食品监管渎职罪的司法适用困境及出路

The Judicial Application Dilemma and Solution of Crime of Malfeasance in Food Regulation

食品监管渎职罪"入刑"后,由于监管部门混乱,监管职责的交叉和空白致使该罪发现查处难;刑法规范本身用语的模糊性,结果犯的入罪门槛高,因果关系认定难,与其他犯罪难以区分等因素导致其具体适用难;加之监管人员与不法分子相勾结等原因,使得设立该罪的预期效果难以实现。对于其在司法适用中的困境,需要厘清监管部门的职责,优化监管者队伍,通过明确刑法用语、引入危险刑法理念变结果犯为危险犯、采取条件说来判断因果关系、增加罚金刑和资格刑等来完善刑法法规,为该罪的司法适用难寻求出路。

Though Article 49 in Amendment （Ⅷ） to the Criminal Law of the P. R. C.adds the crime of malfeasance in food regulation in order to combat malfeasance in food industry and strengthen state supervision duty, the cross and blank of the regulatory responsibilities cause the crime difficult to investigate and deal with, Such factors, as the fuzzy nature of The principle of criminal legal norm, the high threshold of being crime of Consequential offense, the difficulties in Recognition of the Causal relation, the difficulties in distinguish this crime from others, makes it difficult in Concrete application. What makes the matter worse is that The supervisor collude with the criminal, making the desired effect of establishing the offense difficult to achieve. As to solve the dilemma of the Judicial Application, we should make the supervision department understand its duty and better the supervisor staff, what is more, we Should also perfect the criminal law, Including change the Consequential offense into Potential Damage Offense, use the condition theory in judging causal relationship, Fine Penalty and qualification penalty and so on.