行政机关公布食品安全消费警示的法治化研究
发布时间：2018-08-15 14:36
【摘要】：在中国,食品安全消费警示的公布主体包括消费者协会和具有法定职权的行政机关。前者是消费警示制度的创立者,通过启动“消费警示工程”、制定《消费警示制度实施规范》等措施来建立和完善公布食品安全消费警示的信息平台和制度依据,充分发挥着民间自治组织社会监督的作用。对消费者协会公布的食品安全消费警示有争议完全可以通过民事诉讼的途径加以处理,实践中也不乏其例。近年来,随着食品安全事故的频发,行政机关也越来越倾向于采用公布消费警示这一类新型的事前规制手段,有效防范和化解了行政执行的风险和社会安全的风险。但由于行政机关法律地位的特殊性,加之食品安全消费警示所对应的法律规范的缺位及救济渠道的狭隘,一旦食品安全消费警示公布失范,可能会给被公布方造成难以挽回的伤害,导致社会净福利的损失。“农夫山泉砒霜门事件”、“金浩茶油事件”等正暴露出我国食品安全消费警示的公布存在诸多问题,亟需对其进行有效的法律治理。沿着基础理论构建、制度依据设计、救济途径打造层层递进的思路,来解决当前行政机关公布食品安全消费警示的困境。具体来说:从基本内涵着手,对食品安全消费警示的概念和性质进行重述。在其概念的内涵和外延界定上,通过语义学解释及对法律规范、执法实践的综合分析,提出食品安全消费警示包含风险警示、违法行为警示和其它信息警示三类。在其性质的定位上,认同食品安全消费警示属事实行为的特性,但力求弱化不同类型行政行为间泾渭分明的区隔,建议秉承实用主义的风格来重新审视其内在属性,确保社会公共利益维护和特定人权益保护之间的均衡。从类型化研究角度着手,抽离出实践中食品安全消费警示所涉的法律关系主体,发现两类运作机理不尽相同的食品安全消费警示,即“双方型”和“三方型”消费警示。前者受法的控制较弱,发生争议的情况较少;后者由于涉及具体的食品生产者、销售者,一旦行政机关错误公布食品安全消费警示,则会产生行政权力滥用、企业合法权益和社会福利损害等问题。因此,“三方型”食品安全消费警示应当成为法律关注的重点。从正当性角度分析,行政机关公布食品安全消费警示是服务行政的必然要求,是对公民知情权的保障,更是提高行政行为效率的内在动力。然而,通过对一些法律规范与公布实践的观察,不难看出食品安全消费警示缺少应有的立法支持,实践中也是乱象丛生。有关消费警示的规定散见于各层级的食品安全法规范中,且越是位阶低的规范设定食品安全消费警示越密集,授予行政机关过多的自由裁量权。透过“典型事件”折射出食品安全消费警示的公布至少存在以下三方面的问题:一是,公布的主体和权限不明;二是,公布的条件、内容和程序不清;三是,违法公布的法律责任和救济途径缺失。对比美、日、德等国的立法与司法规制,发现食品安全消费警示与正当程序、法律保留及比例原则密不可分,这是对我国食品安全消费警示公布制度完善的一点启示。对食品安全消费警示公布的法治化路径,必须以类型化区分为前提,在公共福利最大化的空间内统筹考虑行政成本与效率、社会公众的健康与安全、特定第三人程序的参与权以及司法审查的成本与效率。具体可从立法构造、司法审查及行政自我控制三方面展开。就立法构造而言,《食品安全法》、《食品安全信息公布管理办法》等规制食品安全的法律法规并没有进行过系统、完整规定,有必要从宏观和微观上把握食品安全消费警示的立法设计。从宏观上看,需要不断整合食品安全消费警示的立法模式;从微观上看,需要明确食品安全消费警示的公布主体、权限及程序,尤其要注意对公布程序的具体设置。“双方型”食品安全消费警示在程序的管制上可以适当放松,而为确保“三方型”食品安全消费警示公布的实效性,应当优先确立说明理由制度、听证制度和时限制度这三项最为关键的程序,使利益相关者有权参与公布程序,了解相关的运作依据、过程和结果。就司法审查而言,需要站在新《行政诉讼法》的视角上明确食品安全消费警示的可诉性、司法审查强度和判决类型三个要点。首先,依托法律解释学对“行政行为”的概念进行阐述,并从实体法政策角度分析“三方型”食品安全消费警示的可诉性;其次,在“合法性审查标准”下,将行政法基本原则作为食品安全消费警示案件的审理依据。在此基础上,可对不同内容的食品安全消费警示的审查强度作适当区分;最后,通过诉讼类型的构建,为违法食品安全消费警示的受害者编织足够的权利保护网。就行政自我控制而言,第一,通过制定行政规则,细化立法规定的原则和标准;第二,建立错误信息投诉与处理平台,完善行政系统内部处理制度;第三,充分发挥行政救济的功能,落实责任追究机制。可以说,从行政内部寻求对公布食品安全消费警示的规范或许是最为有效的办法。
[Abstract]:The former is the founder of the consumption warning system, which establishes and perfects the information platform and the administrative organs that publish the food safety consumption warning by initiating the "consumption warning project" and formulating the "implementation standard of the consumption warning system" and other measures. In recent years, with the frequent occurrence of food safety incidents, administrative organs are increasingly inclined to adopt the publication and elimination method. Fee warning, a new type of pre-regulation means, effectively prevents and defuses the risks of administrative execution and social security. However, due to the particularity of the legal status of administrative organs, the absence of legal norms corresponding to food safety consumption warning and the narrow relief channels, once the food safety consumption warning is publicized out of order, it may be possible. It will cause irreparable damage to the publicized party and lead to the loss of social net welfare. "Farmer's Shanquan Arsenic Gate Incident" and "Jinhao Tea Oil Incident" are revealing many problems in the publication of food safety consumption warnings in China, which need to be effectively governed by law. In order to solve the dilemma of publishing food safety consumption warnings by administrative organs, we should restate the concept and nature of food safety consumption warnings from the basic connotation. It is pointed out that food safety consumption warning includes risk warning, illegal behavior warning and other information warning. In terms of its nature, it is recognized that food safety consumption warning belongs to the characteristics of factual behavior, but strives to weaken the distinct distinction between different types of administrative acts. It is suggested to re-examine it in a pragmatic manner. Starting from the angle of typology, this paper draws out the legal relationship subjects involved in food safety consumption warning in practice, and finds that the two types of food safety consumption warning have different operational mechanisms, namely "two-way" and "three-way" consumption warning. As the latter involves specific food producers and sellers, once the administrative organ mispronounces food safety consumption warnings, it will lead to abuse of administrative power, legal rights and interests of enterprises and damage to social welfare. From the perspective of legitimacy, the publication of food safety consumption warnings by administrative organs is the inevitable requirement of service administration, the protection of citizens'right to know, and the internal driving force to improve the efficiency of administrative actions. The provisions on food safety warnings are scattered in the food safety laws and regulations at all levels, and the lower the rank, the more intensive the food safety warnings are, and the more discretion is granted to the administrative organs. There are at least three problems: firstly, the subject and authority of the announcement are not clear; secondly, the conditions, contents and procedures of the announcement are not clear; thirdly, the legal liability and relief channels of illegal announcement are missing. Comparing with the legislation and judicial regulations of the United States, Japan and Germany, it is found that food safety consumption warning and due process, legal reservation and the principle of proportionality. This is a revelation to the perfection of China's food safety warning publication system. The legal path of food safety warning publication must be based on the classification, and the administrative cost and efficiency, the public health and safety, and the special third party procedure should be taken into account in the space of maximizing public welfare. Participation right and the cost and efficiency of judicial review can be carried out from three aspects: legislative structure, judicial review and administrative self-control. From the macroscopic point of view, we need to constantly integrate the legislative model of food safety consumption warning; from the microscopic point of view, we need to clarify the publishing subject, authority and procedure of food safety consumption warning, especially the specific setting of the publishing procedure. In order to ensure the effectiveness of the "tripartite" food safety warning announcement, priority should be given to the establishment of the reasons system, the hearing system and the time limit system, the three most critical procedures, so that stakeholders have the right to participate in the announcement process, to understand the relevant operational basis, process and results. In terms of investigation, it is necessary to clarify the suitability of food safety consumption warnings, the intensity of judicial review and the types of judgments from the perspective of the new Administrative Procedure Law. Secondly, the basic principles of administrative law are taken as the basis of the case of food safety consumption warning under the "legality review standard". On this basis, the intensity of food safety consumption warning with different contents can be properly distinguished. Finally, the victims of illegal food safety consumption warning can be weaved enough by the construction of litigation types. As far as administrative self-control is concerned, firstly, we should formulate administrative rules to refine the principles and standards stipulated by legislation; secondly, we should establish a platform for complaints and handling of erroneous information to improve the internal processing system of the administrative system; thirdly, we should give full play to the function of administrative relief and implement the accountability mechanism. It is probably the most effective way to regulate the announcement of food safety consumption warning.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.16
[Abstract]:The former is the founder of the consumption warning system, which establishes and perfects the information platform and the administrative organs that publish the food safety consumption warning by initiating the "consumption warning project" and formulating the "implementation standard of the consumption warning system" and other measures. In recent years, with the frequent occurrence of food safety incidents, administrative organs are increasingly inclined to adopt the publication and elimination method. Fee warning, a new type of pre-regulation means, effectively prevents and defuses the risks of administrative execution and social security. However, due to the particularity of the legal status of administrative organs, the absence of legal norms corresponding to food safety consumption warning and the narrow relief channels, once the food safety consumption warning is publicized out of order, it may be possible. It will cause irreparable damage to the publicized party and lead to the loss of social net welfare. "Farmer's Shanquan Arsenic Gate Incident" and "Jinhao Tea Oil Incident" are revealing many problems in the publication of food safety consumption warnings in China, which need to be effectively governed by law. In order to solve the dilemma of publishing food safety consumption warnings by administrative organs, we should restate the concept and nature of food safety consumption warnings from the basic connotation. It is pointed out that food safety consumption warning includes risk warning, illegal behavior warning and other information warning. In terms of its nature, it is recognized that food safety consumption warning belongs to the characteristics of factual behavior, but strives to weaken the distinct distinction between different types of administrative acts. It is suggested to re-examine it in a pragmatic manner. Starting from the angle of typology, this paper draws out the legal relationship subjects involved in food safety consumption warning in practice, and finds that the two types of food safety consumption warning have different operational mechanisms, namely "two-way" and "three-way" consumption warning. As the latter involves specific food producers and sellers, once the administrative organ mispronounces food safety consumption warnings, it will lead to abuse of administrative power, legal rights and interests of enterprises and damage to social welfare. From the perspective of legitimacy, the publication of food safety consumption warnings by administrative organs is the inevitable requirement of service administration, the protection of citizens'right to know, and the internal driving force to improve the efficiency of administrative actions. The provisions on food safety warnings are scattered in the food safety laws and regulations at all levels, and the lower the rank, the more intensive the food safety warnings are, and the more discretion is granted to the administrative organs. There are at least three problems: firstly, the subject and authority of the announcement are not clear; secondly, the conditions, contents and procedures of the announcement are not clear; thirdly, the legal liability and relief channels of illegal announcement are missing. Comparing with the legislation and judicial regulations of the United States, Japan and Germany, it is found that food safety consumption warning and due process, legal reservation and the principle of proportionality. This is a revelation to the perfection of China's food safety warning publication system. The legal path of food safety warning publication must be based on the classification, and the administrative cost and efficiency, the public health and safety, and the special third party procedure should be taken into account in the space of maximizing public welfare. Participation right and the cost and efficiency of judicial review can be carried out from three aspects: legislative structure, judicial review and administrative self-control. From the macroscopic point of view, we need to constantly integrate the legislative model of food safety consumption warning; from the microscopic point of view, we need to clarify the publishing subject, authority and procedure of food safety consumption warning, especially the specific setting of the publishing procedure. In order to ensure the effectiveness of the "tripartite" food safety warning announcement, priority should be given to the establishment of the reasons system, the hearing system and the time limit system, the three most critical procedures, so that stakeholders have the right to participate in the announcement process, to understand the relevant operational basis, process and results. In terms of investigation, it is necessary to clarify the suitability of food safety consumption warnings, the intensity of judicial review and the types of judgments from the perspective of the new Administrative Procedure Law. Secondly, the basic principles of administrative law are taken as the basis of the case of food safety consumption warning under the "legality review standard". On this basis, the intensity of food safety consumption warning with different contents can be properly distinguished. Finally, the victims of illegal food safety consumption warning can be weaved enough by the construction of litigation types. As far as administrative self-control is concerned, firstly, we should formulate administrative rules to refine the principles and standards stipulated by legislation; secondly, we should establish a platform for complaints and handling of erroneous information to improve the internal processing system of the administrative system; thirdly, we should give full play to the function of administrative relief and implement the accountability mechanism. It is probably the most effective way to regulate the announcement of food safety consumption warning.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.16
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