On February 5, 2020, it was reported that Dali City, Yunnan Province directly requisitioned a batch of emergency supplies purchased from Myanmar by the Chongqing Municipal Government and the Huangshi Municipal Government (a total of 9 pieces of 598 boxes and 300,000 masks), and on the evening of February 6, 2020, the official Weibo of People's Daily released the news: Dali City issued a notice that Yang Yanchi, Secretary of the Dali Municipal Health Party Committee and Director of the Municipal Health Bureau, was dismissed from his post, and Fang Hu, Secretary of the Party Group and Director of the Dali Municipal Bureau of Industry and Information Technology and Science and Technology, was given the sanction of government secretary.

Dali believes that there is a law to rely on the detention of emergency supplies, which is based on the Measures for Emergency Requisition and Compensation in Yunnan Province (Yunzhengban Fa [2016] No. 137).

According to the main body of the issuance, the Measures were issued by the General Office of the People's Government of Yunnan Province on December 7, 2016 and took effect on February 1, 2017. Therefore, the document is a local government rule.

Judging from the level of the document, the Measures are authorized to be formulated in accordance with the second paragraph of Article 82 of the Legislation Law of the People's Republic of China, that is, local government rules may provide for the following matters:

(1) Matters requiring the formulation of rules to implement the provisions of laws, administrative regulations, and local regulations;

(2) Specific administrative matters pertaining to that administrative region.

According to the content of the document, Article 1 of the Measures stipulates that "these Measures are formulated in accordance with the Emergency Response Law of the People's Republic of China, the Regulations of Yunnan Province on Emergency Response and other laws and regulations, in order to standardize the emergency requisition and compensation work for emergencies, enhance the government's ability to deal with emergencies, control, mitigate and eliminate serious social harm caused by emergencies, and protect the safety of people's lives and property." ”

Article 2 also clearly stipulates that "these Measures shall apply to emergency requisition and compensation in emergencies within the administrative region of our province". Therefore, the document has limited its scope of application to Yunnan Province only.

So, did Dali City's emergency requisition operate across provinces?

Before clarifying this issue, two questions must be clarified: first, whether the object of expropriation is under the administrative jurisdiction of Yunnan Province; Second, whether the requisitioned materials are owned by the unit or individual under the jurisdiction of the administration.

First, is the object of the expropriation under the jurisdiction of the Yunnan Provincial Administration?

From the limited news materials - Dashi Weizheng [2020] No. 1-61 line section "decide that you (the unit) will send 9 masks from Ruili City, Yunnan Province to Chongqing City by SF Logistics (see attachment for details)", and the consultation letter of the Cixi Municipal People's Government on the release of a batch of medical masks, it is inferred that the citizens of Cixi City purchased 112,000 medical masks from Ruili Tiansheng Pharmaceutical Company in Dehong Prefecture, etc., the possibility of the requisitioned individuals or units themselves being located in Yunnan Province is extremely high. (After the inquiry of the national enterprise credit information publicity system, there is no relevant information about Dehong Ruili Tiansheng Pharmaceutical Company.) There may be clerical errors in the above documents. ）

Second, are the requisitioned materials owned by the units or individuals under the jurisdiction of the administration?

According to Article 133 of the Contract Law of the People's Republic of China, "ownership of the subject matter shall be transferred from the time of delivery of the subject matter, unless otherwise provided by law or otherwise agreed by the parties". Although according to the provisions of the Contract Law and relevant judicial interpretations, if the subject matter needs to be transported, the seller shall deliver the subject matter to the first carrier for carriage to the buyer, and after the seller delivers the subject matter to the first carrier, the risk of damage to or loss of the subject matter shall be borne by the buyer. However, risk transfer does not represent ownership transfer, especially the rise of e-commerce network platforms and the development of the logistics industry, in order to improve service quality, most online shopping contracts are deemed to have completed delivery after the buyer signs for express delivery, that is, ownership transfer. Therefore, we infer that in the above incident, the materials requisitioned by Dali City still belong to the main body in Yunnan Province.

Therefore, according to paragraph 5 of Article 2 of the Measures for Emergency Requisition and Compensation for Emergencies in Yunnan Province: the requisitioned units and individuals referred to in these Measures are the compensated persons, which refers to citizens, legal persons or other organizations that have the right to own or use the requisitioned equipment, facilities, sites, means of transportation and other materials.

However, this outbreak is not a public health event that occurred only in Yunnan Province, but nationwide. The Announcement of the National Health Commission No. 1 of 2020 - Inclusion of Novel Coronavirus Pneumonia in the Management of Statutory Infectious Diseases, which includes novel coronavirus pneumonia in Class B infectious diseases stipulated in the Law of the People's Republic of China on the Prevention and Control of Infectious Diseases, and takes prevention and control measures for Class A infectious diseases.

According to the relevant provisions of the National Emergency Response Plan for Public Health Emergencies and the Law of the People's Republic of China on the Prevention and Control of Infectious Diseases, this epidemic meets the definition of a particularly major public health emergency. The first paragraph of Article 7 of the Emergency Response Law of the People's Republic of China stipulates that people's governments at the county level shall be responsible for the response to emergencies within their administrative areas; Where two or more administrative regions are involved, the people's government at the level above which the relevant administrative region is common is responsible, or the people's government at the level above the relevant administrative region is jointly responsible.

As a county-level city under the Dali Bai Autonomous Prefecture of Yunnan Province, Dali City has no authority to be responsible for the work of other administrative regions.

Article 63 of the Emergency Response Law of the People's Republic of China stipulates that where local people's governments at all levels and relevant departments of people's governments at or above the county level violate the provisions of this Law and fail to perform their legally-prescribed duties, the administrative organ at the level above or the supervisory organ shall order corrections; Subparagraph (7) clearly stipulates: Where there are circumstances where emergency rescue funds and materials are intercepted, misappropriated, privately divided or disguised privately, the directly responsible managers and other directly responsible personnel shall be given sanctions in accordance with law according to the circumstances. This is the scene of dismissal and punishment at the beginning.

Obviously, it is not advisable for Dali City and other provinces and cities to withhold relief materials from sister provinces and cities because of material shortages. The more difficult the moment, the more we should practice governing the country according to law and strictly enforcing the law to ensure the ultimate victory of the anti-epidemic work!

(This article is translated by software translator for reference only.)