论中国食品安全法律体系的完善

The Perfection of Food Safety Legal System in China

我国目前食品安全形势严峻的主要表现是:产地环境污染较为严重;食品生产加工水平还处于较低阶段;食品安全标准与食品安全检测技术与国外发达国家存在较大差距;食品安全违法行为具有广泛性和普遍性,违法手段呈现恶意性、严重危害性和多变性;假冒伪劣食品严重侵害人民群众的身体健康,并导致消费者食品安全信心不足;食品出口受阻,严重影响经济的发展。食品安全形势严峻的主要原因是:现行食品安全法律体系的构建并不以食品安全为目的;现行食品安全法律体系强调以制裁为特征的“强法”,忽视以强调纲领、政策和原则为特征的“软法”;中央人民政府食品安全管理职能尚且没有法制化,食品安全公共管理部分职能缺失;食品安全监管职能横向与纵向的交叉和冲突严重;食品安全标准的含义以及强制性标准的法律性质和法律位阶的模糊不清。我国食品安全法律体系完善的构想:制定食品安全基本法;清理和完善现行食品安全监管法;建立食品安全监管部门之间、地方与中央之间及地方与地方之间的协调机制。

China is now faced with serious problems in food safety, which is showed as follows： environmental pollution is severe in producing areas; food producing and processing level stays at a lower stage; there is still a long way to go in standard and technology of food safety compared with developed countries; illegal activities are widely and commonly seen with illegal measures taken in malicious, harmful and various ways; counterfeit and inferior food is greatly detrimental to the consumers＇ health, causing a reduction of their confidence in food safety; and economic development is negatively impacted due to impeded export of food. The reasons of severe situation above lie in five aspects. First, current food safety legal system has not been constructed with the purpose of accomplishing food safety. Second, the legal system emphasizes ＂hard law＂ that is characterized by punishment while neglects ＂soft law＂ characterized by program, policy and principle. Third, the public management of the central government of people has not fully functioned according to law and regulation. Fourth, the food safety supervision departments exercise their function in an intersected and conflicted way. Finally, the food safety standard is not accurately defined, nor the nature or grade of mandatory standard. To perfect the legal system of food safety in China, we should promulgate fundamental law of food safety, check up and improve current food safety supervision laws, and establish dynamic and harmonized mechanisms among separate supervising departments, and between different local governments as well as between central and local authorities.