食品监管渎职行为的公法责任体系及其发展趋势——以食品监管渎职罪的修订为视角

Public Law Responsibility System for Malfeasance in Food Supervision and Management and Its Development Trends:From the Perspective of the Revision of the Crime of Malfeasance in Food Supervision and Management

合理配置公法责任对规范食品安全监管、约束渎职行为至关重要。我国分别建立了针对食品监管渎职行为的行政责任和刑事责任体系,其中行政责任主要按照县级以上人民政府、县级以上人民政府组成部门两大类主体,区分渎职行为轻重搭建责任体系,刑事责任则主要由食品监管渎职罪进行规定。食品监管渎职罪修订反映了我国食品安全治理策略,配置食品监管渎职公法责任时应当符合治理策略,包括以监管责任为基础、以尽职作为承担责任的核心标准、遵守罚责相适应的基本原则、立足食品安全合作监管现实等。《刑法修正案(十一)》最终以“造成严重后果或者有其他严重情节”作为入罪条件,适当调整了入罪范围。食品监管渎职罪修订后,食品监管渎职罪案件数量明显减少,刑事处罚范围总体上受到限缩,但少量渎职行为的刑事处罚得到扩张。

Reasonable allocation of public law responsibility is very important for restraining malfeasance and standardizing food safety supervision.China has established administrative and criminal responsibility systems for malfeasance in food supervision and management.The administrative responsibility is mainly divided into two parts:the responsibilities of the people’s governments at or above the county level and those of the constituent departments of those governments,and a responsibility system should be established to distinguish the severity of dereliction of duty.The criminal responsibility is mainly stipulated by the crime of malfeasance in food supervision and management.The revision of the crime of malfeasance in food supervision and management reflects China’s strategies for food safety governance.The allocation of public law liability for malfeasance in food supervision and management should conform to those strategies including taking regulatory responsibilities as the basis,taking due diligence as the core standard of responsibility,adhering to the basic principle of adapting punishment to responsibility,and establishing a foothold in the reality of food safety co-regulation.The Amendment(XI)to the Criminal Lawfinally maintains‘causing serious consequences or any other serious circumstance’as the typical conditions of incrimination,and appropriately adjusts the scope of criminalization.The amendment has significantly reduced the number of cases concerning malfeasance in food safety supervision and limited the scope of criminal penalties,but the amendment has expanded criminal penalties on a small amount of malfeasance.