法益保护前置:刑法对食品安全保护的路径选择——以帮助行为正犯化为研究视角

Routine Selection of Criminal Law for Food Security Protection:Preposition of legal interest from behavior's principal offending angle

食品安全领域犯罪频发,我国规制食品安全犯罪的刑事法网粗疏,致使诸多引发食品安全风险的帮助行为规制遭遇困境。发达国家如美、德、日等国的刑法,通过将帮助行为正犯化等路径实现法益保护前置,建构了从农田到餐桌的严密刑事法网,有力地保护了食品安全。我国刑法对侵害食品安全的帮助行为,立法上没有进行直接惩罚,实践中即使有帮助行为涉嫌食品安全犯罪,也是依据共犯等理论进行惩罚。食品安全保护的重要性、帮助行为的高风险性、惩罚帮助行为的依附性、帮助行为正犯化的可行性,决定了我国刑法应以刑事法治内在要求和外在要求为前提,考量帮助行为和实质损害之间的规范关联性、帮助行为与实质损害行为的因果关系、帮助行为的风险系数等,在附条件情况下实现食品领域高风险帮助行为正犯化,严密食品安全保护刑事法网,保护民生。

There are constant crimes in the domain of food industry in China, a situation that is hard to control by the legal net for food security crime, owing to the legal oversight. In the developed countries such as America, Germany, and Ja pan, there is a routine way of preposition by assisting the principal offending of behavior to realize the legal interest protection, a tight legal net for food security that may cover the whole process from the planting field to the dining table. Howev er, for the case in China, there is no direct punishment in legislation; even though there is assistance behavior for it in practice, the punishment has generally referred to the theory of accomplice. Therefore, the factors such as the importance of food security protection, the high riskiness of assistance behavior, the attachment characteristic of punishment assistance behavior, and the feasibility of principal offending have all led to the suggestion that the criminal law in China should be pre conditioned with the internal and external requirements of the criminal law government, to consider the normative relevance and the cause--effect relationship between the assistance behavior and essential harm, and the risky ratio of the assistance behavior, so as to realize the principal offending of assistance behavior in such high risky areas as food industry, that is, to make strict protection net of law for the people＇s livelihood.