System Construction Of Compulsory Food Safety Liability Insurance Based On The Analysis Of Theory Of Interests Balancing

The implementation of pilot project of compulsory food safety liability insurance initiated the practice to use the method of compulsory insurance to strengthen food safety governance.It provides important and effective method to promote transformation of government functions and strengthen safeguard to victims.However,for the sake of restricting liberty of contract,and lacking of successful experience to use for reference,compulsory food safety liability insurance has been debating about whether and how to carry out.Reflected in legislation,it’s a difficult choice between encouragement and enforcement in the amendment of Food Safety Law.Though compulsory food safety liability insurance hasn’t been affirmed by the amendment of law for consideration of caution,its development prospect is still worth anticipating,which can be concluded by synthetically analyzing the factors of insurance market failure,policy guidance,food safety governance and legal environment.Of course,the more important problem is to establish its system scientifically,which can make compulsory food safety liability insurance function better.The course of system construction of compulsory food safety liability insurance is the course of rules-making and establishment of legislation system.Because complicated interests and interest relationship are concerned,only can we create necessary precondition for the adjustment of interests and interest relationship by interest recognition,comparison and choice.Meantime,only can we manifest legitimacy of compulsory food safety liability insurance by promoting interests harmony and balance of related bodies.Accordingly,the theory of interests balancing can become important methodology for system construction of compulsory food safety liability insurance.For the limitation of the theory,we should improve its effectiveness by some methods during the course of application.Then the thesis will analyze system rules of compulsory food safety liability insurance from the angle of balance configuration of power,right and liability,andput forward countermeasure and suggestion to perfect its legislation system based on interests balancing,the practice of compulsory food safety liability insurance and China’s reality by making the theory of interests balancing a basic analysis tool,and synthetically using related subjects’ theory and methods.According to the above thinking and contents,the thesis sets to research from five parts.The first part researches on theory of interests balancing and its analytical framework.The course of legislation is also the course of interests balancing.Therefore,theory of interests balancing can be used in interests balancing during the course of legislation.When the theory of interests balancing is integrated with the context of legislation,it is specific in the contents.As a methodology of legislation,the guiding function of the theory can play better by teasing out its contents.From the angle of legislation,contents of the theory of interests balancing mainly include meaning and features of interests balancing in legislation,and scope,basic principles,principal methods and safeguard mechanism of interests measurement etc..In analytical paradigm,the theory of interests balancing can promote development of interests balancing in legislation and legislation itself mainly by interest recognition analysis,interest weigh and comparison analysis,and interest balance mechanism analysis.The second part is about interests balancing of compulsory food safety liability insurance.According to the theory of interests balancing,the interests concerned in compulsory food safety liability insurance include system interest,insurance parties’ specific interests and group interest,the third party’s specific interests and group interest,and social public interest.We can draw a conclusion from the analysis of cost and benefit,proportionality principle and system mechanism that the system interest of compulsory food safety liability insurance have economy and rationality,the means of implementing system interest have appropriateness,and the implementation of system interest can get effective guarantee.Meantime there are interest conflicts among different subjects of compulsory food safety liability insurance.The interest of the third party should be given priority to protect,and other subjects’ interests should also be protected as well.In order to make the system function of compulsory food safety liability insurance better,interest balance among subjects should be achieved by interest balancing configuration of state power and insurance subjects’ rights,insurancesubjects’ rights and obligations,state power and insurance subjects’ obligations.The third part is about review and introspection to practice of compulsory food safety liability insurance.There are profound economic background,political background,legal background and social background behind compulsory food safety liability insurance.The pilot projects of compulsory food safety liability insurance in China can be divided into rapid development stage and continuous exploratory stage.In total,the pilot projects have the common features of mainly aiming at high-risk and key enterprises,adopting the mode of combining government-led with market-oriented,confirming insurers mainly by government appointment,encouraging insurers to innovate products.And the development of compulsory food safety liability insurance in China still faces many problems which includes inadequacy of upper laws,lacking rationality in some rules,imperfection in rules of interest protection of insurance subjects,lacking regulations of legal liability etc.,which need to be perfected further.In addition,“need for victim’s basic safeguard” should be the boundary of government control and market autonomy.The model of “practice prior to legislation improvement”has its objective necessity.And fiscal taxation policy is very important in development of compulsory food safety liability insurance.The fourth part analyzes the system rules of compulsory food safety liability insurance.The design of system rules of compulsory food safety liability insurance should comply with basic ideas of its system.The basic ideas include idea of victim as the center,idea of combination of appropriate government intervention and market-oriented operation,and idea of interest combination and balance.Then we can design the system rules of compulsory food safety liability insurance based on balancing configuration of power and obligation,rights and obligation,power and rights.The first one includes rules to confirm policy holder,rules to confirm insurance coverage,rules to confirm insurance rate,and rules to confirm insurance exclusions.The second one includes rules of direct action rights of the third party,rules of participation rights and subrogation rights of insurer,and rules of insurance contract’s change and transfer.The last one includes rules to confirm insurers,rules to confirm insurance liability limit,rules to sign insurance contract and rules to terminate contract etc.In addition,in order to regularize related insurance parties’ behavior,protect their interests and social public interests,civil liability of violating rules of compulsory food safety liability insurance should bestipulated.The fifth part is about construction of legislation system of compulsory food safety liability insurance.The system construction of compulsory food safety liability insurance can’t leave without guarantee of legislation system.Our country should positively create legislative condition to revise and perfect present laws step by step so as to provide an excellent legal environment for system construction of compulsory food safety liability insurance.In order to give consideration to both uniformity and flexibility of legislation,we should distribute legislative authority of compulsory food safety liability insurance between central legislature and local legislature scientifically.On this basis,relevant regulation of Insurance Law and Food Safety Law should be perfected further.When conditions are ripe,special legislation should be made.Under the present legal environment,legislation experience of compulsory liability insurance for environmental pollution can be used for reference,or we can apply the method of “kind of force”and “force in fact” to promote development of food safety liability insurance,gather experience and create conditions for legislation of compulsory food safety liability insurance by perfecting local laws and regulations,and administrative supervision system for food safety.