从“鼓励性惩罚”到“惩罚性赔偿”——食品药品安全问题的法律经济学分析

From “Encouraging Punishment” to “Punitive Damages”:Analysis on China's Foods and Drugs Safety in Perspective of Law and Economics

近年来,我国食品药品安全事故屡禁不止,执法机构虽然相继采取多种法律制裁手段,但是实施效果不佳。从法律经济学的视角分析,现有的执法手段存在"罚款数额少""定罪概率低""赔偿范围窄"三大不足。这使现有执法手段有时不仅未起到"扬善抑恶"的惩罚作用,反而沦为"惩罚查处为表、鼓励纵容为实"的"鼓励性惩罚"。惩罚性赔偿制度可以有效地解决"鼓励性惩罚"问题。目前我国亟待完善惩罚性赔偿相关法律法规,建立以实际损害为计算标准、以集体诉讼提高司法概率、以惩罚弹性指标保障适度赔偿数额的具体制度,以增强食品药品安全法律的实施效果。

In recent years, there are an increasing number of safety accidents that could not be ignored in the area of foods and drugs in China. To solve these safety issues, a variety of legal sanctions that had been taken by the enforcement agencies, but the effect was poor. When we analyze from the perspective of law and economics, we could find three disadvantages in the enforcement： less amount of penalty, low probability of conviction and narrow scope of compensation, which did not punish the ＂evil＂, on the contrary, led to a kind of ＂encouraging punishment＂ that punishes on the table while encourage under the table. The punitive damages could effectively solve the problem. At present, it is urgent to improve the relevant laws and regulations of punitive damages, establish the specific legal system , to enhance the effect of food and drug safety laws. For example, the actual damage is used as the standard, the class action is used to improve the judicial probability and the punitive damages elasticity index.