食品安全问题关系国计民生，一直以来都受到社会各界的广泛关注。近年来，中央针对食品安全犯罪治理的政策总体趋严，并确立了“四个最严”的标准，即“最严谨的标准、最严格的监管、最严厉的处罚、最严肃的问责”，国家在食品安全刑事政策、刑事立法和刑事司法等多个层面均采取了相关举措，并取得了一定成效。但从现实层面来看，我国的食品安全问题仍然比较突出，食品安全领域人民群众的体感治安水平不高，食品安全的刑事保护强度较为薄弱。这一定程度上是由于现行食品安全刑事保护相关制度体系中存在着诸多固有的结构性问题。但除此之外，应当说当前的食品安全刑法对于食品安全犯罪的规制乏力，与近年来我国社会环境的飞速发展变化也不无关系。

正如习近平总书记所指出的，我国的社会主义发展已经进入新时代。现阶段我国社会整体的物质生产能力已经达到较高水平，相应的我国社会的主要矛盾也已发生根本性变化，已经由“人民日益增长的物质文化需要同落后的社会生产之间的矛盾”，转变为了“人民日益增长的美好生活需要与不平衡、不充分的发展之间的矛盾”。与之相应，当前我们所面临的食品安全问题，其主要矛盾也不再是食品达不到基本安全标准的问题，而更多地体现为，包括食品安全程度在内的食品的“品质”达不到消费者的合理需求。

新时代背景下，人们对于食品安全的期待值有所提高，不仅希望吃得“安全”，还希望能吃得“安心”。在“以人民为中心”的发展思想指导下，人民在食品安全方面对美好生活的向往和需求应当得到更有力、更全面的法律保障。因此，食品安全刑法有必要进行更为根本性的反思，以对此作出回应。而随着总体国家安全观的提出，食品安全作为国家安全的重要组成部分被上升至国家战略层面，对于食品安全刑事保护的完善也应当将食品安全置于更高的战略地位，由此实现新时代的国家发展理念、发展思路在食品安全刑法领域的贯彻落实。

通过分析食品安全刑法制度的历史演进过程可以看到，新中国成立以来，我国的食品安全刑法制度经历了从无到有，再到逐步完善的发展历程。食品安全相关制度的发展变化都是在与不同历史阶段下的食品安全社会现实的互动中完成的。食品安全的法律保护，特别是刑事保护水平，以及食品安全刑事法律制度的样态，某种程度上是社会发展程度所决定，或者至少是受社会发展程度影响和限制的。

总体而言，目前为止我国食品安全刑法的发展趋势是顺应社会发展的规律和需要的，食品安全的刑事保护水平较建国之初也已取得巨大提升。但从食品安全刑事保护的现状来看，食品安全领域的制度供给与社会现实需求之间仍存在较大落差。食品安全刑法及相关法律制度所存在的社会土壤，其生态环境已然发生巨变。基于此，食品安全刑法制度本身也应随之作出调整，与所处社会现实产生互动，才能顺应历史发展的需要。

认清我国当前食品安全刑事保护的实情，是对相关问题展开讨论的基础。对此，本文通过对食品安全犯罪刑事规制现状的描述与分析来侧面展现，具体包括规制模式和规制成效两方面内容。我国的食品安全犯罪刑事规制模式主要可从食品安全刑事政策、刑事立法和刑事司法等三个层面展开。我国的食品安全刑事政策，在宽严相济基本刑事政策的框架下，总体侧重于从严，具体体现为刑事立法政策上的“犯罪化”、“重刑化”，以及刑事司法政策层面上的“从严”，且从整体来看主要强调刑法以及刑罚的“严厉性”。食品安全刑法制度主要表现为两个生产经营类的典型食品安全犯罪罪名，一个渎职犯罪类罪名，以及若干散见的补充性“准食品安全犯罪罪名”。刑事司法层面包括若干食品安全相关司法解释、典型案例与指导性案例以及新近确立的检察公益诉讼制度。

就治理成效而言，可以看到食品安全刑法的严厉化对于食品安全刑事保护状况的改善作用是比较有限的。而食品安全刑法的落实及外围相关制度体系的支撑则在很大程度上能够真正影响食品安全的刑事保护水平。此外，可以看到近年来食品安全犯罪的发展趋势表现为：严重危害人体生命健康的食品安全犯罪有所下降，相对轻微的食品欺诈类犯罪则日渐多发。然而趋严的食品安全刑法面对相对轻微的食品欺诈类犯罪反而更加难以进行有效遏制。这体现出当前食品安全刑法的制度性缺陷，同时也说明在当前的社会背景下，若仍将食品安全刑法的保护重点放在强调“食品不得对人体的生命健康造成严重危害”，是不合时宜的。

结合新时代的社会背景，参照域外相关立法例，本文认为我国的食品安全刑事保护主要存在以下四个方面的问题：食品安全刑事保护范围过窄，食品安全刑事保护缺乏体系性，食品安全刑事保护手段乏力，以及食品安全刑事保护机制不完善等。“食品安全刑事保护范围过窄”具体表现为：食品安全内涵范围过窄、横向的食品安全犯罪刑事规制范围过窄，以及纵向的食品安全犯罪门槛偏高等三个方面。“食品安全刑事保护缺乏体系性”主要表现为当前食品安全刑法对于食品安全犯罪的定位不准确，以及食品安全罪名分散且缺乏内在逻辑两个方面。“食品安全刑事保护手段乏力”主要体现为以下三个层面：食品安全刑罚设置不够合理，食品安全非刑罚处罚措施使用率低，食品安全保安处分制度存在缺陷。“食品安全刑事保护机制不完善”则主要包括食品安全监管机制不完善、食品安全标准认定机制不完善，以及食品安全行刑衔接机制不完善等三方面内容。

针对上述问题，本文认为新时代背景下，我国食品安全刑事保护的完善应当首先在治理理念上有所转变，从保护食品基本的安全转向对食品安全大环境的维护，以回应新时代人民想要“吃得安心”的现实需求；从责任转向预防，以提升风险社会下食品安全的刑事保护水平；从“厉而不严”转向“严而不厉”，以突破此前一味“严厉化”的治理瓶颈，同时也是顺应食品安全犯罪的发展趋势。

在理念革新的基础上，食品安全的刑法保护的完善，还应针对当下制度体系中所存在的问题寻求具体的完善路径。详言之，针对食品安全刑事保护范围过窄的问题，应当扩大刑法意义上“食品安全”的内涵，将对“食品品质”的要求纳入食品安全刑法保护的范围；同时扩大食品安全犯罪刑事规制范围，使食品安全刑法所涵盖的行为类型和覆盖的食品产业链更加全面；此外基于积极的刑法观适度降低食品安全犯罪的犯罪门槛，以使得更多相对轻微的食品安全不法行为被纳入司法规制范畴。

针对食品安全刑事保护缺乏体系性的问题，应当明确食品安全犯罪的定位，以“是否严重危害人体生命健康”为划分标准，将食品安全犯罪的定位二分为危害公共安全罪和破坏社会主义市场经济罪；在现行统一刑法典的立法模式下通过调整、增设食品安全罪刑条款整合食品安全罪名体系，或在时机成熟时尝试采用附属刑法的立法体例以更系统地完善食品安全刑法。

针对食品安全刑事保护手段乏力的问题，应当在罪责刑相适应原则的指导下，在刑事立法层面对食品安全犯罪配置以更具针对性、合比例性的法定刑，健全食品安全保安处分制度；并在司法实践层面提高非刑罚处罚措施使用率以及保安处分的使用率。

针对食品安全刑事保护机制不完善的问题，应当通过强化对食品安全监管渎职犯罪的规制力度等方式，更好地维护食品安全监管机制；通过食品安全标准制定机构的整合以及食品安全鉴定机构的补足，完善食品安全标准认定机制；并通过进一步明确食品安全案件侦办过程中行政执法机关与刑事司法机关之间的案件移送标准与案件移送程序，完善证据转化机制以及行刑衔接监督机制等措施，以健全食品安全的行刑衔接机制。

Food safety is related to the national development and people's livelihood. Food safety issues in China have been widely concerned by many different sectors of the society. In recent years, the central government's policy on the control of food safety crimes has become more and more strict. And it has established the so-called "four strictest standards" of "the strictest standard, the strictest supervision, the most severe punishment and the most serious accountability" for regulating illegal actions on food safety. In this regard, a lot of relevant measures have been taken in criminal policy on food safety, criminal legislation on food safety and criminal justice on food safety, which have achieved certain good effects. However, from the practical point of view, China's food safety problems are still relatively prominent. The level of people’s sense of public security in the field of food safety is still not high, and the intensity of criminal protection of food safety is still relatively weak. To some extent, it is due to the fact that there are many inherent structural problems in the current criminal protection system of food safety. But in addition, it should also be realized that the reason why the current food safety criminal law for the regulation of food safety crime is weak, is also related to the rapid development and change of China's social environment in recent years.            

As it has been pointed out by president Xi Jinping, China's social development has been in a new era. At this development stage, the overall material production capacity of our society has reached a high level. Accordingly, the principal contradiction of our society have undergone fundamental changes, which has transformed from "the contradiction between the people's growing material and cultural needs and the backward social production capacity" to "the contradiction between the people's growing needs for a better life and the unbalanced and inadequate development of the society". Accordingly, the main contradiction of the current food safety problems also has changed a lot. It is no longer about if the food can meet the basic standards of food safety or not, but more focused on if the "quality" of food can meet the reasonable needs of consumers or not, which of course includes the requirement of basic food safety. Against the background of the new era, people's expectations of food safety have increased, not only excepting "to eat safely", but also excepting "to eat at ease".

With the guidance of the thought of development that "developments should be people-centered", people's yearning and demands for a better life in food safety should be more powerfully and comprehensively protected by law, especially by criminal law. Therefore, it is necessary to make a more fundamental rethinking on food safety criminal law as response. Besides, as the overall national security concept has been established, food safety has been raised to the national strategic level as an essential part of national security, the implementation of improving criminal protection of food safety should also be carried on with regarding food safety as a national strategic-concerned issue. So that, the new national development ideas in the new era would be bettered implemented in criminal protection of food safety.           

By analysing the evolution of food safety criminal law system, we can find out that, since the founding of The New China, the development of China's food safety criminal law system has started from scratch, and then has gradually improved until now. And the developments and changes were completed by interacting with the social reality of food safety in different historical stages. To some extent, the level of legal protection of food safety, especially the level of criminal protection of food safety, and the pattern of criminal legal system of food safety, are determined or at least affected and restricted by the level of social development.

Generally speaking, the development of China's food safety criminal law has conformed to the historical trend of social development, and the level of criminal protection of food safety has been greatly improved compared with how it was in the beginning. However, by looking into the current situation of criminal protection of food safety, it is obvious that there is still a big gap between the supply of food safety system and the actual demand from the society. The “ecological environment” of our society, based on which the criminal law and related legal system on food safety exist, has changed tremendously. Therefore, the criminal law system of food safety itself should also be adjusted in order to meet the needs of historical development, by interacting with the social reality.           

In order to figure out this issue, it is primarily to have an accurate understanding of the current situation of criminal protection of food safety in China. And to some degree, the situation of criminal protection of food safety can be transferred into the current situation of criminal regulation of food safety crime, which includes two aspects: the mode of criminal regulation and the effect of criminal regulation on food safety. It can be specified in three dimensions, which are    criminal policy on food safety, criminal legislation on food safety and criminal justice on food safety. China's criminal policy on food safety focuses on being strict under the framework of the basic criminal policy of temper justice with mercy. It is embodied in criminal legislation policy of "criminalization" and "severe punishment", and in criminal justice policy of "strictness". And   from the overall point of view, it mainly emphasizes "severity" of criminal law and penalty as the embodiment of “being strict”. The criminal law system of food safety is mainly constructed by two typical food safety crimes of producing and operating, one crime of dereliction of duty on supervising, and some scattered supplementary "quasi food safety crimes". And when it comes to the criminal justice level, it includes several judicial interpretations related to food safety, typical cases and guiding cases, and the newly established prosecution of public interest system.

With regard to the governance effectiveness on food safety of the criminal legal system, we can see that the severity of food safety criminal law has a very limited effect on improving the level of criminal protection of food safety. Meanwhile, the implementation of food safety criminal law and the support of relevant systems can indeed affect the level of criminal protection of food safety to a large extent. In addition, in recent years, the development trend of food safety crimes is as follows: the food safety crimes which endanger human life and health has decreased, while the relatively minor food safety crimes such as food fraud crimes are increasing. However, the food safety criminal law, which is strict and had been more and more strict, is having more difficulties to curb those relatively minor crimes effectively. It reflects that there are some institutional defects of the current food safety criminal law, and also shows that it is inappropriate to only emphasize that "food shall not cause serious harm to human life and health" in the current society.

Combined with the social background of the new era, and referring to the relevant foreign legislation, this paper holds that, the criminal protection of food safety in China mainly has the following four problems: the scope of criminal protection of food safety is too narrow, the criminal protection of food safety is lack of system, the means of criminal protection of food safety is weak, and the mechanism of criminal protection on food safety is defective. Specifically, the problem of "the scope of criminal protection of food safety is too narrow" is embodied in three aspects: concept of food safety is too narrow, the scope of criminal regulation of food safety crimes is too narrow, and the threshold of food safety crime is relatively high. The problem of “the criminal protection of food safety is lack of system “is mainly manifested in two aspects: the positioning of food safety crime in the current food safety criminal law is inappropriate, and the current food safety crimes are scattered and the relationship between which are unclear.

The problem of " the means of criminal protection of food safety is weak " is mainly reflected in the following three aspects: the food safety penalty is not reasonable, the non-penalty measures for food safety crimes are rarely used, and the system of food safety security measures has defects. And the problem of " the mechanism of criminal protection on food safety is defective " mainly includes three aspects: the food safety supervision mechanism has defects, the food safety standard identification mechanism has defects, and the linkage mechanism between administrative execution and criminal justice in food safety is defective.

In order to solve the problems above, this paper believes that, the first step should be taken to change the concept of governing food safety crimes, as the guidance of the improvement of criminal protection of food safety in the new era. Specifically, it should focus on maintaining a good food safety environment instead of only focus on the protection of basic food safety, to meet the people’s needs of "eat at ease"; and the purpose of criminal law should be changed from “responsibility” to “prevention”, thus improve the level of criminal protection of food safety respond to the risk-society; and the criminal policy on food safety should change from "strict but not comprehensive" into “comprehensive with minimal strictness”,  in order to break through the bottleneck of "severe" governance, and also to comply with the trend of the development of food safety crimes.

On the basis of the concept innovation, the improvement of the criminal law protection of food safety should also seek specific ways to improve the existing problems in the current system. Specifically, in view of the narrow scope of criminal protection of food safety, we should expand the concept of "food safety" in the sense of criminal law, to make it include the requirements of "food quality"; and we should expand the scope of criminal regulation of food safety crimes, so that the types of behavior covered by the criminal law of food safety and the food industry chain covered by the criminal law are more comprehensive; and based on the positive view of criminal law, the food safety law should reduce the threshold of food safety crime to make more food safety crimes regulated by the judicial system.

In view of the problem of “the criminal protection of food safety is lack of systematic”, we should make the positioning of food safety crimes more clear, to positioning it as crimes of endangering public safety or crimes of destroying socialist market economy, according to the standard of " whether it seriously endangers human life and health". And if we continue to adopt the legislative model of criminal code, the food safety crimes should be integrated by adjusting the content of the current articles and by adding provisions of law on crime and punishment of food safety crimes. Or we could try to adopt the legislative model of subsidiary criminal law when the opportunity was ripe.

In view of the weakness of the criminal protection means of food safety, we should make the legal punishment to food safety crimes more efficacious and proportionate under the guidance of the principle of “the punishment should be suitable to fault and responsibility”; and we should improve the food safety security measure system; and we should improve the utilization rate of non-penalty punishment measures and security measures in judicial practice.

In view of the problem of “the criminal protection mechanism of food safety is defective”, we should strengthen the regulation of malfeasance in food safety supervision to better maintain the food safety supervision mechanism; and we should improve the food safety standard identification mechanism by integrating the food safety standard setting institutions and by adding qualified food safety identification institutions; and the execution linkage mechanism of food safety should be improved by clarifying the case transfer standard and procedure, and by improving the mechanism of evidence transformation and the supervision mechanism in the linkage mechanism between the administrative execution and criminal justice.