REDVET Rev. electrón. vet. http://www.veterinaria.org/revistas/redvet
Vol. VIII, Nº 12B, Diciembre/2007– http://www.veterinaria.org/revistas/redvet/n121207B.html
Pr oble m s on t h e En for ce m e n t Ju dica t u r e a n d Le ga l
Su pe r vision of An im a l W e lfa r e La w s
Song W e i : Professor and Lawyer Law I nst it ut e Univ. of Science and Technology of China No96 Jinzhai Road, Hefei, 230026 CHI NATel: 86- 551- 3953570 Fax: 86- 551- 3606266 Em ail: songw ei@ust c.edu.cn
REDVET: 2007, Vol. VIII Nº 12B
Recibido: 17.04.06 Referencia: BA019 Aceptado: 02.05.06 Publicado: 01.12.07 Este artículo está disponible en http://www.veterinaria.org/revistas/redvet/n121207B.html
concretamente en http://www.veterinaria.org/revistas/redvet/n121207B/BA019
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Along wit h t he econom ic developm ent and social progress, t he idea of anim al prot ect ion has gone deep int o people’s heart s all over t he world. Anim al prot ect ion includes not only reserving species resources and nursing t he diversificat ion of creat ures, but also anim al healt h care and welfare. Com pared wit h som e ot her count ries, t here exist s severe im perfect ion on legislat ion for anim al prot ect ion, and t he relat ed legal syst em is nearly left blank. I n view of such unfavorable st at e and t he rising appeal for anim al prot ect ion, it is an inevit able t rend t o enact China Anim al Welfare Law s. Since t he final purpose of legislat ion has t o be reached
t hrough t he enforcem ent and realizat ion of t he law, t here involve t he problem s on t he enforcem ent , j udicat ure and legal supervision of China Anim al Welfare Law s.
t hat t he enforcem ent of Anim al Welfare Law s is m ainly carr ied out by execut ive offices, while t he j udicat ure is by t he court .
The clarificat ion on t he concept of enforcem ent is t he prem ise and prerequisit e for t he lawm an t o carry out laws. Com pared wit h ot her laws, Anim al Welfare Laws is charact erized by it s close connect ion t o science and t echnology, not iceable feat ure of bi- disciplinary science and obvious m oral nat ure, so it cont ains m any concept ions difficult t o grasp. As far as t he concept of “ welfare” is concerned, it involves several w ords like healt h, happiness and coziness. The difficult y in underst anding welfare lies in t he definit ion of t he t hree adj ect ives, for t hey are all about subj ect ive feelings of w hich each person has different crit eria. Different classificat ion of t he concerned obj ect s m ay bring about great dist inct ion on t he underst anding of t he concept . Anot her exam ple, alt hough it can be given a definit ion in t he law t o which behavior belongs t o “ cruelt y” or “ anim al m alt reat m ent ” ( behavior t hat causes unnecessary pain) , t he enforcem ent in realit y is oft en subj ect ive. There are lot s of such exam ples. I f t he execut or cannot m ake clear of t hose concept s, it will definit ely influence t he efficiency and effect of enforcem ent .
The person execut es a law should also clear ly know t he procedure of enforcem ent , on t he basis of clarificat ion on concerned concept s. The enforcem ent of Anim al Welfare Laws belongs t o execut ive enforcem ent t hat has t wo m aj or links: one is t o ascert ain t he exist ence of an illegal fact , i.e. clear fact s and accurat e adj udicat ion; t he ot her is t he legal procedure. To m y m ind, t he key point of t he form er is t o st rengt hen t he propaganda of t he law t o m ake every cit izen be aware of t he exist ence of Anim al Welfare Law s, because anim als cannot t hink as m an does, nor can t hey express t he pain t hrough language. I f t he whole societ y lacks t he idea of Anim al Welfare Law s, t he illegal com m it m ent w ill not be invest igat ed and dealt
w it h in t im e, which t hereby brings great difficult y in adj udicat ing. On t he cont rary, if t he idea of Anim al Welfare Laws goes deep int o people’s heart s, t hen t he illegal com m it m ent can hardly escape t he denouncem ent of t he ot hers. I t will also be invest igat ed and handled in t im e, and be adj udicat ed accurat ely. Besides t hese, t here leaves problem s on t he procedure. Art icle 31 in chapt erⅤin Execut ive Penalt y
Law s of People’s Republic of China, st ipulat es t hat t he execut ive office should
basis of t he decision, but neglect s t o not ify his legal right s, it is an incorrect procedure. Once t he lawsuit ent ers t he st age of reconsiderat ion or lit igat ion, it is very likely t o lose.
Alt hough Anim al Welfare Laws is aim ed t o “ serve t he anim als”, t he m ost w ork of it s enforcem ent is t o m ake cont act wit h people, so it is t he prerequisit e for sm oot h enforcem ent t o gain t he respect of t he public first . On account of t hat , st rict at t it ude is needed in t he course of im plem ent at ion. I n m y opinion, it should include follow ing aspect s: 1. Civil enforcem ent - - - t he execut or should be polit e, and should not show arrogance or rebuke t he person concerned. 2. Clear underst anding of t he st at us of execut ing st aff- - - it should be m ade clear t hat only t he com m it m ent of professional execut ing st aff or t he unit and individual aut horized by t he governm ent according t o t he rules in Anim al Welfare Laws can be called enforcing public affair. Unaut horized zoologist s or law workers have no right t o enforce a law. 3. Neat appearance- - - t he execut ing st aff should norm ally keep st rict requirem ent t o t he appearance. For exam ple, fem ale st aff should not be w earing long hair hung over t he shoulder, or heavily m ade up; t he m ale st aff should not w ear long hair and m ust ache, and have t o be neat ly dressed. Any st aff cannot execut e a law aft er drinking.
There st ill exist m any problem s on t he enforcem ent of Anim al Welfare Law s. What ’s m ore, t he execut ive offices have som e deficiency unfavorable t o prot ect anim al welfare, such as, t he slow reflect , t he underest im at e on t he severit y of som e t rivial anim al abusing event s, and so on. To m y m ind, t he m ost effect ive way t o solve t he above problem s is t o set up special sect ions of anim al w elfare in t he governm ent on each level, and select professionally t rained execut ive st aff t o form t he enforcing t eam . Furt herm ore, t he sect ion should be closely connect ed t o t he public, posit ively list en t o public opinions and warm ly deal w it h t he com plaining. Thus t he enforcem ent of China Anim al Welfare Law s w ill have a fine beginning. The specific problem on t he j udicat ure of Anim al Welfare Laws involves t he collect ion of evidence w hich includes m at erial evidence, wit ness, docum ent al evidence and legal clauses. There is norm ally no difficult y in collect ing t he last t w o kinds. The problem m ainly exist s in t he collect ing of m at erial evidence and w it ness. Mat erial ev idence includes abused anim als, anim al product against Anim al Welfare
Laws, and ot her at t ached m at erial, such as, poisonous and harm ful m edicine,
locat ion should be accurat ely recorded, w it h t he collat eral evidence and m arkers, and also t he signat ure of wit ness and t he person concerned. I n a word, all proof connect ed t o t he m at erial evidence should be collect ed. Wit ness includes t he behavior of t he person involved in t he case- - - t he person, his t est im ony ( w rit t en record) , and so on. The writ t en record w ill t ake no legal effect , unless at least t w o persons are present , and t he records of all wit ness should be concurrent wit hout any cont radict ion. Finally t he signat ure of t he wit ness and t he dat e are bot h needed. I n addit ion, t he close connect ion of Anim al Welfare Law s and t o science and t echnology, and t he conspicuous feat ure of bi- disciplinary science require t he posit ive applicat ion of t echnological m eans in t he course of collect ing evidence. Besides convent ional skills, it includes also som e biological m eans, such as, DNA t est . For exam ple, in a case in t he Unit ed Kingdom , t he defendant was accused t o have dug int o t he badgers’ nest t o dist urb, cat ch and kill t hem . RSPCA carried DNA t est on t he blood of t he anim al, and got sufficient evidence t o prove t he accused has t ort ured and killed t he badgers. The defendant was t hen sent enced t o be in j ail for five m ont hs. From t his, it can be seen t hat t he j udicat ure of Anim al Welfare Law s needs t he support of science and t echnology.
The j udicat ure in pract ice needs not only sufficient evidence, but also specific and applicable clauses. However, a single Anim al Welfare Laws cannot cover all t he aspect s, and respect ively m ake det ailed provisions. Therefore, besides t he collect ion of evidence, t he j udicat ure of Anim al Welfare Laws depends m ore on t he perfect ion and com plet eness of t he legal syst em on anim al w elfare. Anim al Welfare Laws m ainly cont ains t he principled art icles. Specific and applicable clauses are provided by relat ed branch law s and legal files w hich keep being perfect ed in pract ice. I n addit ion, Anim al Welfare Laws should closely cooperat e w it h Crim inal Law s on crim inal m at t ers concerned w it h anim al w elfare. Ot her law s connect ed t o anim als, such as, Grassland Laws, Forest ry Laws, Fishery Laws and so on, should supplem ent rules t hat is not involved in Anim al Welfare Laws. What ’s m ore, j udging from current sit uat ion, t he m aj or problem on t he j udicat ure of Anim al Welfare Laws is t hat som e t rivial cases can hardly find any solut ions from
Besides t he essent ial elem ent s of enforcem ent , j udicat ure and obedience t o t he law, t he legal supervision is indispensable t o realize t he law, which m eans t o t urn t he est ablished legal regulat ions int o realit y in t he societ y. The legal supervision is, in it s broad sense, t he supervision over t he law fulness of all kinds of legal act ivit ies, by all st at e offices, social organizat ions and cit izens. The supervisal syst em of
China Anim al Welfare Laws includes t he supervision of execut ive offices, social
organizat ions, m edia and t he m asses, am ong which t he supervision of execut ive offices plays a leading role, and is t he m ost crucial link.
The legal supervision of execut ive offices on Anim al Welfare Laws should em phasize on follow ing aspect s:
1. To st udy and spread Anim al Welfare Law s. I t includes:
( 1) To act ively report t o t he higher level so t hat t he leaders m ay realize t he im port ance and necessit y of Anim al Welfare Laws and it s supervision.
( 2) To m ake t he public accept and support t he course of anim al welfare by t he popularizat ion t hrough different channels in different form s; and t o m ake t he enforcing st aff underst and and abide by t he law, furt herm ore enforce t he law st rict ly by t he educat ion on law s and discipline.
( 3) To publicize t he law pat ient ly and carefully am ong t he regulat ed ( such as, t he ow ner of t he chicken farm , slaught erhouse, pet s and so on) , t o m ove t hem on em ot ion and t each t hem by reason so t hat m ost of t hem w ill be ready t o abide by t he law and accept t he adm inist rat ion of execut ive offices; and t o show t hem t he law s and regulat ions on anim al welfare, and accept t heir supervision.
( 4) To st rengt hen t he horizont al propaganda t o concerning depart m ent s in order t o gain t heir underst anding and support , and also necessary supervision on t he enforcem ent of Anim al Welfare Law s.
2. To build up t he enforcem ent t eam and st rengt hen t he inner m anagem ent by specialized t raining.
3. To clarify t he focus of w ork, and int ensify t he st rengt h of supervision. I t w ill definit ely be accom plished, so long as w e keep exploring and perfect ing in pract ice.
