韩非法治思想对食品安全监管的借鉴意义研究

发布时间：2018-04-23 22:38

本文选题：韩非 + 法治　；参考：《西南大学》2014年硕士论文

【摘要】：韩非是先秦法家思想的集大成者,是战国末期著名思想家。在商鞅的“法治”、申不害的“术治”、慎到的“势治”等法家思想的基础上,韩非以“人性自利”作为其政治思想的人性基础,提出“法”、“术”、“势”三者同为帝王之具,不可偏废的韩非思想。韩非法治思想作为其思想的三大核心之一,主张承认并利用人性自利,以具有正义性、公开性的“法”来治国,尤其是结合战国末期的时代背景,主张实施“以刑去刑”来重建社会秩序。意识源于物质,而又作用于物质。韩非所生活的时代是我国古代社会大变革时代末期,有其独特的社会背景。战国末期,以旧的礼乐制度为载体的社会秩序名存实亡,新的社会秩序还未建立,人趋利避害的动物属性在现实社会中得到空前释放。环境在变化,社会在发展,食品行业的秩序也在改变。近几年,食品安全事件的频发引起了社会广泛关注,食品安全已经成为了一个公共问题,时刻影响经济、社会发展。当代食品行业与战国末期在背景上极其相似,前者是行业失序,后者是社会失序,韩非法治思想对当代食品安全监管可能存在借鉴价值。韩非法治思想遵循人性自利的客观事实,要求在国家治理中承认和利用人性。人的行为是权衡自身利弊的结果,韩非法治思想主张通过“法”来调整利弊关系,诱使人们守“法”,从而构建和维护社会秩序。社会的发展增强了利弊的多元性和复杂性,措施相对单一的法律、法规不足以规范人的行为。《中华人民共和国食品安全法》10章共104条中仅有15条是惩罚措施且惩罚类型单一,104条中没有一条是奖励措施,有必要借鉴人性自利思想增加食品安全相关法的奖励性条款和惩罚类型。同时,法所能赋予违法者的弊是一个期望值,依法监管并提高对违法者的惩处概率意义深远。韩非“法”具有正义性和公开性,食品行业相关法的制定也必须具有政治正义性,同时必须通过各种措施公布食品行业相关法。“法”必须持天道顺民意,制定食品行业相关法必须是为公民的利益；韩非思想处处包含“因时而变”的应时史观,食品行业监管各层级有必要结合具体情况制定合适的奖惩办法；食品行业相关法是公民遵守的,就必须让公民了解、理解其内容,因此,通过各种措施公布、宣传食品行业相关法是执行它的前提。以韩非为代表的法家思想,因主张“以刑去刑”的重刑论,多被误解为残暴寡恩。“以刑去刑”思想并不是主张无所侧重的重刑,而是相对重型,是基于社会秩序混乱的社会背景,主张对应处重刑的违法行为实施相应重刑,判断重刑之“重”和重刑之“度”的标准是能构建和维护社会秩序。近几年,食品安全事件频发,公民对食品安全的需求不断提高,食品行业秩序不良以及食品安全的重要性决定了有必要借鉴韩非“以刑去刑”思想。韩非法治思想具有正义性、公开性。韩非在承认并利用人具有趋利避害本性的基础上,结合其时代背景提出的“以刑去刑”重刑思想一定程度上对当代食品安全监管具有借鉴意义。但,韩非法治思想不利于建立道德秩序,食品安全监管借鉴韩非法治思想必须取其精华、弃其糟粕；同时,韩非法治思想同其他古典治国思想一样,需要我们借鉴的是思想而不是措施。
[Abstract]:Han Fei, a famous thinker in the early Qin Dynasty, was a famous thinker in the late Warring States. On the basis of Shang Yang's "rule of law", "the rule of law", "the rule of rule" and "power of power", Han Fei took "self interest of humanity" as the human basis of his political thought, and put forward that "law", "art" and "potential" were the same as the king of the three. As one of the three cores of his thought, Han Fei's thought of rule of law, one of the three cores of his thought, advocated recognizing and utilizing the self-interest of human nature, taking a "law" with justice and openness, especially in the context of the era of the Warring States period, and advocated the implementation of the "sentence of torture" to rebuild the social order.
The era of Han Fei's life is the end of the era of great transformation of ancient Chinese society. It has its unique social background. At the end of the Warring States period, the social order of the old etiquette and music system is dead and the new social order has not been established yet. The environment is changing, the society is developing, the order of the food industry is changing. In recent years, the frequent occurrence of food safety incidents has aroused widespread concern. Food safety has become a public problem, and it has been a public problem. The food industry is very similar to the end of the Warring States. It is a social disorder, and Han Fei's rule of law is of reference value to modern food safety supervision.
Han Fei's thought of rule of law follows the objective fact of self-interest of human nature, and requires the recognition and use of human nature in national governance. Human behavior is the result of balancing its own advantages and disadvantages. Han Fei's thought of rule of law advocates that the "law" is used to regulate the relationship between the advantages and disadvantages, and the people should be able to defend the law and thus protect the social order. The development of society strengthens the advantages and disadvantages. In the People's Republic of China food safety law >10, only 15 of the 104 articles are punishment measures and the type of punishment is single, and none of the 104 is a reward. It is necessary to draw on the incentive provisions of the law of food safety and increase the law of food safety. At the same time, the disadvantage that law can give to offenders is a desired value. It is of far-reaching significance to supervise and improve the punishment probability for offenders according to law.
Han Fei's "law" is of justice and openness, and the formulation of relevant laws of the food industry must also have political justice. At the same time, the food industry related laws must be published through various measures. "Law" must hold the public opinion in accordance with the law, and the relevant laws of the food industry must be for the benefit of the citizens; and Han Fei's thought contains "change in time" everywhere. According to the historical view, the food industry supervision and regulation at all levels must combine the specific conditions to formulate appropriate rewards and punishments; the food industry related law is the citizen's compliance, it is necessary to let the citizens understand and understand its content. Therefore, the publicity of the food industry related law is the precondition of implementing it through various measures.
The thought of Han Fei as the representative of the legalist thought, because of the theory of "sentence to imprisonment by torture", is often misunderstood as a cruel and ruthless one. "Sentence to torture" is not an idea of heavy punishment, but relatively heavy, based on the social background of chaos in the social order, advocating the implementation of the corresponding heavy penalty and judging the "heavy punishment". The standard of "weight" and the "degree" of heavy punishment is to build and maintain social order. In recent years, the frequent food safety incidents, the increasing demand for food safety, the bad order of the food industry and the importance of food safety have decided to draw on the idea of "imprisonment for imprisonment" by Han Fei.
Han Fei's thought of rule of law is of justice and openness. On the basis of acknowledging and utilizing people's nature of seeking benefit and avoiding harm, the thought of "imprisonment for imprisonment" combined with the background of his times is of reference to the modern food safety supervision. However, the thought of Han Fei is not conducive to the establishment of moral order and food safety supervision. It is necessary to draw lessons from the thought of the rule of law in Han Fei and discard the dross. At the same time, the thought of the rule of law in Han Fei, like other classical thoughts, needs us to learn from the thought, not the measures.

【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.16;F416.82;F203

【参考文献】