Food and Drug Administration: Flight Inspection and Evidence Collection, WeChat Group Chat is also Evidence


Release time:

2017-12-15

"You have the right to remain silent, but every word you say and every circle of friends you publish will become evidence for flight inspection and law enforcement".

Of course, in the face of flight inspection, you can not remain silent.

Flight inspection law enforcement evidence, there are rules to follow

On December 7, the State Food and Drug Administration issued a notice on the "Draft of Evidence for Food and Drug Supervision and Law Enforcement" (hereinafter referred to as the "Evidence Rules") for public comments.

The "Rules of Evidence" pointed out that the evidence for food and drug supervision and law enforcement mainly includes: documentary evidence, material evidence, audio-visual materials, electronic data, witness testimony, statements of the parties, inspection reports, identification opinions, appraisal opinions, and on-site inspection transcripts.

The first article of the general provisions of the document mentions that the purpose of the "Rules of Evidence" is to regulate the application of law enforcement evidence and protect the legitimate rights and interests of citizens, legal persons or other organizations.

Although it is a rule for all food and drug supervision and law enforcement personnel, it can be regarded as a restriction on the supervision behavior of law enforcement personnel in flight inspection by the General Administration. At the same time, it also reminds drug production and operation enterprises that there are rules to follow in the face of the evidence listed by law enforcement personnel during flight inspection. Don't wait until you're inspected and sealed, and you're still confused and crying for injustice. It's no use.

Cut off the existence of related households, WeChat group chat is also evidence

Judging from the "basic requirements for evidence collection" in the "Rules of Evidence", both parties involved in the flight inspection process (law enforcement personnel and corporate personnel) have clear requirements.

For example, law enforcement officers should take the initiative to show their law enforcement certificates when collecting evidence; inform the administrative counterpart (the object under inspection, including enterprise personnel including enterprise legal persons) that they should cooperate with the investigation in accordance with the law, fail to truthfully provide evidence, testimony and perjury, or forge, conceal, destroy evidence, or hinder the investigation, shall bear legal responsibility.

In addition, cut off the existence of the special relationship chain of "related households. When a law enforcement officer has a direct interest in the party or the object of investigation, he shall take the initiative to withdraw.

The point of using the "statement of the parties" as evidence for supervising law enforcement can be described as a full film clip, that is, a sense of sight.

It means that when law enforcement officers ask parties, witnesses or other administrative counterparts, they should record the investigation records and statements of defense. If there is any change in the record, it shall be confirmed by the fingerprint of the person under investigation and the law enforcement officer shall sign it.

The on-site inspection record shall be signed and confirmed by the law enforcement officer, the person being inspected or the witness. If the inspected person refuses to be present or signs for confirmation, and the witness cannot be found, it shall be indicated in detail on the record, and signed and confirmed by two or more law enforcement officers, and the whole process shall be recorded through on-site audio and video recording.

It is worth noting that in the collection of "electronic data" in Section 5 of the "Rules of Evidence", information published on web pages, blogs, microblogs, circle of friends, post bars, web disks and other network platforms, as well as instant messaging, messaging groups, etc. Communication information of network application services is included in electronic data evidence.

In other words, Weibo, friends circle news, as well as WeChat group, qq group news, etc., as long as they reflect the relevant production, operation, and use of the news, are all evidence during the flight inspection.

It can be simply and roughly considered that for pharmaceutical companies, if they want to publish marketing messages in the customer WeChat group, they must pay attention to whether it involves violations of the Drug Advertising Law. For example, exaggerating propaganda, advocating drug effects, etc;

In addition, once there is a problem with the drug, consumers complain on Weibo or in the circle of friends, which can also be used as electronic evidence during the flight inspection and law enforcement. Of course, this "simple and crude" statement is only a family statement for reference.

Evidence of different effectiveness

In addition, in terms of the proof effect of evidence, the proof effect of several evidences proving the same fact can be determined according to the following circumstances:

(I) official documents produced by state organs and other functional departments according to law are superior to other documentary evidence;

(II) material evidence, inspection reports, appraisal opinions, on-site transcripts, inquest transcripts, archival materials and notarized or registered documentary evidence are superior to other documentary evidence, audio-visual materials and witness testimony;

(III) the original, the original is better than the copy, the copy;

(IV) the evidence on which preservation measures have been taken is superior to the evidence on which preservation measures should be taken but have not been taken in a timely manner;

(V) original evidence is better than incoming evidence;

(VI) the testimony of other witnesses is superior to the testimony in favor of the party provided by witnesses who are related or otherwise closely related to the party;

(VII) the testimony of witnesses testifying in person is better than that of witnesses not testifying in person;

(VIII) several different kinds of consistent evidence is better than an isolated evidence;

The evidence collected by the (IX) through the supervision and inspection not informed in advance or not expected by the administrative counterpart is better than that collected by the supervision and inspection that the administrative counterpart has been informed or expected.