论生产、销售不符合安全标准的食品罪

发布时间：2018-05-01 03:29

本文选题：风险刑法 + 民生刑法　；参考：《南京师范大学》2017年硕士论文

【摘要】：我国学者所论述的风险刑法因其在根源上与风险社会存在断裂,两者所指的风险在内涵上存在区别。风险社会中的风险最本质的特征在于人为的不确定性,而我国食品安全犯罪针对的则是传统工业社会中的风险。因此,风险刑法理论不能作为食品安全犯罪的指导理念。民生刑法观因其本身未突破法益保护观的范畴,只是概念上的创新而非实质内涵上的创新。民生刑法的概念虽具正当性,但不具有必要性。因此无论是风险刑法还是民生刑法都不适宜作为食品安全犯罪的指导理念,也都不能作为生产、销售不符合安全标准的食品罪犯罪圈扩大的正当性依据。立法虽需质疑与审视,但更重要的是善意地解释法律。随着食品安全问题频发,也引发了刑法学者们的思考。理论上有很多观点认为,应扩大生产、销售不符合安全标准食品罪的犯罪圈。但在现行法律尚可有效地规制犯罪,有效地保护法益时,无须主张在立法上进行修改,扩大犯罪圈。现行《刑法》第143条的规定可以有效地保护舌尖上的安全,保护不特定或者多数人的生命权、健康权。在行为对象上,食品包含食用农产品和含有食品添加剂的食品;在行为方式上,无须将“生产、销售”修改为“生产、经营”;在主观罪过上,既包含直接故意又包含间接故意,但无须另设本罪的过失犯罪。刑法理论通说认为本罪属于具体危险犯。司法实践中有观点认为以销售为目的的生产行为只成立本罪的未遂犯。但是这种观点势必和本罪属于选择性罪名相矛盾,意味着生产不符合安全标准的食品罪不能达到既遂的犯罪形态。风险刑法与民生刑法虽然不适宜作为生产、销售不符合安全标准的食品罪的指导理念,但仍有可取之处,即传递出了对食品安全的重视和对食品安全风险的防范。为了一方面解决具体危险犯与选择性罪名之间的矛盾,另一方面体现对安全价值和民本价值的重视,可在刑法理论上认为本罪属于抽象危险犯。将本罪理解成抽象危险犯正是对安全价值和民本价值作出的积极回应。
[Abstract]:The risk criminal law discussed by the scholars of our country is different from the risk criminal law in connotation because of the breakage between the risk criminal law and the risk society. The most essential feature of risk in risk society lies in the artificial uncertainty, while the crime of food safety in our country is aimed at the risk in traditional industrial society. Therefore, the theory of risk criminal law cannot be regarded as the guiding concept of food safety crime. The concept of people's livelihood criminal law has not broken through the scope of the concept of legal interest protection, but only the innovation of concept, not the innovation of essence. Although the concept of people's livelihood criminal law is legitimate, it is not necessary. Therefore, neither the risk criminal law nor the people's livelihood criminal law is suitable as the guiding concept of food safety crime, nor can it be used as the legitimate basis for the expansion of the crime circle of food crimes which does not meet the safety standards. Although legislation needs to be questioned and examined, it is more important to interpret the law in good faith. With the frequent occurrence of food safety problems, it has also aroused the thinking of the scholars of criminal law. In theory, there are many views that should be expanded production, marketing of food not in accordance with safety standards of crime circle. However, when the current law can effectively regulate crime and protect the interests effectively, there is no need to advocate legislative amendment to expand the crime circle. Article 143 of the present Criminal Law can effectively protect the safety on the tip of the tongue and protect the right to life and health of non-specific or majority people. In terms of behavior objects, food contains edible agricultural products and food containing food additives; in behavior, there is no need to change "production and sale" to "production and operation"; and in the case of subjective guilt, Including both direct intent and indirect intent, but without the need for this crime of negligence. The general theory of criminal law holds that this crime belongs to specific dangerous crime. In judicial practice, there is a view that the production behavior for the purpose of sale is only the attempted crime of this crime. But this view is bound to conflict with the crime of selectivity, meaning that the production of food that does not meet the safety standards can not achieve the completed form of crime. Although the risk criminal law and the people's livelihood criminal law are not suitable for the guidance idea of the crime of producing and selling the food that does not meet the safety standard, there are still some merits, that is, the importance of food safety and the prevention of the food safety risk are transferred. In order to solve the contradiction between the specific dangerous crime and the selective charge on the one hand, on the other hand, to embody the value of security and the value of the people, we can think that this crime belongs to the abstract dangerous crime in the theory of criminal law. To understand this crime as an abstract dangerous crime is a positive response to the value of security and the value of the people.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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