危害食品安全犯罪司法介入的法经济学分析

危害食品安全一类犯罪,从法律经济学视角分析存在明显的负外部性;从经济学的社会福利标准考量,欲消除外部效应必须司法介入。常见的司法介入包括提倡侵权损害赔偿、设置安全规则、禁止令及动用刑罚,司法介入应尽早尽快并以公力为主导。司法介入的手段可分为非金钱性处罚和金钱性处罚,非金钱性处罚的社会成本更高。以最优执法概率、最优处罚程度、过错责任原则为基准点,考虑在社会成本较低的情况下,以既有公平又有效率的规制为目标,金钱性处罚应结合当事人对处罚概率与处罚强度的认知以及其财富水平等实现威慑最优,非金钱性处罚应结合当事人财富水平、脱罪概率、预期损害等实现威慑最优。

Legal and Economic Analysis of Judicial Intervention on Crimes against Food Safety

Crimes endangering food safety have obvious negative externalities from the perspective of law and economics. Judicial intervention must be introduced in order to eliminate externalities of Crimes against food safety from the perspective of social welfare standards. Common judicial intervention covers advocating compensation for tort damage,setting up safety regulations, prohibition orders and using penalties. Judicial intervention should be held by public power as soon as possible. The means of judicial intervention can be classified as non-monetary punishment and monetary punishment. And the social cost of non-monetary punishment is obviously higher than that of monetary one. Based on the principle of optimal law enforcement probability, optimal punishment degree and fault liability,as well as considering the objective of fair and efficient regulation under the condition of low social cost,parties'knowledge of the probability, intensity of punishment and their wealth level are three factors which conbined by monetary punishment to achieve optimal deterrence;the wealth of the parties,probability of acquittal and expected damage are main factors that combined by non-monetary punishment to achieve optimal deterrents.