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诸多可能导致危害食品安全的风险行为并没有纳入刑法的规制,导致我国食品安全刑事法网存在疏漏,并诱发严重的食品安全事故。食品安全领域风险行为犯罪化,会突破在实害结果出现时才进行干预的传统刑法立场,是将风险规避义务前置的预防性立法。但将风险规避义务前置的预防性立法也因风险固有的两面性而遭到质疑。而借鉴衍生于英美法系之危害原则的间接危害行为,则可以消解风险行为的两面性,从而为严密食品安全刑事法网提供依据,并剔除理论分歧。食品安全领域间接危害行为可以分为抽象危险行为、介入行为和累积危害行为三类。但间接危害行为的犯罪化,导致间接危害行为人为并非自己行为导致的实害结果承担刑事责任,因此,并不是所有的食品安全领域的这三种间接危害行为都应自动犯罪化。从公平归责的角度审视,在间接危害行为犯罪化时,应受到间接危害行为的不正当性、间接危害行为和实害结果的规范联系、可能的实害结果的大小及是否可以通过共同犯罪进行惩罚的限制。
Many risks that may lead to endangering food safety are not included in the regulation of criminal law, leading to omissions in China’s food safety criminal law network and inducing serious food safety accidents. The criminalization of risk behaviors in the field of food safety will break through the traditional criminal law position that intervenes only when the actual result of harm occurs. It is a preventive legislation that takes risk aversion obligations as the precondition. However, precautionary legislation preempted by risk aversion is also questioned due to the inherent two-sidedness of the risk. However, drawing on the indirect hazard behavior derived from the principle of harm in Anglo-American legal system, the two sides of risk behaviors can be dispelled, which can provide the basis for strict criminal law of food safety and eliminate the theoretical differences. Indirect hazards in the field of food safety can be divided into abstract dangerous behavior, intervention and cumulative hazardous behavior three categories. However, the criminalization of indirect harm, which results in indirect harm, is not the criminal responsibility of the harm caused by the act. Therefore, not all the three indirect hazards in the field of food safety should be automatically criminalized. From the perspective of fairness attribution, when indirect criminal acts are criminalized, they should be subjected to the improper indirect act of harming, the normative connection between the indirect act of harming and the result of actual harms, the possible size of the actual result and whether it can be done through joint crime Limitation of punishment.