On The Right Of Food Safety And Its Legal Protection

The food safety is a foundation of mankind existence and development, and it relates to the benefit of every consumer and the stability of the society. However, in recent years, the food safety problem takes place repeatedly, and the food poisoning and death toll is of up-trend year by year. Currently, the food safety problem has already been the concern of the society, so it has become an important social problem that our country has to make an effort to resolve. The scholars discourse upon the problem from the point of the public management, the sociology, the law etc. In order to resolve the food safety problem, the writer puts forward the concept of "the food safety right" which is the core category of the research, and study the problem from the point of law guarantee for "the food safety right".Considering the actuality of our country food safety, the law protection for "the food safety right" have to contain threes aspects: civil relief mechanism, administrative protection mechanism and criminal law protection mechanism. This text discusses firstly the related factor of food safety problem, and then put forward the concept of "the food safety right", analyse the property of this right, and elaborate briefly the important meaning of protecting "the food safety right". Next, this text discusses the protection of "the food safety right" from perspective of civil right relief, which means that people's assertion to their right is important for resolving food safety problem of whole society. Thirdly, this text discusses administrative law protection of "the food safety right", and it can be realized from three aspects: consummating supervising system of food safety, standard system of food safety and responsibility system of administrative law. Finally, it continue discusses how to protect "the food safety right" in criminal law, with the thinking way of protecting in public law. The research path of the full text is from private laws guarantee to public law guarantee, from social individual protesting the right relief to national power protection. The full text is divided into four parts.The first part of the text analyzes the concept of "the food safety right", then carry on analysis about the main factors of the food safety problem. The main reasons contain the environment pollution from industrial production, agrochemical hangover, making false spitefully, food safety problem with new food craft and raw material such as transfer-gene food. Then, the text analyses law predicament of the food safety problem. It mainly includes lack of food safety consciousness, conflict between law and statute, faultiness in supervising system and scarcity in punishment. Aiming at these reasons, this text put forward the concept of "the food safety right". "The food safety right" is the right that is prescribed by the food safety law and took by people in food consumption. "The food safety right" is a legal right on the defination of right, it comes from consumer right, while surmounts it. It is consumer survival right in the essence, and it needs to be protected by mechanisms of civil law, administrative law and criminal law. Finally, the text analyses the important meaning of protecting "the food safety right" from improving human rights guarantee, society stability, the exaltation of the economic order and foreign trade and the national soft strength in the international competition.At the second part, this text discusses the civil protection mechanism of "the food safety right". At this part, this text mainly discusses three problems: the civil law protection's condition and blemish of "the food safety right", the civil law protection mechanism's consummation of "the food safety right", and the civil law protection mechanism's limitation and outlet of "the food safety right". We find that it needs to announce "the food safety right" definitely first to consummate the civil relief mechanism of "the food safety right" through the study of the right from consumer to operator, when reviewing the civil law protection's condition of "the food safety right"; Secondly, it needs to enact the responsibility of aggrieving "the food safety right" as a kind of special tortious responsibility which is independent from product responsibility; Then, it must modify the provision of unaccountable reasons of operatorthat in the went behind of responsibility, and it should not let consumer undertake the risk of production development. Furthermore, we need to have new understanding about the function of indemnity, increase the degree of indemnity. However, civil law ensures equality according to equality, but it is not enough for the protection of "the food safety right" depending on the civil law only. Because food consumer and operator aren't equal in substances.The third part of the text discusses the administrative protection and its consummation of "the food safety right". At this part, this text reviews the administrative protection's condition and blemish of our country "the food safety right" from three aspect: administrative main body, administrative basis, and administrative responsibility. In the administrative main body system, our country department of supervising food safety have been had a responsibility system of food safety supervisement, but there are still serious problems in the food safety supervisement, such as many departments enforcing the law, mutual buckpassing, low efficiency in enforcing the law and the local protectionism. In the food safety standard system, our country standard system construction of food safety has certain scale, but there are also some problems: the system structure's design is not scientific and reasonable enough, the function and maneuverability are bad, the proportion of advanced standard is low, and there are repeated or self-contradictory standards etc. In the administrative law responsibility system of food safety, the administrative law responsibility constitution for administrative operator is over simple, the free judgement right of law enforcer is too big and administrative punishment is low universally. In order to consummate the administrative protection mechanism of "the food safety right", we need to change the mode of economic development, review our assessing mechanism of local government achievement, establishment《food safety law》with setting up perfect food safety standard system and administrative responsibility system, and make corresponding policy and law for small operators.The last part of the text discusses about criminal law guarantee of "the food safety right". The criminal law guarantee can be embodied mainly from two aspects: running the food safety crime of the food market operator and the misprision crime of law executor in the food safety supervision. The valid path of consummating criminal law guarantee of "the food safety right" is to set up "endanger food safety crime". In the discussion about establishing "endanger food safety crime", we consider that the suppresses of criminal law is people's reasonable choice for criminal law's development direction according to the protection human rights and need for society developement, and is the symbol of criminal law getting rid of wildness and making for civilization. But, the choice on the value is made according to the demand of social development, so under the background of our country food safety problem increasingly outstanding currently, establishing "endanger food safety crime" in criminal law with strengthening criminal law protection for "the food safety right", has no damage in the modern ciminal law suppresses, and accord with the development trend of criminal law. So, this text discusses the crime composing of "endanger food safety crime", the penalty configuration and the lawmaking mode etc. In the end, this text make an outlook for the criminal law protecting of "the food safety right".