【作者】 杨德明；

【导师】 张旭；

【作者基本信息】 吉林大学 ， 法律， 2010， 硕士

【摘要】 食品安全是人类生存和发展的基础,它关系到每个社会公民的身体健康、生命安全和社会的稳定与和谐。随着我国市场经济的发展,人民生活水平的日益提高,在充分保障食品供给的同时,食品的安全问题不断凸现,保证食品安全已经成为我国经济社会未来发展中所面临的一大难题。食品生产的机械化和集中化以及新技术和新型食品添加剂的广泛使用,不论是发达国家还是发展中国家,都存在着食品安全问题爆发的隐患。随着《食品安全法》的实施,我国的食品安全法律保障体系得到了进一步完善。刑罚制裁手段的严厉性和高成本使《刑法》作为调整社会关系的最后手段,在保障食品安全的过程中起到了举足轻重的作用。我国现行《刑法》通过调整市场中的食品生产、经营者的行为和食品安全的监管主体的行为两方面实现对食品安全的有效调控。但是目前这两方面的规定都存在不足之处,值得我们进一步研究。本文通过分析三鹿奶粉一案,审视现行的食品安全刑法保护体系,并力求找到当前食品安全监督管理体系中刑法规制方面存在的不足,并提出相应的修改意见以及促使食品安全刑法规制体系进一步完善的构想。更多还原

【Abstract】 Food safety is the foundation of the hunman survial and the development, and itrelates to the health of every member of society, life safety and social stability andharmony. In today’s rapid economic development, food safety issues has become aworldwide problem. Mechanization and centralization of food production, as well asnew technologies and new food additives, have become the outbreak of food safetyhazards. Recent years, China’s food safety incidents often occur, particularly，Sanlumilk case, with its great social harm and wide influence hurts the people’s fragilenerves once again, and almost capsized the whole dairy market. With the "Food SafetyLaw", China’s food safety system of legal protection has been further improved. Withthe severity of criminal sanctions and the cost, Criminal Code has been the last resortto adjust social relations. Criminal Law Protection of food safety become a focus ofscholars and community hot spots once again. The writer try to research on China’scurrent criminal law on food safety protection system from the analysis of the case ofa conviction and sentencing to start, from the perspective of criminal law theory.Throughout the legal system of food safety, food security, effective protectionneeds for a comprehensive and systematic protection system, while criminal law is thefinal barrier. Criminal law on food safety regulation, to correctly handle the "criminal"and "Food Safety Law" relationship, to achieve the organic unity of the two. Thepromulgation of the "Food Safety Law" laid the foundation for the criminal legislationimprovement. This paper introduces the basic concepts of food safety, and brieflydiscuss the nature of the crime. The next，Examines the current criminal lawlegislation in food safety. Again，with the analysis of existing laws, regulations of foodsafety legislation and the convictions of Sanlu milk，try to find the limitations andobstacles of current criminal law on food safety protection system，and find foodsafety aspects of the lack of criminal legislation. Finally, find the basis of inadequatelegislation, based on China’s national conditions and legislative situation, and to fullylearn from the advanced experience of domination and maneuverability as the purpose,the legislative proposals accordingly. The paper is divided into three parts.This article first describes the food safety and food security concept of crime.First, the concept of food security has not yet been unified and clear. The writerbelieve that food safety, should be broadly interpreted. Food should be not only harmless to meet their nutritional requirements, no harm to human health, meet thesecurity needs of human consumption, but also the new science and technology impact,and really the whole process, all-round security. In addition, food safety supervisionin the past is a disorder complicated situation, in each other constantly with the sametime reflects the many shortcomings of this management model has become aconstraining bottleneck in food safety supervision work. Therefore, food safety shouldinclude food safety supervision system which should be increasingly improved.Secondly, there is no doubt that food safety violations crime to the socialist marketeconomic order, which has the nature of economic crime. We should say that inviolation of China’s socialist market economic order, while also damaging the nonspecificfood consumption risks majority of personal health and safety. Therefore,such crimes have the general characteristics of crime against public security. Again,inspection of food safety in China’s Criminal Law Legislation, analysis of China’sexisting food laws and regulations of the Department, as well as inadequate foodsafety standards are not uniform, weak awareness of consumer rights protection, rightsprotection system is not perfect, activists and other difficult.The second part, by existing laws, regulations, inspection of food safetylegislation and the conviction and sentencing of Sanlu case analysis, we see theproblems in food safety legislation. First of all, our food security in the laws,regulations, conflicts between. In particular, between the existing "Criminal Law" andthe new "Food Safety Law", due to the time difference, contradictions more acute.Second, the technical identification of cases of food hygiene have constraints. The testskills can not meet the needs of economic development, testing methods and testingequipment is relatively backward, national and international standards test gap,detection capability still needs to be improved. Finally, China’s current Criminal Codeprovisions are lack of operability. The penalty amount in accordance with the "salesvalue" approach in practice to determine the lack of enforceability and the food isdifficult to define Dangerous crime has become crucial.The third part, based on China’s national conditions and legislative situation, andto fully learn from the advanced experience, propose the appropriate legislativeproposals. First, a clear criminal law protection of food safety need to be perfected. Onthe nature of the crime against food safety was further defined. Comparison of foodsafety in administrative fines and criminal penalty, however, and put forward a soundidea. Selected do not meet nutritional standards to food and genetically modified food as the object of a special judge of food crime. Units of food law on the circumstancesof this crime were discussed. Secondly, the Criminal Law of China food safetylegislative proposals. Food safety legislation in the future work, should be further foodsafety law and criminal law to achieve an effective docking, speeding up the progressof the legislative food crime of dereliction of duty, reasonable absorb foreign advancedtechnology of legislation, and international coordination of food safety laws andregulations, and should be further reflect the human and practical.更多还原