| Formal judicial phenomenon widely exists in the judicial practice of the crime of producing and selling poisonous and harmful food.From the analysis of the precedent documents,it can be found that this formalized phenomenon is not created intentionally by judicial or administrative organs,but is an improper application derived from the combination of mechanized justice and imprecise judicial interpretation.Among the public cases on the crime of producing and selling poisonous and harmful food from January to June 2021,there are nearly 400 such formalized cases represented by the Sildenafil case and the poisonous bean sprout case,accounting for half of all cases.The above shows the seriousness of formal judicial misconduct.This paper hopes to analyze the formation and harm of this formalized phenomenon through empirical research based on precedent documents,and provide corresponding solutions.The task of the first chapter is to resolve several issues that are the premise of the critique of formal justice before proceeding with the discussion of the phenomenon of formal justice.The first is the formalized justice actually exists or not.This is the premise of all subsequent discussions.Therefore,it is necessary to confirm the claim that "formalization exists in judicial practice" based on the judgment documents.The second is the issue of the protection of legal interests of crimes.The formalized conclusion of judicial practice is based on the protection of life,health and safety.Therefore,it must be demonstrated that although the crime is located in Chapter 3,the market order is not the object of protection or the main object of protection of the crime.Third,there is the issue of food properties of sildenafil.The precedent of the sildenafil case is the most important empirical basis in the follow-up discussion,so it is necessary to find out in advance whether the health product containing sildenafil is a food,and the dispute over the food and drug properties of sildenafil health product is its sample value Impact.The second chapter discusses the disadvantages of formalized application from the perspective of theory and practice.In the part of theoretical critique,first of all,clarify what is the difference between the "formalization" we oppose and the "formalization" of abstract dangerous criminals widely existing in the current criminal law.Secondly,it discusses the problem of inconsistency of criminal law and the confusion of execution caused by formalization,and makes an in-depth analysis of the uniqueness of the problem of confusion of execution and execution in this crime and its causes.The part of practical critique is different from theoretical critique in that it focuses on problems that are difficult to discover through theoretical deduction and only fully exposed after practical application.The first is the incompatibility of the crime and punishment caused by the "bottom" of the penalty,that is,the problems of "misdemeanor heavy punishment" and "same punishment for different crimes" caused by the limitation of the sentencing range and the excessively minor circumstances of the convicted act reflected in judicial precedents.The second is the problem that the general preventive effect cannot be achieved.The punishment targets of the precedents are concentrated on the sellers who cannot be expected to have the knowledge of illegality.At the same time,the proportion of intermediaries and producers being prosecuted is low or not prosecuted at all.Therefore,even if it is formalized and excessively criminalized,it is still impossible to punish potential buyers.The perpetrator forms a deterrent.Chapter 3 discusses solutions to formalization problems.The first is to focus on the crime plan of the individual case.There are two ways to prevent illegality and responsibility.Among them,illegal obstruction but obtaining the reason for guilt is likely to cause the public to question the judicial organs’ "different sentences for the same case",so the way of guilt through liability obstruction is more appropriate.The second is to focus on the system-oriented criminalization scheme,which is more realistic than the first scheme.Legislation or judicial interpretations should be used to overturn the judicial interpretations that were defective in the past,and the practice of completely formalizing criminal law value judgments and entrusting them to administrative conclusions should be abandoned.A judgment method exclusive to criminal law should be established,and substantive judgment should be introduced into the identification of poisonous and harmful foods by the screening method of double value judgment. |
