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Interpretation of food safety from the perspective of civil law

The food safety situation in China is very serious. In recent years, food safety problems that broke out in various parts of China have seriously affected people's physical and mental health, even caused social instability and adversely affected economic development. Although there are many laws related to food safety in China, it is difficult to implement civil legal liability in actual production and life. At the same time, due to the lack of supervision, China's food safety problems have not been well improved. From the perspective of civil law, this paper discusses how to investigate the person responsible for food safety and solve the problem of compensation and compensation for food safety victims.

I. Civil Liability for Food Safety

Food safety in a narrow sense refers to food, food and other foods for use, which must be non-toxic and harmless, meet nutritional requirements, and do not cause any acute, subacute or chronic harm to human health. Food safety must meet the requirements of national mandatory standards from food production, processing, storage, transportation and sales, and must not cause harm to human health. Food safety in a broad sense includes not only the health and availability of food, but also the safety of physical quantities. This paper mainly discusses the safety of food substances and its influence on human health.

Civil liability for food safety refers to the civil illegal acts of citizens or legal persons that cause or may cause acute and chronic harm to the human body because the food is toxic or does not meet the nutritional requirements, and the parties concerned must bear adverse consequences and responsibilities for the corresponding civil illegal acts. The civil liability for food safety in China's Food Safety Law clearly stipulates that in violation of the relevant provisions of the Food Safety Law, the production and sale of food that causes harm to human health will bear corresponding compensation and civil liability according to law. When producing and selling food that does not meet food safety standards, consumers can not only get corresponding compensation for the losses caused, but also claim compensation from food producers or food sellers according to law, and the amount claimed is ten times the food price.

Second, the limitations of food safety legislation in China

(A) China's food legislation on the burden of proof is not clear.

The so-called imputation principle is to determine the tort liability caused by the damage caused by the actor according to the corresponding standards and principles in legal examination and approval. The principle of imputation is the basic principle of dealing with infringement disputes and the standard principle of compensation for infringement damages. At present, the imputation principles of tort in China mainly include the principle of no fault, the principle of fault and the principle of fair liability. China's civil law points out that when the quality of food and products causes personal injury or property loss to others, the producers and sellers of products should bear corresponding civil liabilities and bear the responsibility and obligation to compensate for the losses. China's Food Safety Law makes it clear that the principle of responsibility of food producers and food sellers for food safety issues is the coexistence of no-fault liability and fault liability. This co-existing imputation principle is likely to lead to unclear burden of proof after food safety problems occur, which is not conducive to the judgment of food safety responsible persons and the determination of compensation amount of food safety responsible persons.

(B) China's food safety civil compensation scope is not clear

China's food safety laws and regulations are not clear about the scope of civil compensation for food safety of the parties involved in food safety incidents. China's Food Safety Law clearly stipulates that the parties who violate food safety and cause personal injury or property loss must bear corresponding liability for compensation according to law. However, the legal provisions only clarify the subject who bears the responsibility and the scope of compensation that the subject should bear. Generally speaking, the legal provisions of this article are very general. The principle of compensation for tort civil liability usually follows the principle of comprehensive compensation, and food, as one of the most important forms of tort subject, should apply the principle of comprehensive compensation for civil liability. However, in real life, many food safety victims often have complicated complaint procedures, and it is difficult to really estimate the indirect expenses such as transportation expenses, attorney fees, compensation for mental damages and lost time. Even if the subject who bears the corresponding civil liability for food safety is judged to compensate the relevant losses, it does not support the victim's claim for transportation expenses, lawyer's fees, lost time and compensation for mental damage. As a result, the cost of safeguarding the rights of food safety victims is too high, and the benefits of safeguarding rights are not directly proportional to the efforts and expenditures. Many food safety victims can only submit to humiliation. The Supreme People's Court explained the related issues of mental compensation for civil tort, but it is difficult to determine the calculation standard and method of mental loss, and it is also difficult for infringers to reach an agreement, which leads to different opinions in the process of safeguarding rights and makes it difficult to make a real judgment.

Thirdly, legislative suggestions on food safety in China from the perspective of civil law.

(A) to improve China's food legislation, the burden of proof is not clear

China's Food Safety Law makes it clear that the principle of responsibility of food producers and food sellers for food safety issues is the coexistence of no-fault liability and fault liability. This co-existing imputation principle is likely to lead to unclear burden of proof after food safety problems occur, which is not conducive to the judgment of food safety responsible persons and the determination of compensation amount of food safety responsible persons. According to the food safety responsibility law of Europe and America, once there is a food safety problem caused by subjective will or negligence, the implementer of food safety should bear the corresponding legal responsibility. At the same time, for consumers, victims usually can't prove the existence of food safety defects because of unequal information. Therefore, legislation should be made to improve the corresponding proof, and the burden of proof should be placed on food producers, traders and sellers. If food producers and sellers can prove that food is safe and reliable, they will win the case. Clarifying the system of imputation and proof in food safety legislation is conducive to reducing the cost of consumers' rights protection and improving consumers' awareness and determination of rights protection.

(two) to further improve the food safety punishment system.

For the fault party of food safety, it is necessary to establish a perfect punishment mechanism and a perfect compensation mechanism to compensate consumers and victims for direct losses, indirect losses and spiritual compensation. The determination of the amount of mental compensation should have clear standards and compensation basis, and the scope of compensation should be improved. Through the organic combination of actual compensation, mental damage compensation and punishment compensation, the victims of food safety can be effectively compensated, and at the same time, the subjects responsible for food safety can be punished accordingly, which will sound the alarm for food safety violations.

Research on the International Law of Pre-emptive Self-defense Right

Is it a preemptive strategy of the United States? 9. 1 1? The new national security strategy put forward after the terrorist attacks originated from the theory of collective self-defense put forward by the United Nations. The proposal of preemptive strategy has caused widespread controversy in the international community, and different countries have different attitudes towards it, so the legitimacy of preemptive strategy has never been confirmed internationally. In essence, in international practice, the preemptive strategy has had a great impact on the security and stability of the international community. In order to maintain international peace and security, all countries must unify their opinions, strictly limit the abuse of preemptive strategy in practice, clarify the theory of justifiable defense, and must not deviate from the original system of justifiable defense; In the international community, it is necessary to strengthen the role of the United Nations in the collective security system, ensure the legitimate development of the preemptive self-defense theory, and constantly improve the preemptive strategy.

The U.S. government has implemented the preemptive strategy for a long time, and the international community has not made a clear statement on its behavior. The concept of preemptive strategy is to nip in the bud and exercise the right of self-defense in advance to protect one's rights and interests when danger comes or is invaded by foreign countries. It is based on containment and deterrence, but it also has the right to active self-defense. With the use of the United States, many countries in the international community have followed the example of the United States and pursued the preemptive strategy, constantly launching war conflicts with this concept, which has caused great impact on the original collective self-defense right of the international community and the international order. The author analyzes the essential concept of preemptive strategy from its origin and historical development. Through the practice of preemptive strike system in the international community, this paper analyzes the contradictions and problems of preemptive strike self-defense right in international practice, and puts forward some views.

The meaning of preemptive self-defense.

(A) the formation of the United States preemptive self-defense theory. In order to maintain world peace after World War II, the United Nations created a new collective security system in the United Nations Charter. No country in the world can use force at will, and every country has the right to self-defense. When a country is invaded by other countries, it can use force to safeguard its legitimate rights and interests, provided that it must be invaded by other countries. ? The right of preemptive self-defense? The theory comes from Article 5 1 of the Charter of the United Nations, which stipulates that the exercise of a country's right to self-defense has a prerequisite, that is, it can only be exercised when the country is attacked by force. The right of preemptive self-defense misinterprets the premise of self-defense and forms a set of its own theories. Scholars have never had a clear attitude towards the preconditions for the exercise of the right to self-defense. Since then, Germany, Japan and Britain have also used this system in some disputes, and the United Nations has no clear objection. Under this premise, in order to strengthen its international position, the US government used the theory of disguised self-defense to wage war at will, and changed preventive self-defense into preventive war, gradually forming a preemptive self-defense strategy.

The 9. 1 1 incident in the United States accelerated the formation of the preemptive strategy. 9. The11incident has shaken the stability and security of the whole international community, and terrorism has been recognized by the whole international community, which has changed the international community's long-standing attitude towards terrorist organizations. Later, the international community declared that every country can use force to fight back against terrorist organizations and protect countries that support terrorist organizations. This is a significant progress in the international community's right to self-defense and the origin of the widespread use of preemptive strategy. 9. The11incident also affected the domestic security and stability of the United States. The U.S. government believes that conservative defense is not as good as radical attack, and only by eliminating danger in advance can national security be better protected. Since then, the United States has been focusing on? Self-defense? Constantly launching conflicts to safeguard the national security and great power status of the United States. President Bush proposed it? Axis of evil? Strategy is the embodiment of preemptive strategy, and then Bush delivered a speech at the graduation ceremony of West Point Military Academy, saying that the United States would adopt it? Preemptive strike? Strategy. In March 2003, the United States launched the Iraq war, which is a classic practice of preemptive strategy. When the United Nations Security Council held the United States accountable, the United States government explained that Iraq harbored a large number of weapons and provided materials to terrorists, which would pose a threat to the national security of the United States. For this explanation, the United Nations did not explicitly oppose it, but only asked the United States to compensate Iraq for some losses, which further strengthened the confidence of the United States in implementing the preemptive strategy.

(2) The concept of preemptive self-defense. What is the content of preemptive strategy? With strong military strength as the backing, the core interests of the country as the criterion, and absolute security as the goal, we will adopt an advanced offensive strategic posture to destroy terrorist forces and hostile countries before they pose a substantial threat to the United States. ? [1] The preemptive right of self-defense is different from the traditional self-defense right. In the case of conflicts and growing terrorist organizations, the traditional right of self-defense is not allowed to wage war without authorization, and the requirements for the legitimacy of exercising the right of self-defense are getting higher and higher. The preemptive right of self-defense also appears with the change of international situation. According to the preemptive strategy, a country does not need much legal basis to wage war. As long as facts prove that external actions will pose a threat to the country, we can exercise the right of preemptive self-defense and eliminate the danger in the cradle. It is the right of self-defense centered on the state, which deviates from the provisions of the traditional right of self-defense In War and Peace, the preemptive strategy is the main battle party, which wants to solve all disputes by war. In fact, the preemptive strategy is just misunderstood as the strategy of waging war. Great powers use the preemptive strategy to safeguard their own interests, strive for more interests in the international community, and achieve the status of a world power. The preemptive strategy should be a preventive self-defense strategy, not a preventive war strategy.

Second, the challenge of preemptive self-defense to the international community.

American? Preemptive strike? Strategic use of legal loopholes, circumvention of United Nations regulations, purposefully serving American hegemonism, and overriding international law. Some big countries also adopt hegemonism? Self-defense? On the pretext of arbitrarily infringing on the sovereignty of other countries. It can be seen that the preemptive strategy challenges the traditional right of self-defense and has a far-reaching impact on the international community and international law.

(1) Challenges to the basic principles of international law. The basic principles of international law are the cornerstone of the existence of international law, recognized by all countries in the international community and of universal significance to the stability and security of the international community. From the basic principles of international law, foreign countries must abide by international rules and act in accordance with the provisions of international law, and must not infringe upon the sovereignty integrity and national interests of other countries without authorization. Domestic countries enjoy supreme sovereignty and have the right to ask other countries to stop infringing on their sovereignty. The basic principle of international law is mainly the principle of prohibiting the use of force. Each country's military strength and national conditions are different. If the use of force is not controlled, the international community will fall into chaos. However, the core of American preemptive strategy is to use force to eliminate danger before it comes. This can be understood as that every country can imagine the danger that does not exist, so as to wage war and achieve other purposes. Essentially, if you use? Preemptive strike? Strategy, every country can launch military attacks at will. This clearly violates and challenges the basic principles of international law.

(2) Abuse of the right of national self-defense. Every country has sovereignty, so every country has the right to safeguard sovereignty, which is the right of national self-defense. The purpose of exercising the right of self-defense is self-defense, but it is against international law to use force to violate the sovereignty of other countries under the pretext of self-defense. With the continuous development of society, the ordinary right of self-defense can no longer serve national security. If the right to self-defense must be exercised after the war begins, it is useless. Therefore, it is legal to relax the restrictions on the right of self-defense, but in practice, it is legal to emphasize preventive self-defense unilaterally, which will also bring great danger. The Charter of the United Nations also clearly stipulates that measures taken to exercise the right of self-defense must be reported to the Security Council immediately, and these measures do not affect the overall responsibility of the Security Council for maintaining and restoring peace. However, some big countries, led by the United States, use it to seek their own status and interests. Preemptive strike? Strategy, privately expanding the scope of use of the right of self-defense, preempting the exercise of the right of self-defense seriously exceeds the scope of self-defense, abusing the right of national self-defense, and bringing serious impact to the international community.

(3) Destroy the collective security system of the United Nations. United Nations collective security mechanism

System, also known as collective security, is a collective mutual guarantee for national security and international peace by many countries. Under the guarantee of collective security, an aggressor's attack on any country in the collective security system is regarded as an infringement on all countries. After World War II, the war left a shadow in people's hearts. In order to maintain world peace, the United Nations has stipulated the collective security system in the Charter of the United Nations, and member countries cannot wage war privately. The United Nations collective security system plays an important role in maintaining world peace and security and stopping illegal activities. American? Preemptive strike? Implement the strategy without the consent of the United Nations, exercise the right of self-defense privately, and use force against other countries. The principle of peaceful settlement of international disputes has long been forgotten, and it is difficult for other countries to threaten the United States and restrict its behavior, which has brought great damage to the collective security system of the United Nations.

Thirdly, the legal development and perfection of establishing the right of preemptive self-defense under the framework of international law.

(1) clear? The right of preemptive self-defense? Theory. The theory of preemptive self-defense comes from national self-defense and is an extended explanation of the right of self-defense. Some scholars believe that the right to self-defense is a natural right, and every country can use it independently, but in this case, if it is not restricted, the right to self-defense can also become a weapon to wage war. Therefore, implement? The right of preemptive self-defense? It must be approved by the United Nations Security Council. ? The right of preemptive self-defense? It is illegal in American hands, but it is necessary to apply it in international practice. This question depends on the facts. If a country is really in danger, in this case, the right of preemptive self-defense is the only way to avoid serious threats. [2] Under the condition of modern hostility, it is extremely unreasonable for a country to always wait for the start of armed attack before exercising its right to self-defense. From the above point of view, it can be concluded that the right of preemptive self-defense does not always harm the international community, but should clearly standardize its theory and serve the development of international law and the security system of the international community.

(b) Learn from the WTO the exercise conditions for implementing safeguard measures. The exercise conditions for the implementation of WTO safeguard measures mean that a member can only implement safeguard measures for the products when the number of imported products increases and causes serious damage or threat of serious damage to domestic industries that produce similar or directly competitive products. The right of national self-defense is similar to this, which means that when national security is threatened or dangerous, the right of self-defense can be exercised to protect the sovereign integrity of the country. The implementation conditions of WTO safeguard measures are similar to the right of national self-defense, except that one is an economic and trade issue and the other is an international security issue, but this does not prevent the imitation of the right of preemptive self-defense. There are two states of danger: one is coming and the other is coming. If both threats come true, the losses will be enormous. In this case, how to reasonably guard against these two kinds of dangers? It's just that exercising the right of self-defense is similar to taking safeguard measures in the economic and trade field, but the measures in the field of international security are different from the right of national self-defense and the right of preemptive self-defense. Regarding the right of national self-defense, the international community will agree to exercise the legitimate right of self-defense and eliminate the danger or minimize the loss as much as possible. In this case, the preemptive right of self-defense can also be restricted, because the future danger should be prevented to a certain extent, but it should be exercised cautiously to avoid abusing the preemptive right of self-defense to cause harm to other countries. Therefore, the right of preemptive self-defense can be used, which is conducive to the stability of the international community, but it must be supervised.

(3) The United Nations has established relevant procedures to restrict the preemptive right of self-defense. With the continuous use of preemptive strategy, the international order has been seriously turbulent, which has a global impact on the international community. In this case, how to solve and improve the preemptive strategy? Based on the facts, most countries think it is necessary to strengthen the role of the United Nations and establish relevant United Nations protection procedures, strengthen the role of the United Nations and the Security Council, strengthen the international discourse power of the Security Council, and strengthen its authority in maintaining international peace, thus limiting the right of preemptive self-defense. As our country clearly put forward? Mutual trust, mutual benefit and equal cooperation? The new eight-character security concept advocates strengthening the role of the United Nations; The German Chancellor also made it clear that the authority of the UN Security Council must be strengthened, and some countries that advocate the use of preemptive strategy also advocate strengthening the role of the UN. Russian President Vladimir Putin also pointed out that international affairs must be handled in accordance with the Charter of the United Nations and rules must be observed to safeguard world peace. Some alliances and groups of countries have put forward their own opinions on the right of preemptive self-defense, but they all emphasize the importance of the United Nations.