論食品刑法保護之健康法益內涵及其構成要件：一部風險刑法的立法正當性追尋

Conceptualising the Legal Interest to Health in Criminal Food Law and Formularising Its Elements: A Research on Legislative Legitimation of a Risk-Based Criminal Law

健康法益是食品刑法的保護核心與原始出發點這一點，應該是無庸置疑的。相較於刑法傷害罪所保護的健康法益來說，兩者也顯然不具有完全相同的內涵。因為如果刑法傷害罪正是保護健康法益的實害刑法的話，目前的食品刑法則無疑是一部針對健康法益保護所設計的風險刑法。但也正因為這一點是如此地理所當然，以至於作為食品刑法保護對象的健康法益究竟有何獨立意義與內涵，卻少有人指明。本文之目的在於回歸到食品刑法的最原點，指出食品刑法中所保護的健康法益定性之重要性，並探討健康法益的規範面與現實面基礎，以指出其具體內涵。透過此一健康法益的具體內涵確認，正可以劃定食品刑法所掌握的個別風險之最低要求，以及其作為一部風險刑法的正當性界限。最終則可確認食品刑法為了保護健康法益，得以如何藉由實害犯與危險犯的層級化構想，體系性地制訂其構成要件。透過此些食品刑法未來的立法準則，可以指出現行食品安全衛生管理法的刑罰規定之缺失，以及其規定未來重新立法時的參考依據。

It is undisputed that the legal interest of health is the core and starting point of criminal food law. The content of the legal interest in health is not entirely identical to the offence of bodily injury. While the offence of bodily injury presents itself as a criminal offence of injury for the protection of health, criminal food law is a risk-based criminal law with the same objective. This is so self-evident that the legal interest of health in criminal food law does not seem to require explanation. This article aims to return to the most original point of criminal food law, to point out the importance of the qualitative nature of health legal interests protected in criminal food law, and to discuss the normative and practical basis of health legal interests to conceptualise their specific connotations. The concept of the legal interest in health at issue is considered as an individual legal interest which aims to protect people from the risks in relation to problems arising from consuming food. Through this, it is possible to delineate the minimum requirements for individual risks mastered by the criminal food law, and its justification as a risk-based criminal law. Ultimately, it can be confirmed how the criminal food law can systematically formulate its constituent elements through the hierarchical conception of actual and dangerous offenders in order to protect the health legal interests. On the basis of the principle of determination and the principle of proportionality, it is suggested to use the type of offence of suitability when applying the abstract hazardous offences. In this case, the essay will clarify how the elements of fitness should be formed in the constitutional requirements of the criminal food law. Through the future legislative guidelines of these criminal food laws, it is possible to point out the lack of penal provisions in the current Act Governing Food Safety and Sanitation and the reference basis for their provisions in the future re-legislation. In view of the principle of clarity and the principle of proportionality, in the application of abstract dangerous offenders, it will be suggested to use the appropriate offenders as the legislative model. Here we will clarify how the elements of fitness should be formed in the constitutional requirements of the criminal food law.