In light of cases involving tainted and adulterated cooking oil at the end of last year, the government made revisions to the Act Governing Food Safety and Sanitation (食品安全衛生管理法) to increase the criminal responsibility of those who contravene the law. Nevertheless, food safety scandals have continued unabated.
Since revisions to the act were announced, serious incidents have occurred involving the following: dried bean curd bleached using industrial hydrogen peroxide; seaweed soaked in industrial chemicals; food products imported from Japan’s radiation contamination zone, with the point of origin concealed; powdered pepper adulterated with carbonic acid; grilled eels found to contain the carcinogen malachite-green; and tea products containing insecticide residue, among others.
The disposal of food waste from four large supermarket chains has been called into question, with rumors that “recycled” food waste finding its way back into the supply chain.
Why is it that increased criminal responsibility has been unable to keep unscrupulous businesspeople in check?
Put simply, food and sanitation crimes are, in essence, economic crimes and illegal profiteering. For this reason, any policy aimed at addressing the problem should start by tackling the economic incentives.
For example, the illegal industrial hydrogen peroxide used in the production of dried bean curd constitutes just less than 1 percent of colorants used in food products, while the cost for low-grade imported tea products is only 10 percent of the cost of Taiwanese tea. In addition, during the toxic grilled eel case, authorities seized more than 3 tonnes of fish products. If retailers accept liability, they might have to swallow losses to the tune of more than NT$1 million (US$30,580) in costs, while illegal processing wholesalers would have to write off about NT$4 million in income.
Economic incentives encourage the food industry to engage in reckless risk-taking. If government departments fail to carry out their duties or are ineffectual, it should not be in the least bit surprising that there are an endless succession of cowboy businesspeople waiting to replace those that have been caught.
Economic criminals abide by the reasoning that it is better to stake your life on profits than stand for losses. Increasing the length of sentences under a doctrine of ever-more severe punishment is not enough to deter criminals from their profit-making activities.
The history of international development and comparisons with other nations’ legal experiences shows that the only effective way to combat economic criminals is to deprive them of their profits from the outset by removing economic incentives.
Article 49 of the revised act contains a clause for the confiscation of illegally obtained profits.
This demonstrates that there has been a comprehensive transformation among lawmakers from initially having a blind faith in the myth of ever-more stringent punishments toward a policy of depriving criminals of their profits.
Lawmakers have finally made a correct first step toward fighting economic crime, but there is still much work to be done.
What are the main steps that need to be taken?
First, having a body of criminal law in place is not enough. In the year since the food safety act was revised, the Judicial Yuan, the Ministry of Justice, the Food and Drug Administration and other departments have implemented woefully insufficient in-house training to explain the shift in policy toward the expropriation of illegal profits. This is reflected in the outcomes of actual cases, such as Stornaway tea, toxic seaweed and toxic dried bean curd.
Officials from the administration and members of the judiciary have regularly failed to follow the law or confiscate the illegal profits of unscrupulous businesspeople. The nation has become a haven for food crime — for the criminals, it makes perfect sense.
Second, the formulation of a complete set of legislation is continually postponed.
When the act was being debated in the legislature in November last year, the legislative caucuses of the Chinese Nationalist Party (KMT) and the Democratic Progressive Party tabled separate motions and passed a supplementary resolution on the confiscation of third-party profits.
Legislators asked the Ministry of Justice and the Judicial Yuan to propose draft bills within three months of amendments to the act having been approved by the Legislative Yuan. The bills would set out general provisions and procedures for the rules of confiscation according to the Criminal Code and the Code of Criminal Procedure (刑事訴訟法), which would then be sent to the legislature for consideration.
It is more than a year since the supplementary resolution passed the legislature, but even the most basic general provisions bill is still stuck in the Judicial Yuan, which has procrastinated for eight months and still not sent the draft bill to the legislature for deliberation — do lawmakers not see this as a problem?
With the basic body of law for the confiscation of illegal profits repeatedly delayed and with legislators having waited until the recycled food waste incident broke before deciding to set up a food safety committee, it seems lawmakers are unable to see the forest for the trees when it comes to food safety.
In fact, confiscation legislation has not been delayed only by a year.
In the 1970s, German legislators revised the general provisions of that nation’s criminal confiscation law, which was put on the statute books in January 1975 and is still in force. Combined with the Administrative Offenses Act’s (OWiG) mechanism for the expropriation of illegal profits, it has allowed German prosecutors to attack the problem from two angles and has become an effective force against economic crime.
The Criminal Code has been revised 26 times since 1975, yet lawmakers have not once taken notice of Germany’s revisions for the confiscation of illegal profits.
Taiwan’s regulations remain a clause-by-clause almost direct translation of the Qing Dynasty’s draft penal code, written in 1907 by jurist Shen Jiaben (沈家本). The regulations are stuck in the late Qing-early Republican era, when economic and food-related crimes were still in their infancy — and the law had yet to be fully developed.
With such a backward legal system, it would be no wonder if the public were unable to eat or sleep in peace.
Legislators, officials and senior managers must answer the question: Why is it that when everyone is using Windows 10, the nation is stuck with regulations for the confiscation of illegal profits that could not even be said to belong to the era of the DOS operating system?
Lin Yu-hsiung is a professor in the College of Law at National Taiwan University.
Translated by Edward Jones
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