食品犯罪的行政法基础论析

Analysis on the Administrative Law Base of the Food-related Crimes

食品犯罪行为侵犯了国家对食品卫生和安全进行管理的法律秩序,我国《刑法》关于食品犯罪的规定在理论上被界定为法定犯。《刑法修正案(八)》对食品犯罪从原来的卫生标准调整为安全标准,实质上拔高了食品犯罪的入罪门槛;在社会危害性程度的界定以及法定刑的设置上仍赋予其以危险方法危害公共安全罪的一些特征,使得食品安全犯罪与危害公共安全犯罪存在混淆。这是因为没有充分地注意和清晰地界分行政法与刑事法在规范食品违法行为上的不同作用,刑事法的规制过于强调和追随行政法对食品违法行为的规制思路,在未来应该予以纠正和调整。

Food-related crimes infringe the national legal order of food hygiene and safety management. Mainland Criminal Code provisions on Food-related crime was theoretically identified as statutory. Due to the dependence and obedience of the Administrative Law,Amendment( Ⅷ),which adjusted food-related crime standards from hygiene to safety,substantially overstating incriminate threshold of food-related crimes. According to the adjustment of Amendment( Ⅷ),food-related crimes were still given some characteristics of crimes endangering public security in defining the extent of social harms and setting on Legal Sentences. This makes it difficult to distinguish between food-related crimes and crimes endangering public security. In this study,we focus on analyzing and demonstrating issues discussed above,and in-depth discussing future improvements and adjustments of Administrative Law based criminal law provisions on food-related crimes.