中国《食品安全法》的监管权限漏洞研究

监管是监管者和被监管者共同服从规则治理的行为，监管权限规范是控制监管权力的法律之笼。从规范与事实两个认定基准出发，根据监管权限规范的不圆满性及被动执法的现状，足以认定我国食品安全监管权限规范存在严重漏洞。监管权限漏洞具有五种类型属性、四种具体类型形式。其中，监管时限漏洞为其核心漏洞。填补监管权限漏洞要遵循从立法到司法的方法路径，体现规则的正义，根本出路在于建立完善的监管权限规范体系。随着大部制的建立，监管者处在新监管体制与旧监管规范的矛盾和冲突之中。修改我国《食品安全法》，填补监管权限漏洞，已刻不容缓。

A Research on Regulatory Competence Loopholes in the Food Safety Law in China

This article applies the theory of loopholes in law to the systematic and technical researches of regulatory competence loopholes in the food safety law in China .It achieves the goals of integrating organically the theory of norms of regulatory competence with the theory of loopholes in law,combining the research of branch law with the research of jurisprudence,and providing important references for further amendments to the food safety law in China .The major and novel point of the article is to regulate behaviors by rules,and the competence herein refers not only to the scope of authority but also to the capacity and competency of the authority .Regulatory bodies and supervisees should be equally regulated and restrained by the food safety law .The norm of competence is supposed to be an effective legal approach checking and restraining the regulatory power .It is the core pillar of the order of regulatory laws and even food safety laws as a whole .As for regulatory norms,neither does the food safety law explicitly define the concept of competence nor reasonably classify all of the varieties of competence .It only roughly provides that the obligations of food safety regulations shall be assumed by the health administration,quality supervision,industry and commerce administration,food and drug supervision and administration departments at or above the county level pursuant to the legal competences and procedures . The concept of competence is always confused with the concepts of authority,responsibility,obligation,and the norm of competence itself is far from systematic .Nevertheless,passive enforcements occur repeatedly on a large scale in the whole country in practice,which indicates the lack of regulation and control of regulatory bodies .Judging from two criteria of norms and facts and being based on the inadequacy of norms of regulatory competence and the current situation of passive enforcement,it is concluded that China's norms of regulatory competence in the food safety sector is seriously defective . Regulatory competence loopholes are one type of these five attributes :loopholes of norms,open loopholes,prior loopholes,partial loopholes,and public law loopholes .Regulatory competence loopholes have the following specific types :competence loopholes in time,exclusive competence loopholes,competence loopholes in discretionary power,transverse competence loopholes,among which competence loopholes in time is the core loophole .The existence of competence loopholes in time endows law enforcement officers with the power to select the timing of law enforcement .To some extent,competence loopholes in time is the direct reason of passive enforcement .Regulatory competence loopholes may lead the system of regulatory power to gradually be confused and inefficient,and finally reduce it to dysfunction of supervision .The fundamental reason for the emergence of regulatory competence loopholes and the ignorance of them lies in that many concepts and norms of food safety regulation and food production and operation rest still on the moral self-discipline level . Additionally,the consciousness of checking regulatory power is weak .In a sense,food safety law in China is more like a law in books than one in action .The key step of transformation is to stress the aim and function of law .If we want to eradicate the passive enforcement,we must fill up regulatory competence loopholes in time .Only when moral self-discipline turns to the establishment of regulation of norms of competence,law in books may evolve to law in action,and only when fragmented individual norms become a systematic system of norms of regulatory competence may we resolve thoroughly the problem of regulatory competence loopholes .The routine to fill up regulatory competence loopholes shall start from the legislation to the judiciary,and the fairness and justice of rules shall be noticed .The fundamental way is establishing a perfect system of norms of regulatory competence among which building a regulatory power system with time limit is the most important of all .The establishment of the super-ministry system did not yet effectively resolve the problem of competence loopholes in regions .Nevertheless,new problems have arisen in this period of time .Regulatory bodies are at a crossroad between the new regulatory system and old regulatory norms . It is urgent to amend the food safety law and fill up regulatory competence loopholes .