食品攙偽與假冒行為之刑責──以「鴨肝代鵝肝案」為例【本期企劃】 試閱
A Brief Analysis of Criminal Liability of Adulterating or Counterfeiting Food Products: Take the Case of Replacing Foie Gras with Duck Liver As an Example
食品安全衛生管理法第49條第1項攙偽假冒罪是行為犯，也是抽象危險犯。有學者主張攙入不具毒性或有害物質的行為，不成立本罪。另有學者反對目的性限縮解釋，本罪保障人民健康外，尚有免受劣質食品的欺瞞與食品來源正確期待，行為是否該當攙偽或假冒，無須檢驗是否有致危害人體健康之虞。實務判決於2016年統一見解，認為本罪係為維護民眾健康、消費者權益等法益，只要在食品中攙偽或假冒，即有立法者擬制之危險，法院毋庸為實質判斷。
According to Paragraph 1 of Article 49 of “the Act Governing Food Safety and Sanitation,” the crime of adulterating or counterfeiting food products is a conduct crime and also an offender of abstract danger. Some academic claimed that the act of adulterating non-toxic or harmless substances does not constitute this offense. Nevertheless, some scholars opposed the purpose limited explanation, because this crime does, not only protect the health of the citizenry, but also have the prospect of keeping off the deception of low-quality food and of realizing the correct source of food. Thus, whether the act should be adulterated or counterfeited, there is no need to determine whether there is a risk of injury to human wellness. In 2016, the court decisions unified the opinions that this crime is to protect the health of the people and consumer rights, etc., so as long as food products were adulterated or counterfeited, it will cause the danger feint in law, and the court does not demand to conduct substantive examination.
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