2. Penalty standard for general accidents According to the provisions of Article 95 of the "Safety Production Law" (2021 Amendment): "If the main person in charge of the production and business unit fails to perform the safety production management duties stipulated in this law, resulting in a production safety accident, the emergency management department shall follow the following Provisions shall be imposed a fine: (1) In the event of a general accident, a fine of 40% of the previous year's annual income shall be imposed." Article 114 stipulates: "In the event of a production safety accident, the responsible production and business unit shall, in addition to requiring it to bear corresponding compensation and other responsibilities in accordance with the law, be fined by the emergency management department in accordance with the following provisions: (1) General In the event of an accident, a fine of 300,000 yuan to 1 million yuan shall be imposed." According to the above-mentioned legal provisions, it can be known that the administrative punishment of "general accidents" adopts the "double penalty system", that is, the production and business operation units and their main responsible persons are subject to fines, and the amount of fines is relatively large. II Practical Dilemma of General Accident Identification and Punishment 1, the identification and punishment method is simple and crude. In the law enforcement practice of general accident identification and punishment, law enforcement personnel mostly adopt relatively simple and rough punishment methods, that is, as long as they conform to the definition of general accident in form, they will directly identify and apply the punishment standards stipulated in the "safety production law", regardless of whether they can constitute general accidents or whether the fine of administrative punishment is too heavy, however, the punished enterprises often lack professional knowledge in the field of production safety and have no way to protect their rights, so they can only bear huge fines and losses. Examples: ① Company A caused 1 death in the process of production and operation, which formally meets the requirements of "less than 3 deaths". Can it be directly identified as a general accident and be subject to administrative punishment? ② Company A caused 1 serious injury in the process of production and operation, which formally meets the requirements of "less than 10 serious injuries". Can it be directly identified as a general accident and be subject to administrative punishment? ③ Company A caused direct economic losses of 1 million yuan in the process of production and operation, without casualties, and formally met the "direct economic losses of less than 10 million yuan". Can it be directly identified as a general accident and be subject to administrative punishment? ④ A company in the production and operation process caused 1 yuan of direct economic losses, no casualties, formally meet the "10 million yuan of direct economic losses", can it be directly identified as a general accident and administrative punishment? In the law enforcement process of the emergency management department, except for the fourth extreme case, the remaining three cases will generally be investigated and punishment decisions will be made. The reason is that the above three cases meet the definition of "general accident" in form, so punishment is required. This directly leads to the infringed person in the production safety accident to give up the judicial relief channel, report to the emergency management department, take the high fine as the bargaining chip with the production and business operation unit, and obtain the benefit beyond the actual loss. In the face of administrative punishment, enterprises often have no choice but to compromise. 2. The provisions of the lower law are divorced from reality and urgently need to be revised. Article 3 of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents only stipulates the upper limit of the composition of "general accidents", that is, "less than 3 deaths, less than 10 serious injuries, and direct economic losses of less than 10 million yuan", but it does not specify whether general accidents have the lower limit on the statutory constituent elements and the conditions for administrative punishment, as a result, the law enforcement personnel of the emergency management department (the former safety supervision department) impose penalties or obviously excessive administrative penalties on production and business units that do not meet the conditions for administrative penalties. In the field of administrative penalties for general accidents, there are arbitrary penalties and excessive penalties. Law enforcement chaos. III Defense Basis for Enterprises to Deal with General Accident Penalties (Taking Shandong Region as an Example) In view of the above-mentioned administrative punishment of law enforcement chaos, the author through the big data retrieval of the relevant provisions of the general accident punishment, and combined with practical experience for effective analysis, in order to deal with the general accident punishment for enterprises to provide a reasonable basis for rights protection and relief channels: 1. Legal basis for rights protection ① Article 118 of the "the People's Republic of China Safety Production Law" clearly stipulates that the classification standards for general production safety accidents, major accidents, major accidents, and particularly major accidents stipulated in this law shall be prescribed by the State Council. The above-mentioned laws have clearly stipulated that the National People's Congress has authorized the State Council to formulate general accident standards, and the safety production law does not specifically divide accident standards. ② According to Article 3 of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents, accidents are generally divided into the following levels: (4) General accidents refer to deaths of less than 3 people, or serious injuries of less than 10 people, or direct economic losses of less than 10 million yuan. The department of work safety supervision and administration under the State Council may, in conjunction with the relevant departments under the State Council, formulate supplementary provisions on the classification of accidents. According to the provisions of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents, the safety production supervision and management department of the State Council and other relevant departments can formulate supplementary regulations for the classification of accidents. After the author's review, there are currently no other supplementary regulations for the classification of accidents. Provisions, that is, the only basis for the identification of general accidents is Article 3 of the "Regulations on Reporting, Investigation and Handling of Production Safety Accidents. ③ The provisions of Article 14 of the "Regulations on Penalties for Production Safety Accidents": The accident unit shall cause the death of less than 3 people, or serious injuries to more than 3 people and less than 10 people (including acute industrial poisoning, the same below), or 3 million yuan to 10 million yuan. If the general accident with direct economic losses below RMB yuan is responsible, a fine of 200000 yuan to 500000 yuan shall be imposed. ④ "Reply of the General Office of the State Administration of Work Safety on Issues Concerning Administrative Penalties for General Production Safety Accidents" Political and Legal Letter of the General Administration of Work Safety [2014] No. 136: "If a production safety accident causes serious injuries to 1 to 2 people or direct economic losses of less than 3 million yuan, generally no fines will be imposed on the unit where the accident occurred." ⑤ According to the relevant provisions of the "Shandong Province Safety Production Administrative Penalty Discretionary Benchmark (Trial)" issued by the Shandong Provincial Emergency Department, the administrative penalty authority of the emergency management department responsible for general accidents of production and business units is as follows: 2. Ways of relief and defense According to the above provisions, it can be known that the penalty for general accidents has a lower limit, and the penalty for general accidents based on death must meet the legal condition of "death of less than 3 people"; the penalty for general accidents based on serious injuries must meet the legal condition of "more than 3 people and less than 10 people (including acute industrial poisoning)", and there is a lower limit of "more than 3 people"; general accident penalties based on direct economic losses must meet the legal conditions of "3 million yuan to 10 million yuan", and there is a lower limit of "3 million yuan or more". When the safety production accidents in an enterprise only meet the upper limit but not the lower limit, the conditions for administrative punishment are not met, and the emergency management department has no right to punish the enterprise. The above four examples also have corresponding answers here: the first situation should be identified as a general accident and be given administrative punishment; the second and third situations constitute a general accident, but do not meet the conditions for administrative punishment, should not be filed for investigation; the fourth situation should not constitute a general accident and does not meet the conditions for administrative punishment, should not be filed for investigation. 4 Advice from Lawyers 1. With the implementation of the new "Safety Production Law", enterprises (especially construction enterprises) should attach great importance to the compliance of safety production work, strictly implement the safety production standards stipulated by the law, fulfill various safety production obligations, and establish safety The standard system of production prevents the occurrence of production discretionary accidents. If necessary, professional lawyers can be hired to help enterprises establish a compliance system for production safety. 2. Due to the complexity of laws and regulations and local regulations in the field of production safety, the current update of regulations in the field of production safety in my country is also seriously lagging behind. Although the "Production Safety Law" has been newly revised, the "Production Safety Accident Reporting and Investigation and Handling Regulations" And other administrative regulations have not been updated in time, and they have been seriously divorced from reality. It directly causes law enforcement personnel to be at a loss in the process of law enforcement, and can only carry out simple and rough application, resulting in enterprises being wrongly punished or punished too heavily. For the investigation of production safety accidents, professional lawyers should be hired to intervene in the case filing process, participate in the defense and statement procedure, and strive to resolve the administrative punishment at the front end. If the administrative punishment is wrong, administrative litigation should be filed according to law to protect the legitimate rights and interests of enterprises.

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