论《食品安全法》民事责任条款的适用——以第147条和第148条为例

Applicability of civil liability clause in Food Safety Law:an example of Articles 147 and 148

《食品安全法》的民事责任条款极具特殊性,突出地表现在第147条和第148条所规定的民事责任优先制、首负责任制和惩罚性赔偿制上。对这三种特殊民事责任制的适用,理论和实务上并未达成共识。民事责任优先制会因民事、行政和刑事三种程序衔接上的时间差而落空。《食品安全法》中的民事赔偿责任不仅可以因侵权责任而发生,也能因违约责任和缔约过失责任而发生,其是一个开放的体系。首负责任制是先行赔付制的一种发展,均是程序性的法律责任,体现了国家意志,其适用条件为"不符合食品安全标准",食品安全标准具有比较明确的内涵和外延。惩罚性赔偿同样既可以因侵权责任而发生,也可以因违约责任而发生,这就使得"知假买假"情形当然适用惩罚性赔偿制。对于食品生产者和经营者,惩罚性赔偿的原因是一致的,但其在主观构成要件方面存有一定差异。

The civil liability clauses in Food Safety Law are very special, which is reflected on the civil liability priority system, the first liability system and the punitive damages system stipulated in Articles 147 and 148. There is no consensus in theory and practice on the applicability of these three special civil liability systems. The civil liability priority system will fail due to the time difference between the connection of the civil, the administrative and the criminal procedures. The civil compensation liability in the Food Safety Law can not only occur because of tort liability, but also because of liability for breach of contract and liability for negligence of contract, which is an open system. The first responsibility system is an extension of the first payment system, which is a procedural legal responsibility, reflecting the national will. And its applicable conditions is ＂not meeting the food safety standard＂, and the food safety standard has a clear connotation and extension. Punitive damages can occur not only as a result of tort liability, but also due to breach of contract, which makes the applicability of punitive damages system certain. For food producers and marketers, the reasons for punitive damages are consistent, but there are some differences in the conditions.