傳統刑法理論與現代風險社會――以我國食安法爭議為核心

Traditional Criminal Law Theory and Modern Risk Society: On the Dispute of Food Safety Act in Taiwan

我國近年來的食安問題不斷，而立法院每每為了因應各種新的疏漏與恐慌，而以火速修改食安法作為解決方案，其中，刑罰相關規定的修改與加重屢屢被視為一劑立可見效的良方，造成刑罰範圍不斷擴張，以及整體規範架構逐漸模糊，更導致與刑法基本理論脫節。為重新思考檢討此一趨勢，本文擬從下列兩點切入：首先，我國刑法理論源自歐陸，尤其受到德國法學所影響，對於犯罪以對於法益侵害與否，區分為實害犯與危險犯，對於後者再細分為抽象危險犯、具體危險犯以及介乎於兩者之間的適格犯。另一方面，源自風險社會概念而萌生的風險刑法，此一概念與產品責任之間的連結成為矚目的新興議題。然而，上述兩者的互相流動與混淆，造成立法與解釋的混亂不堪，食安法第 49 條即為如此。其次，對於食品安全的法制，近年來立法者採取的刑事思考侷限在處罰範圍之擴張與重刑，卻未對於食品問題的面向進行有系統的思考與分析，以最富爭議的摻偽假冒為例，其刑事處罰之正當性不斷受到學者質疑，因為此種行為未必造成消費者健康上的傷害。本文認為，應將食品問題所涉及的不同範疇，針對其特性探討危險犯之適用，重新整理思考食品安全刑法管制方式的適當性與比例性。

In recent years, due to frequent occurrence of food scandals, Legislative Yuan has amended Act Governing Food Safety and Sanitation several times to improve food safety. Among these amendments, criminal punishment has been regarded as an easy solution to this situation. This not only results in the expansion of criminal punishment applied to the regulation of food safety but also enables the regulative system of criminal law to distance from fundamental criminal theories. In this regard, this paper attempts to reconsider the system of criminal punishment regarding food safety from two aspects. Firstly, our criminal law, which is influenced by German criminal law, based upon the harm to legal interests. Crime can be categorized into two types: offence of causing an injury and offence of endangerment. The offence of endangerment can be further classified as abstract and specific dangerous offense. Criminal law concerning risks inspired by the prevailing concept of “risk society” has been paid more attention as it is connected with the product liability. Yet interpretation and legislation regarding regulations have become obscured by the mixed use of the concept of ‘risk criminal law’ (Risikostrafrecht) and the normative system of criminal law, especially when it comes to Article 49 of the Food Safety Act. Secondly, in terms of the legislation of food safety, law makers who have adopted the expansion of criminal punishments without considering this issue comprehensively has made a highly controversial legislation adulterated and counterfeited food. This legislation has been criticized by scholars as adulteration and counterfeit produce do not necessarily do harm to the health of consumers. Thus, this paper suggests that we reconsider the criminal legislation of food safety properly by classifying different categories of crimes involved in food safety and examining the interpretation about the offence of endangerment.