论《食品安全法》惩罚性赔偿金制度的适用

On the judicial application of punitive damages in the Food Safety Law

新《食品安全法》大幅修订了惩罚性赔偿金条款,完善了制度适用的部分内容,但仍有若干司法争议有待解决。合理判断惩罚性赔偿的责任性质应当对责任主体进行区分,请求生产者惩罚性赔偿的,应构成侵权责任,以造成损害为前提;请求销售者惩罚性赔偿的,既可以是侵权责任,也可以是违约责任,不必以造成损害后果为适用前提。食品安全标准属于技术性规范,经食品安全法的认可成为具有法律效力的强制性标准,正确认定"不符合食品安全标准"不宜使用或然性、政策性、推定性判断,而应坚持规范原则,查找和比对各类食品安全标准。对于经营者"明知"的判定应当以知道或者应当知道为标准。

The new Food Safety Law has made a lot of amendments to the punitive damages, which improves the application of this term. But there are still several arguments yet to be settled on its judicial appliance. The liability subjects should be differentiated to decide the nature of the liability. It is to say that if the producers are requested for the punitive damages, it should be a tort liability with damages. If the sellers are requested for the punitive damages, it can be a tort liability or a liability for breach of contract. The food safety standards are originally technical norms and they become compulsive standards with legal effects after the recognition of law. It is improper to make probabilistic reasoning judge according to policy or presume the result. Various food safety standards should be researched and checked to find and match various types of food safety standards. To judge whether the sellers＇ unlawful behavior is knowingly or not, one should consider both the situation of know or should know.