| Along with the rapid development of socialist market economy, people's living standards have been improved significantly. However, the invisible hand of market regulation, some criminals have to seek illegal interests, caused consumers to life, health safety is at stake, in food production, marketing links adulterated or mixed with income may lead to food poisoning or serious disease and harmful non-food raw materials. Such a behavior is not only seriously disturbed the order of the socialist market economic management, but also seriously undermined the safety of life and health of consumers, therefore, must follow China's "Criminal Law" on food production, marketing health security law provides for heavy penalties. China's "Criminal Law" at 144 provides for the production, selling poisonous and harmful food crimes, but, for the Crime Legislation understanding of China's criminal law scholars has not yet reached a consensus, especially in the face of reality, in cases of various shapes, substantive departments of justice often come to inconsistent conclusions. This situation, both for "criminal penalties" or "protect the people" is concerned, is negative.This article from the perspective of judicial practice, with the help of the "Sanlu milk powder series of cases" in the typical case analysis, detailed in the original milk to start on the incorporation of "protein powder" and the nature of the behavior of sales, production and sale of "protein powder" the nature of the Sanlu Group and other former executives Tian nature of human behavior and reasonable explanations and detailed demonstration of the production, sale of toxic and harmful elements of the Crime of food to explain and distinguish between production and sales of toxic and hazardous food crime and other related crimes such as crimes of endangering public safety in a dangerous way and the production, sale of fake or substandard products on the basis of all the parties accused the Identification of the issues put forward their views, hoping to improve on the correlation theory and judicial practice can be helped.This paper is divided into four parts:The first part is a case description. Overview Geng Jinping will contain "melamine" and "protein powder" The introduction of the original milk and sell the facts of the case; Yujun production, sales with "melamine" and "protein powder" facts of the case; Tian and other former Sanlu Group production executives, sales are "melamine" in milk facts of the case issues.The second part is the focus of the case in this series. This series of cases, the cases focus on the following aspects: (a), Geng Jinping of "protein powder" mixed with raw milk and the nature of the behavior of sales (b), Zhang Yujun production and sale of "protein powder" in nature of the act (c), Tian Wenhua, who produce, sell contain "protein powder" in the behavior of infant milk powder nature.The third part is the series of cases of controversy and different opinions. Zaigengjinping cases, the focus of controversy is the "protein powder" in nature, Zhu Yu Fei food Yuanliao it toxic or harmful to the non-food raw materials are, Geng Jinping of the nature of the act, mainly has two viewpoints, a view deemed to constitute the production, selling poisonous food crime, a view that the composition of production and sale of harmful food crime. In the case of Zhang Yujun, for its production and sale of "protein powder" of the nature of the view that it constitutes a crime of endangering public safety in a dangerous way, a view that the composition of production and sale of harmful food accomplice in the crime. Tian Sanlu Group for former executives such as acts of nature, mainly in two points of view, one that constituted the production and sale of fake or substandard products, a view that in August 1, 2008 pending the outcome of the behavior detection constitute a Major Accident, in August 1, 2008 test results came out the behavior of a production, marketing fake or substandard products.The fourth part is the legal analysis, is the key part of this article. First, define contain "melamine" and "protein powder" in nature, that it is harmful to the non-food materials, then that Geng Jinping of "protein powder" mixed with milk and sell the original behavior of a production, sales and harmful products crime rather than production, marketing of toxic food crime. Secondly, through the facts of the case and the dangerous means, to constitute the crime of the elements of analysis, Yujun production and sale of "protein powder" in the conduct did not constitute a crime of endangering public safety in dangerous ways; then the provisions of the Criminal Code and the common criminal The basic theory of criminal law common criminal acts that constitute Yujun production and sale of harmful products to help commit the crime, the act shall constitute the production, sale of harmful food crime. Finally, Tian Wenhua, who acts through the analysis of the subjective form and content of different sins, Tian Wenhua, who should be the production and sale contain "melamine" problem milk powder in two stages to the qualitative behavior; its know the pre-test results act fully in line with major responsibilities of the Crime of Crime, shall constitute a Major Accident, their behavior after that test results should be constituted in the nature of the production and sale of harmful food crimes, but under the "Criminal Law" 149th Article , for "light weight method is superior to law" felony principle, be characterized as the ultimate act of production, marketing fake or substandard products. |
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