Point of view | The determination of "toxic and harmful" in the crime of producing and selling toxic and harmful food.

Published:

2021-12-11

Abstract: The crime of producing and selling toxic and harmful food is an important crime of food safety. The key to the identification of this crime lies in the subjective and objective determination of "toxic and harmful. The objective level requires that the non-food raw materials must be able to cause harm after human consumption in quality, and must reach a certain degree of impact on human health in quantity. The subjective level requires that the perpetrator be aware of the toxicity. Keywords: toxic and harmful knowingly identified The "Criminal Law Amendment (VIII)" has revised and improved the crime of producing and selling toxic and harmful food, increased the penalty, and strengthened the protection of food safety. However, there are still many uncertainties in how to determine "toxic and harmful" in judicial practice. The place. Based on the actual experience of handling cases, this paper makes a detailed analysis of the criteria of "toxic and harmful" from the perspective of criminal law hermeneutics, with a view to benefiting the application of this crime. Objective Level of 1. -- Definition of Toxic and Harmful The key to the identification of the crime of producing and selling toxic and harmful food is "toxic and harmful". If the mixed non-food raw materials are non-toxic and harmless, then it does not constitute a crime. If the mixed non-food raw materials do not meet the safety standards, then it constitutes the crime of producing and selling food that does not meet the safety standards. In the provisions of the crime of producing and selling toxic and harmful food stipulated in Article 144 of the Criminal Law, there is no clear definition of the toxic and harmful nature of food, so it is necessary to carefully interpret "toxic and harmful". So as to correctly delineate the boundaries between crime and non-crime, this crime and the other crime. According to the provisions of the Food Safety Law, food safety means that food is non-toxic and harmless, meets the due nutritional requirements, and does not cause any acute, subacute or chronic harm to human health. From this article, we can conclude that toxic and harmful means that it does not meet the nutritional requirements and causes any acute, subacute or chronic harm to human health. Some scholars also pointed out that "food safety refers to the situation that will not cause any damage to consumers when used by consumers in accordance with the intended use." Therefore, toxic and harmful should be understood as food that causes harm to human health and does not meet the standards for human consumption or drinking. Does this mean that as long as non-food raw materials contain toxic and harmful ingredients can be identified as a crime? In real life, food contains certain toxic and harmful substances is completely normal. At present, there are about three thousand kinds of food additives, and most of them are toxic and harmful, but the country has not banned the addition of additives to food because of these toxicities, because appropriate additives can make food more delicious and more beautiful., The preservation time is longer. Obviously, we cannot think that as long as there are toxic and harmful ingredients in food, we must be recognized as a crime, and we must also clarify the degree of toxicity and harm required. (I) toxic and harmful judgment data Non-food raw materials themselves are toxic and harmful, and they also bring harm to the human body after eating. For those non-food raw materials that are toxic and harmful and will cause harm to the human body after eating, they should naturally be regarded as toxic and harmful. This is not controversial. Non-food raw materials themselves are toxic and harmful, but they will not cause harm to the human body after eating. Do non-food ingredients that are inherently toxic but do not cause harm to the human body after consumption fall within the scope of this crime? The author believes that although this crime is a crime, it does not mean that it does not require any degree of requirement. In this case, because it will not produce results that harm the society, it does not have social harm, and it does not meet the toxic and harmful standards in the crime of producing and selling toxic and harmful food. 3, non-food raw materials itself non-toxic, harmless, but after eating to bring harm to the human body This situation needs to be discussed on a case-by-case. The first is to eat or drink food caused by their own reasons. There are two kinds of situations, one is that consumers eat or drink too large a dose and lead to poisoning. The second is that for those who have a special constitution, their consumption of food containing certain non-food raw materials has caused damage to health, and ordinary people will not cause harmful results after eating. We believe that the above two cases of non-food raw materials do not meet the toxic and harmful standards. The reasons are as follows: first of all, the health problems of the eaters who do not eat or drink food according to the dose are caused by their personal reasons, not by the behavior of the perpetrator. According to the responsibility doctrine, this harmful result can not be attributed to the perpetrator, so it can not be regarded as a crime. Secondly, everyone's physical condition is different. If the eaters have health problems due to their own physical fitness, we naturally cannot pursue the criminal responsibility of the perpetrator. The second is that the non-food raw materials themselves are not toxic but react after compounding, resulting in the production of toxic and harmful substances. This situation needs to be based on the premise that the perpetrator knows that chemical changes will occur and produce toxic and harmful elements. If the perpetrator does not know that it will react to generate toxic substances, it should be regarded as an accident and should not be regarded as a crime. Contrary to this situation, non-food raw materials are inherently toxic, but when non-food raw materials are mixed into food, chemical changes occur between non-food raw materials and food or in the case of compound addition, making food non-toxic. This situation also requires the perpetrator to know that non-food raw materials will produce chemical changes after the addition of food non-toxic, otherwise it is purely accidental coincidence and lead to non-toxic, but the perpetrator's understanding of the error, still constitute the crime, but in this case may be established is the attempted form of this crime. Defining Standard of (II) Toxic and Harmful Through the above discussion of toxic and harmful judgment data, we think that we should grasp the standard of toxic and harmful identification from the two levels of quality and quantity. Qualitative requirements. The non-food material must be capable of causing harm after human consumption. Here to exclude the consumption of personal reasons for the harm caused by the situation. In addition, this crime is a crime does not require the actual harm results, but requires toxic, harmful to be highly closely related to the harm to human health, for those who are toxic but will not cause any harm can not be identified as this crime. amount of requirements. Poisonous ingredients must reach a certain degree of impact on human health. Food should not contain factors that cause harm to human health, but this does not mean that food cannot contain any harmful ingredients, but that the content of harmful ingredients cannot reach the level that can cause harm to human health. Some non-food raw materials themselves are indeed harmful, but their quantity is not enough to cause damage or threat to human health, so this non-food raw material does not meet the requirements of toxicity and harm, and cannot be used as a prerequisite for conviction. 2. the subjective level-the actor should know that it is toxic and harmful. Is toxic and harmful a knowingly content? Some scholars believe that in determining the subjective aspect of the crime of producing and selling toxic and harmful food, the perpetrator can only be required to have knowledge of the incorporation of non-food raw materials, not knowledge of the toxic and harmful nature. If the producers and sellers are required to know the toxicity, it will undoubtedly put forward extremely high requirements for the subjective cognition of the criminal subject, which will bring great difficulties to the identification of the crime. The nature of raw materials, on the other hand, is the basis of the rationality and cognitive rationality of the behavior of producers and sellers. Some scholars have even pointed out that when judging the subjective aspect of the perpetrator, the perpetrator only needs to have a general understanding of the harmful consequences of his own behavior, and does not require the perpetrator to have a detailed understanding of the chemical properties and toxicity of the added substances. According to the general theory of criminal law, whether directly or indirectly intentionally, its "knowingly" is the understanding of the harmful result. Knowing should contain two levels of content: the factual level and the value level. The so-called factual level is that the behavior has an understanding of the facts of its own behavior, including the understanding of the nature of the behavior, the way of behavior, the object of the behavior, the time and place of the behavior, the result of the behavior, etc. Specific to this crime, on the factual level, the actor realizes that he is mixing toxic and harmful non-food raw materials into food or selling toxic and harmful non-food raw materials. On the value level, the actor realizes that the behavior of mixing or selling toxic and harmful non-food raw materials will harm the society. In fact, at the factual level, it can be subdivided into the knowledge of "non-food raw materials" and the knowledge of "toxic and harmful", and it is based on the knowledge of "toxic and harmful" that can identify the actor's knowledge at the value level, that is, the actor can come to the conclusion that it may cause harm to the health of others when he recognizes the toxicity, however, the mere understanding of "non-food raw materials" cannot be established as a result of the harm. This crime, as a criminal act, does not require the reality of the harmful results, as long as the perpetrator has carried out the constituent elements of the act can be identified as a crime, and the criminal law can be separated from the harmful results of the actor's behavior to evaluate, it is precisely because of the high degree of closeness of the act and the harmful results and early intervention. Only the behavior can reflect and harm the results of the close correlation can be identified as a crime. If it is only recognized that the incorporation of "non-food raw materials" does not reflect the high correlation between behavior and harmful results, only by recognizing that the incorporation of non-food raw materials is "toxic and harmful" can the behavior and results be demonstrated. High degree of tightness. It should be noted here that the fact that the elements of the act do not contain the harmful result does not mean that the perpetrator is unaware of the result of his act and the nature of the result. If the crime of invading a house is a typical behavior offender, as long as the perpetrator implements the act of invading another person's house, it should be considered a crime, without asking whether the reality has caused damage to the right of tranquility of another person's house, but the perpetrator has obviously realized that what he implements is the act of invading another person's house and this act will affect the tranquility of another person's house. If it does not include knowing the result of the harm, the perpetrator should also be considered a crime if he only visits the owner's home. The main reason why some people question whether "toxic and harmful" should be known as the content of this crime is that if the perpetrator is required to have an understanding of the harmfulness of the result, he will often use this as an excuse to defend himself. I did not realize that my actions would cause consequences harmful to society, which caused difficulties in intentional identification. The author believes that it is difficult to identify in judicial practice as a reason to deny that "toxic and harmful" is not the known content of this crime. First of all, there are many difficulties in the identification of criminal law. For example, what is a dangerous state is still a question of wisdom, and practice and theory cannot be confused. Secondly, intentional identification is a process of unity of subjectivity and objectivity. It is necessary to listen to the perpetrator's justification, but also to judge objectively. The perpetrator's one-sided statement should not be considered to be subjectively intentional, but also to grasp his subjective guilt through the objective aspect. Secondly, it has been discussed in the previous article that only knowing that "non-food raw materials" does not reflect people's understanding of the harmful results of their behavior. Only when they have an understanding of "toxic and harmful" can they be considered to have recognized the social harmfulness of their behavior. Finally, only by recognizing the "toxic harmfulness" can it reflect the greater subjective malignancy of human beings. Knowing that "non-food raw materials" and knowing that "toxic and harmful" is actually a layered relationship. Only when the perpetrator has a second knowing, can his subjective malignancy reach the level of conviction. As for the view put forward by some people, only the actor needs to have a general understanding of the harmful consequences of his own behavior, and does not require the actor to have a detailed understanding of the chemical properties and toxicity of the added substances. If the perpetrator has already been aware of the harmful consequences of his actions, how can he not be aware of the "toxic and harmful" nature of the non-food ingredients he is mixed with? Since it is admitted that the perpetrator should be aware of the harmful results, it is necessary to admit that he knows "toxic and harmful".

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