Research On The Construction Of The Compulsory Food Safety Liability Insurance In China

Although food safety has become a commonplace topic, what people are talking about is always updating. After the Sanlu milk scandal, the terrible food safety accident, broke out in 2008, the food safety problem was exposed to the government and public in an extremely terrible way. Since then, many similar news titles hit the headline in quick succession, reminding the public all the time: those attractive foods around us may not be safe. It might be insufficient to deal with such terrible food safety accident purely by the supervision of government and media, and it is necessary to adopt another system to protect the lawful rights and interests of the victim, enhance the consciousness of safe production and the compensation capacity of the enterprises, and ease the fiscal stress of the government. In recent years, calling on construction of the Compulsory Food Safety Liability Insurance(or simply as “Compulsory Food Safety Insurance”) system got stronger, scholars put forward some ideas too. Our government also once indicated to build this system, but finally chose the Commercial Food Safety Liability Insurance(or simply as “Food Safety Insurance”) instead in the new version of the Food Safety Law. This transition reflects the prudent attitude of the legislator regarding to the question whether to adopt the compulsory insurance model, but the author believes there are still certain necessity and feasibility to build the Compulsory Food Safety Insurance system.This paper tries to cut to the chase from the basic theory of compulsory insurance, and focus on the present situation and the deficiency of the Food Safety Insurance to show the necessity of building the system. After analysing the present development path, based on the legislation and practical experience of the Compulsory Traffic Accident Liability Insurance for Motor Vehicles(simply as “Compulsory Traffic Insurance”), the author discussed in details about the question regarding to construction of the system, trying to raise some feasible suggestions and making contribution for the construction in the future.In Chapter 1, starting from the relevant concepts of the Compulsory Food Safety Insurance system, the author analyses the basic theory of the liability insurance and the compulsory liability insurance, including the origin of the liability insurance, the initial controversy, and the legitimacy of the compulsory insurance summarized, in order to give readers a clear picture of the two kinds of insurance system. Then the author collects the relevant legal documents to reveal the transition process of the attitude from the legislator, leading out the analysis about the necessity and feasibility in Chapter 2.In Chapter 2, the author points out the necessity of the Compulsory Food Safety Insurance system is mainly about the insufficiency of the supply and demand and compensation capacity of the Food Safety Insurance. Based on the necessity afore said, the author discusses the feasibility from four respects. Firstly, the author illustrates the legal basis by analyzing the new Food Safety Law; secondly, he discusses the market basis by collecting those Food Safety Insurance filing on the Insurance Regulatory Bureau; thirdly, he points out the Compulsory Traffic Insurance, Compulsory Environment Insurance and other compulsory insurance system for reference; fourthly, he indicates that building the Compulsory Food Safety Insurance system in the future will has a lot of pilot experience through the relevant pilot guidance documents issued by the government. At last, the author discusses the development path from five aspects(insurance applicant, insurer, propagation, technology, and working methods), in order to lay the foundation for building the system.Chapter 3 and Chapter 4 are the core part of the paper, discussing the construction methods and specific contents respectively.Chapter 3 analyses the form of legislation, the principles of system and the business model on a macroscale. Firstly, referring the legislation form of the Compulsory Traffic Insurance and the defects of itself, the author points out that it is necessary to state the principle clause in the Food Safety Law and let the State Department making the administrative regulations to provide specific contents, by which the legitimacy of the system will be confirmed by the highest law and no contrast between higher law and inferior law will occur. This legislation form could avoid the problem when some questions occurred in practice request amendment of the regulation while the higher law has made the relevant restriction, which will cause the delay and difficulties to the amendment, even the obstacle and confusion during the system operation and judicial practice. Then, the author raises three principles for the system: firstly, protecting the victim shall be the core value and the primary purpose of the system; secondly, the level of protecting shall be basic rather than total; thirdly, by comparing the Compulsory Food Safety Insurance with the Compulsory Traffic insurance, it is necessary for the government to do more supervision upon the food safety problem and connect the result of daily inspection upon the operator with the premium rate. Then, by analyzing the business model of compulsory insurance, the author suggests to choose commercial business model with government subsidies and preferential policies.Chapter 4 is about the specific contents of the system, including insurance applicant, insurance liability, premium rate, compensation method and rescue fund. Firstly, by showing the current situation of the food industry, the author suggests to choose three kinds of applicant, namely the producers and processors of the key food industry, collective catering providers and internet food providers. Secondly, the scope of responsibility shall only include medical expenses, the food safety accident caused by illegal action shall not be excluded by the system, and the limitation of responsibility shall be counted on the victim rather than the accident. Thirdly, the standard premium rate shall be preset on a break-even basis and by taking the difference of the food industries, with an adjustment mechanism by counting on the number and situation of the accident caused by the applicant and the result of the daily inspection made by the government. Fourthly, the direct claim right of third party shall be added as a fast compensation method, based on the affirmed liability. Fifthly, the rescue fund of food safety accident shall be established, of which the liability shall be the same as that of the Compulsory Food Safety Insurance.There are three innovative points in the paper. Firstly, the author collates all those relevant legal documents in order to reveal the transition of the legislator’s attitude towards the system, and analyses the development path and feasibility of the system. Secondly, when discussing the necessity of the system, the author focusses on the defects of the Food Safety Insurance. Thirdly, the author takes full account of the Compulsory Traffic Insurance and the pilot documents of the Food Safety Insurance, in order to discuss the contents of the system in details(including insurance applicant, insurance liability, premium rate, compensation method and rescue fund). The main deficiency of the paper is the lack of discussing the supporting system of the Compulsory Food Safety Insurance(because of the length of the paper), which the author will keep study and research in the future.