论经济法的风险规制范式

Study on Risk Regulation Paradigm of Economic Law

美国的规制理论与我国的经济法学存在一定的对应性。风险规制以"风险"为核心,对食品、安全、环境等领域的规制理论与实践予以系统整合和深度阐述,是社会性规制的范式革命。现代社会中风险发生变化,使建构于风险个人责任的私法和秩序行政的传统风险治理难以应对。现代国家的安全保障义务,既通过社会安全网建设对风险受害人承担责任,又以风险规制的积极行动在先消减风险。风险的二重性凸显科学、民主单一视角的困境,须区分风险事件中的价值与事实,并在协商民主框架中进行风险沟通,从而统合科学与民主。针对不确定、不可逆的风险,应当采取风险预防原则,并以比例原则对预防措施予以限制。风险预防原则下,国家可以降低证明标准举证预防措施的正当性,风险制造者举证责任予以反驳,但是无须强调绝对的无风险。我国处于风险频发期,经济法学在相关议题上的话语权取决于对风险规制范式的移植,以实现能够回应风险社会的自我革命。

It is certain correspondence between regulation theories in U. S. and economic law in China. Risk regulation is the paradigm revolution of social regulation, that is to risk as the core, and systematic to integrate and depth to explained for regulation theory and practice in food, safety, environmental and other areas. Risk had changed in modern society, so that the traditional risk government by private law and order administration based on risk personal responsibility is difficult to deal with. Security obligations of modern state are both through social safety net under the social state construction to take responsibility for victim risk, and risk regulation positive action under the, regulation state earlier to eliminate and reduce risk. The duality of risk science single view of democracy or science to be plight, and it must distinguish between value and fact in risk event, so public awareness, rational experts carry out their duties, and to risk communicate in the deliberative democracy framework, and thus integration of science and democracy . It shall take precautionary principle to the uncertainty and irreversible risk, and the preventive measures proportionality principle should be limited by proportionality principle. ~ate can prove a lower standard of proof to be legitimacy of preventive measures for precautionary principle, the risk burden of proof to refute the manufacturer, but they not to stress the absolute risk. China is risk - prone period, and the right to speak of economic law on issues related and it achieve self - revolution in order to respond to the risk society, depends on risk regulation transplanting.