食品犯罪中非食品原料制售行为定罪新论——兼论刑法中帮助犯理论的拓展

New Opinion on the Conviction of Making and Selling Nonfood Raw Materials in Food-related Crimes——On Extension of Accessory Theory in Criminal Law

非食品原料制售行为的规制是刑法遏制食品犯罪源头的关键,其定罪问题在实务与理论中存在争议。"以危险方法危害公共安全罪"与"非法经营罪"的适用分别存在行为与客体的瑕疵,"生产、销售有毒、有害食品罪"的选用具有合理性,但现有理论对适用根据的解读存在局限。持"生产、销售有毒、有害食品罪"之帮助犯的定罪观点,理论路径是延展帮助犯理论,将其定位于解决社会中"帮助"危害社会现象的刑法理论;定型于帮助行为、帮助故意和帮助情节组成的定罪标准系统;定制于有权解释机关做出的司法解释。

The regulation of making and selling nonfood raw material is the key for the criminal law to suppress food-related crimes. Controversy over the conviction arises in both practice and theory. There are flaws in terms of behavior and object in the application of ＂crime of endangering public safety by dangerous means＂ and ＂crime of illegal business operations＂. And although it is reasonable to apply ＂crime of producing and selling poisonous and harmful food＂, there is limitation for existing theories to interpret its application foundation. The opinion of convicting those making and selling nonfood raw materials as accessories of ＂ crime of producing and selling poisonous and harmful food＂ lays its foundation on the extension of accessory theory. The extended theory can serve as a theory of criminal law which can be applied to those who ＂assist＂ in behavior of endange- ring the society, form a system of conviction standard consisting of accessory be- havior, accessory intention and accessory circumstances, as well as establish ju- dicial interpretation given by the institutions with the power of interpretation.