论食品安全监管的刑事责任——监督过失理论的借鉴及“本土化”运用

On the Criminal Responsibility of Food Safety Supervision——Drawing Lessons from the Theory of Supervisory Negligence and Its "Localized" Use

追究食品安全监管刑事责任重在保护公共安全,区别于重在保护职务的渎职罪责任。应借鉴监督过失理论,以危惧感说认定监督人过失;应根据客观归责论,结合《食品安全法》判断监督过失行为;根据法人实在说,我国监管刑事责任主体应为行政监管人员;不能以中断论将监督客体限制为被监督人的过失行为。监督人罪名与被监督人罪名无关,监管刑事责任与渎职罪责任是想象竞合关系。一般应按过失以危险方法危害公共安全罪追究食品监管刑事责任。

The criminal responsibility of food safety supervision focuses on protecting public safety and differs from the responsibility of the crime of dereliction of duty which focuses on the protection of job duty.We should draw on the theory of supervisory negligence and judge the supervisor's negligence by 'fear of danger' theory.Supervisory negligence action should be determined on the basis of objective attribution theory,taking into consideration of 'Food Security Act'.According to corporate realism,the undertakers of supervisory responsibility should be the administrative supervisory officers in our country and should not be restricted to negligent misconduct by the interrupting theory.The applicable charges of the supervisor has nothing to do with that of the suprevised person;and the criminal responsibility of supervision and that of dereliction are in a relationship of competing imaginations.In general,the charge of the criminal responsibility of food safety supervision should be the crime of negligently endangering public safety in a dangerous way.