食品安全社会共治的刑法学分析

A Criminal Law Analysis on Food Safety Social Co-governance

食品安全事件频频发生,然而对其治理一直主要局限于行政监管领域,这在很大程度上制约了食品安全问题治理的效果。为扭转食品安全形势,我国新《食品安全法》提出了"社会共治"原则,学界通常在管理领域、行政法领域探讨该原则,所以司法机关是否为共治主体尚未进入视野。司法机关作为打击食品安全犯罪的最后屏障,理应成为共治主体。从刑事法治看,《刑法修正案(八)》修订了生产、销售不符合安全标准的食品罪与生产、销售有毒、有害食品罪的罪状、法定刑,并增设了食品监管渎职罪,加大了惩治和监管力度;司法解释明确了对食品安全犯罪可以适用禁止令;《刑法修正案(九)》增设了可以适用于食品安全犯罪的职业禁止。这些均为惩治食品安全犯罪提供了更严密且更严厉的法律依据。然而,当前食品安全犯罪仍然存在打击范围偏窄,禁止令偏软,职业禁止期限偏短等不足,需要予以补救。在司法适用上,建议罚金刑数额不要低于行政处罚中的罚款、职业禁止适用最高期限;在立法上,需延展食品安全犯罪的环节、增加食品安全犯罪的类型。

Food safety affairs happen frequently, but their regulations have been primarily limited to administrative supervision, and this limitation restricted the regulatory effect on food safety issues to a great extent. In order to change this situation, the new 〈 Food Safety Law 〉 proposed that the principle of social co - governance. This principle is usually discussed in the field of Management and Administrative Law, but not in regard to whether judicial organs can be the main body of the co - governance. Judicial organs are the last resort for combating food safety crimes, accordingly, they should be the main body of social co - governance. From the perspec- tives of Rule - of - law in Criminal justice, 〈 Amendment ＂VIII to the Criminal Law 〉 amended the punishments for the crime of producing and selling foods that not meeting the safety stand- ards, and the crime of producing and selling foods that are poisonous or hazardous, it also put forward the crime of dereliction of duty on food supervision and management, strengthening the force of supervision and punishment; Judicial explanations clarified that injunctions can be used on food safety crimes. 〈 Amendment IX to the Criminal Law 〉 included the Criminal Career Pro- hibitions suitable for food safety crimes. These actions provided more stringent legal basis for punishing food safety crimes. However, at the moment, problems such as the narrow range of at- tack, the softness of injunctions and the short duration of Criminal Career Prohibitions still exist and need to be tackled. In the application of jurisdiction, we propose that the amount of fines should be no less than the fine in administrative punishment and the criminal career prohibition should use the longest duration. In terms of legislation, the angles of food safety crimes should be extended and the types of food safety crimes should be increased.