近年来,食品安全事件层出不穷,理论和实务界在定罪量刑问题上也莫衷一是,罪刑法定原则所要求的确定性原则受到挑战。其中,量刑反制的思维在食品安全犯罪惩处中就比较典型。所谓量刑反制,就是在对行为定性的时候首先考察行为的社会危害性,然后根据量刑的需要寻找合适的罪名。这种做法是以行为后果为入口,忽视行为的同质性、忽视因果关系的一种量刑思维。近几年发生的影响深远的食品安全事件在处理时,就较多地体现了这一思路。具体表现为:第一,有些犯罪分子应当被判处的罪名是生产、销售有毒有害食品罪但却被判处生产、销售伪 In recent years, food safety incidents have emerged one after another. There is also a lack of agreement on the issue of conviction and sentencing in both theory and practice. The principle of certainty required by the statutory principle of crime and punishment is challenged. Among them, the sentencing countermeasure thinking in food safety criminal punishment is more typical. The so-called sentencing countermeasures, that is, when the conduct of qualitative behavior of the first investigation of the social harmfulness, and then according to the needs of sentencing to find the appropriate charges. This approach is based on the consequences of behavior as the entrance, ignoring the homogeneity of behavior, ignoring the causal relationship between a sentencing thinking. The far-reaching food safety incidents that have taken place in recent years have manifested this idea more when they are handled. The concrete manifestation is: First, some criminals should be sentenced to guilty of the crime of producing or selling poisonous and noxious foods, but they were sentenced to production and sales of false