1. Purpose and Significance of the Research

With the promotion of food safety, one of the major government projects, put in place for over two years, a wide range of policies have been implemented to secure food safety. Against this backdrop, examining performance results of food safety strategies of systems or organizations that were newly introduced in early days of the Park administration is both timely and politically significant. It seems vital to ask the following questions: What paths we have followed for food safety? What did we do to secure food safety? Has anxiety over food safety relieved? Has harmful or adulterated food been reduced?
After food safety was selected as one of national projects, the Korea Food and Drug Administration was promoted to the Ministry of Food and Drugs Safety under the Office of the Prime Minister, and therefore it is now equipped with a government structure and conditions needed to be responsible for the ministry’s functions and offer technical knowhow. However, the definition and scope of harmful food which can be subject to legal punishment is unclear and extensive. Furthermore, when it comes to food safety as a government project, the definition and scope of harmful food is still more uncertain and broader. In order to witness effectiveness in the national project of the elimination of adulterated food, it is vital to take into consideration the criticism that the target to fight against should be clear. Above all things, there should be serious discussion over whether the basic regulation frame of the current Food Sanitation Act is appropriate, as it was designed to secure food safety by regulating food business operators, and whether the current system should be kept intact just because the justification of the act lies in the public benefit of protecting the health of food consumers.
The Food Sanitation Act offers the legal basis for the obligation to protect the rights to life and health stipulated in the constitution through a range of food-related legislation. However, it is also called into question that whether the current system and policies are offering the environment optimal to secure food safety. In fact, food safety is as much a matter of the development and promotion of the food industry as safety-lying in the systematic loop whose bilateral axes include the cultivation of the food industry and the protection of general consumers. However, substandard food can cause tremendous harm to life, the human body, and health, and the damage occurs at a fast rate, thereby requiring thorough and crackdown and post-management.
In Korea, the food industry, by nature, is based on small-scale businessmen and has a possible risk of huge safety accidents. From the perspective of law and policy, it is a matter of concern that reckless crackdown on manufacturers has led to declined growth of small enterprises in the food industry and limited options for consumers.
Therefore, it is of high significance to examine the current status and awareness over food safety and suggest a reasonable criminal policy.

2. Content and Method of the Research

The aim of this research is to examine the merits and demerits of the 18th government’s project of eliminating adulterated food, make the correct assessment, and suggest improvements related with criminal policy.
First, based on the legislation and system concerning unsanitary food crime, this paper will inspect problems related with criminal policy (Chapter 2). Considering that food safety is not limited to a domestic issue but has arisen as a global concern that requires international cooperation and response, it will examine legal systems of other counties to figure out policy implications (Chapter 3). While implementing food safety policies, the public’s anxiety over food sanitation is growing, and the reason seems to be partly attributed to lenient punishment of food adulteration. Thus, this paper will look into the current status of punishment and examine whether the standard of substandard food punishment is appropriate, as well as investigate problems and improvements (Chapter 4). As the promotion of food safety is a vital government project, inspecting the awareness of the general public and experts is considered to serve as an important data for research to explore practical plans to eradicate substandard food crime (Chapter 5). Last, based on the research in the previous chapters, this paper will delve into countermeasures and improvements (Chapter 6).
To do this, this paper will conduct literature research to figure out food safety systems and the current status of the related legislation, as well as carrying out awareness investigation of the general public and experts to probe a change in their awareness over food hygiene offences. Based on this, it will examine the overall legislation and policies with regard to food safety before proposing policy directions relating to food safety.

3. Theoretical Discussion of the Research

A. Need for Legal Definition and Regulation of Adulterated Food

Under the current Act on Special Measures for the Control of Public Health Crimes, the manufacture of illegal food and harmful additives is subject to additional punishment. However, the Act does not stipulate the definition of illegal food, and when it comes to the standard of harm, it simply stipulates that food must not be “harmful” and makes it the standard not to be “seriously harmful” which is stipulated under the Article 4 of the enforcement ordinance of the Act. First of all, according to the Act, illegal food refers to manufacture or process of foods or additives without permission from or report to the authorities. Therefore, food manufactured or processed without permission from the authorities is not adulterated food but illegal food, which is sentenced to imprisonment for life or for not less than five years. However, the problem is that this does not refer to adulterated food under the Food Sanitation Act, and furthermore, administrative violations relating to permission or license can be punished as a criminal offense and the sentence is not light. Illegal food, not just harmful food, under the Act on Special Measures for the Control of Public Health Crimes, can be subject to additional punishment, and as for a grave crime, the additional punishment regulation can be fully utilized. Still, a problem arises that whether the sentence of more than five years in prison, equivalent to that of murder under the criminal act, is appropriate-it is inevitable to receive criticism that the criminal law is excessive according to Grundsatz nulla poena sine lege (the principle of legality).
Against this background, substandard food is not legally defined under the current law, causing controversy over the concept and range. According to the government’s announcement over the definition and scope, substandard food refers to all kinds of low-quality food that creates public anxiety. In other words, the government sees substandard food as unsanitary. Specifically, substandard food in a narrow sense refers to rotten or decayed food or carcinogen-containing food that is harmful to the human body; in a broad sense, it includes all food that is sold by deceiving consumers, such as counterfeited food and food sold through false and exaggerative advertisement. According to the definition, false information on place of origin, price, and quality of food and exaggerative food advertisement can be subject to punishment, so even though some food is not referred to as substandard food, it is considered to be included in the range of substandard food. The definition of substandard food reads “those who are intentionally engaged in production, manufacture, distribution, and sale of food that is unsanitary or inappropriate according to social conventions.” But in offering the definition of substandard food, the use of “unsanitary or inappropriate according to social conventions” is highly unclear and vague to be used in an effort to eradicate an undesirable evil.

B. Food Safety Crime and the Principle of Legality

Under the Food Sanitation Act, food safety crime refers to cases that could endanger the public’s life and health, including ones that do not receive permission or license from the authorities-which serves as the standard for being “harmful.” It is understandable to strengthen the permission and licensing system for food safety, but directly considering food manufactured or processed without permission or license as harmful is to extend the scope of harmful food. It is called into question that the standard for being hazardous is in accordance with the principle of legality. This definition can bring about the expansion of punishment, which can be against the principle of legality.
In addition, food safety crime involves those who violate the related law, but it is questionable whether the punishment is distinguished according to deliberate offense or criminal negligence. Most of food sanitation crime, by nature, seems to be conducted negligently, rather than intentionally, and under the current Food Sanitation Act, it is supposed to be found innocent if it is difficult to prove the violator’s intention. This is not desirable even when taking into consideration the nature of food safety crime. Therefore, it is needed to improve regulation relating to criminal negligence.

C. Current Status of the Food Safety Crime Response Team

1) Problems with Food Safety Crime Control

According to recent statistical data on organizations dealing with food safety crime, it is vital to arrange terms of food sanitation crime, along with the related legislation.
As for problems by food crime management organization pointed out in the data, police conducted low rate of custody investigation, showing the crime was not relatively serious. Also, they cracked down taking into account economic conditions and other circumstances of small-scale businessmen but did not take seriously the risk of food safety crime. At the prosecution level, most cases were dropped or let to a summary indictment, highlighting the need for discussion over the seriousness of food safety crime. Food crime has high recidivism rate, so it is also necessary to discuss over the issue.
Also, when investigation agencies-the prosecution and police-deal with food safety crime, warrant requirement under the principle of compulsory investigation is strictly applied. Therefore, if they approach only with prior information over food safety offences and criminal charges, crackdown and investigation without the support of professional manpower and equipment, and finances are less likely to lead to criminal punishment. In addition, the special judicial police is supposed to conduct its job as a professional investigation agency based on expertise for each field, but the limit of manpower, equipment, and finances of the administrative authority each special judicial police is affiliated hinders it from conducting an active task.
Considering that the special judicial police affiliated in the central administrative authority or local governments take orders from the prosecution and its all finances are used for each organization’s own tasks, it should also demand reconsideration that whether it is necessary to actively cooperate with joint control of the police that has in short of professional manpower. Such a structural problem is one of the contributing factors to undermining active cooperation between related organizations.

2) Food Safety Crime Control and Response

In an effort to realize the eradication of food safety crime, one of major government projects, police and administrative organizations’ special judicial police are aggressively responding to related crime, starting with the designation of public prosecutors’ office for food safety. However, taking into account issues such as investigation direction and supervision, overlapping and complicated tasks between related organizations, and the awareness of those with interests in food safety crime, as well as threat for crime control, necessary structural improvements are as follows.
First, the role of the special judicial police affiliated to related organizations’ administrative offices, as well as that of investigation agencies, is vital in order to give more , thorough, and correct punishment for effective control of food crime.
Second, it is desirable for the special judicial police affiliated to food crime-related organizations to focus on cracking down and administrative punishment. When related administrative offices approach, they can have broader access to many things spanning from crime scene crackdown, collecting evidence from the crime scene in order to prove criminal charges, to selecting evidence with probative power.
Third, it is vital to secure expertise of criminal investigation in order to professionally respond to a serious food safety accident. If the expertise includes ability to secure evidence to prove criminal charges in the process of a trial, along with overall knowledge of law on criminal procedure for the prosecutor to institute and support a public action, the special judicial police will perform a role as a professional investigation agency, instead of dealing with simple tasks, such as charging and forwarding a case.
Fourth, general criminal investigations are conducted by an investigation authority after the agency’s recognition or the public’s accusation. The investigation agency can arbitrarily investigate and compulsorily research to a limited scale while following criminal procedures. In most cases, evidence for food safety crime is collected from the crime scene, so if warrant requirement is strictly applied, collecting evidence through administrative procedures, rather than criminal ones, is more effective.
Lastly, unlike the prosecution as legal experts and police as investigation experts, the food safety response team should be equipped with expertise in order to effectively respond to crime occurring in the food industry. If this additional condition is met, an effective organization will be operated to achieve the major administrative goal, and ultimately food safety crime can be intensively controlled.

D. Foreign Cases of Food Safety Crime Policy

1) United States

In the United States, legal and institutional systems for food safety are put in place to aggressively respond to related crime, as food safety is taken so seriously that it is considered not just an issue that can violate the rights to health but as food terror.
Food safety crime has long been defined in a large number of legislation, which has also constantly been revised. Also, related organizations are in active cooperation to prevent recurrence of accidents, and officials responsible for food sanitation crime are also equipped with expertise.
In particular, when it comes to an investigation agency’s response ability to food safety offences, most investigators at the Office of Criminal Investigations of the U.S. Food and Drug Administration were previously engaged in crime-related tasks, such as criminal investigation or secret service-a guarantee of expertise in terms of food criminal investigation, which clearly sets the U.S. apart from Korea. Of course, the Anglo-American criminal justice system, in particular the investigation system, is different from that of Korea in principle, but since they both have a shared administrative goal of preventing and controlling food safety crime, there is a need to examine Korea’s current methods of controlling food sanitation offences again.
As for punishment of food safety violators, U.S. legislation does not stipulate the offense type and punishment as much in detail as Korea’s Food Sanitation Act does. But companies that violate food safety are subject to severe punishment, along with a huge amount of compensation for damage and civil money penalties.

2) Germany

Germany has theoretical and juridical basis for the country’s obligation to prevent danger, whose foundation lies in the Constitution. In the wake of BSE that hit across the European continent, Germany has seen a fundamental change in food-related legislation and organizations. The food safety crisis has created the public’s distrust, highlighting the need to reform regulations and structures concerning food safety. Above all, as German’s most legislation is based on European Union law, collecting information related food safety is vital. Based on the collected data, Germany establishes laws and legislation to control food safety and conducts a wide range of measures.
The aim of the food and feed act (Lebensmittel und Futtermittelgesetzbuch), the fundamental law of food safety control regulations, is to protect consumers by preventing possible risks against the health of humans, prevent counterfeited products in the distribution of food, feed, cosmetics, and other daily essentials, and offer related information to consumers and those engaged in economic activities. The Act has resolved the difficulty of applying the previous food-related European law to the domestic law and established new regulations in accordance with the definition of food stipulated in European Union law, thereby improving difficulty of application the laws concerning food safety that had been used without distinction.
Also, the authorities’ management and supervisory system with regard to food safety is assessed to be more thorough and effective compared with other fields. In particular, following the BSE crisis, the country’s food safety control system has divided into the Federal Office of Consumer Protection and Food Safety (BVL, management agency) and the Federal Institute for Risk Assessment (BfR, assessment agency) in order to guarantee independence of risk assessment. In other words, Germany has a two-track approach to food safety of risk assessment and risk management, and the Federal Ministry of Food, Agriculture and Consumer (BMELV) is responsible for establishing and revising food safety regulations and implementing related measures. These are all related with risk management, and the two agencies conduct all the measures that can minimize or prevent risks. The BMELV consigns the BVL to manage certain risks, and the BVL has authority over risk management. Also, food and feed monitoring results from a host of local governments are collected and analyzed to be used as data for reports, which are also utilized for central and local governments to make new monitoring plans.

3) Japan

After a food scare occurred in Japan in the 2000s, the country established a national response model and policies, which have been put in place up to this day. With the Minister of State for Food Safety as the center, the Consumer Affairs Agency and the Food Safety Commission are operated, and experts of each organization are engaged in directing and supervising respective ministries and agencies in tandem with the Consumer Commission.
In cooperation with the Consumer Commission and the Food Safety Commission, the Consumer Affairs Agency recommends measures and requirements regarding food safety policies and systems to the food safety-related cabinet office, exchanging necessary information in real time. Also, the Consumer Commission is also engaged in making recommendation, order, and supervision for food business operators and public announcement, calling attention, recommendation for consumers. While the Ministry of Health, Labor and Welfare is responsible for food sanitation administration as a food safety administrative organization, the Ministry of Agriculture, Forestry and Fisheries is in charge of food administration only from food production to shipment, with clear division of responsibility but at the same time in close cooperation between the two ministries.
As for food safety control in Japan, most local governments across the country establish basic guidelines and detailed promotion plans or set up ordinances, and they are in cooperation with other local government for exchange of information and opinions, building cooperation systems.

4. Research Results

A. Research Results of Food Safety Crime Related Sentencing in the Written Judgment

The Ministry of Food and Drugs Safety responded to a recent food safety accident in which E. coli was detected from a cereal product, by resorting to strengthening punishment for failing to observe the self quality control testing system stipulated in the Food Sanitation Act. A series of food scares have been constantly occurring, creating public demand for severe punishment for such a food crime. Against this backdrop, the Administration has decided to strengthen punishment while coming up with a countermeasure. As a result, there has been a growing gap between the public’s expectations for sentencing and the judiciary’s judgments. The prosecution rate compared with the entire charged cases stands at a mere one percent, and only an average of 5.3 cases per year are given an actual prison sentence. Most cases end up with monetary penalties, and the average amount of fines is only 5.99 million won- demonstrating a tremendous gap between actual sentencing and the punishment regulation that stipulates up to 100 million won in monetary penalty.
Also, according to the written rulings this paper researched, most administrative violations of general and rest-area restaurants (including the violation of business license and other business requirements) were conventionally dealt with as a criminal charge, aside from receiving administrative disposition. As a result, the prosecution in charge of actual investigation is believed to be forced to summarily indict the cases. Therefore, violations of business operator report/license or other terms of obedience should be punished with administrative measures such as penalty surcharge or fines, while existing punishment regulations should be subdivided. As the charge is so trivial that the prosecution ends up with making a summary indictment without feeling the need to hold a court, the Ministry of Food and Drugs Safety responsible for revising related legislation should work on amending overall punishment articles by reflecting real conditions.
The current sentencing standards of the Supreme Court stipulate sentencing for harmful food offences in Articles 4, 7, and 93 and for false indication and exaggerative advertisement in Articles 10 and 13. As for the violation of business license or other terms of obedience, however, there is no standard even though such a case constitutes the highest rate of the entire substandard food offences. Therefore, it is difficult to criticize the judiciary for its summary indictment of a charge whose sentencing standard cannot be found in the court rulings. Furthermore, it is impossible to asses if the sentencing is appropriate, because the sentencing can vary according to conditions and individual judgments. Considering that it is extremely difficult to work on amending punishment articles right away, it would be a good option to add sentencing standards of the administrative violations to the Supreme Court’s sentencing standards. Also, it is vital to make a strong recommendation that the judge specify in the ruling whether the sentencing standard has been applied, making sure each court’s observance can be checked out. As this paper researched, 93 cases out of 300 had sentencing standards, but only eight cases demonstrated in their rulings that the sentencing standards had been applied. Of course, the judiciary take pains to make a ruling by referring to sentencing standards and prior rulings. But for the sake of the judiciary’s convenience and the defendant’s rights, it would not be difficult for the judge to indicate the application in the ruling. Therefore, it is vital to make a strong recommendation for respective justice departments of courts of various levels.
Lastly, this research is significant in that it has secured basic data, but in the future, if a complete enumeration survey of substandard food offenses is conducted by the Office of Court Administration in cooperation with courts of various levels and the Supreme Prosecutor’s Office, it will be possible to collect actual data on more accurate and real sentencing standards. Based on the detailed analysis of the result, it will be also possible to make a comprehensive research on punishment articles of the current legislation-and such research must be conducted.

B. Survey Results of Public Awareness

The survey of public awareness over food safety and criminal policies for substandard food offences was conducted online using online panels in a total of 16 metropolitan cities including Jeju Island across the country. The survey was carried out for the 22th-24th of September, 2014 among 1,100 adult males and females in their twenties through sixties, with the number of respondents allocated proportional to region, gender, and age. The survey has a 95 percent confidence level and a sampling error of plus or minus 2.95 percent.

1) Awareness over Food Safety

First, the general public has the least awareness of substandard food among the Four Social Evils and considers it least important. In the survey of public awareness of the Four Social Evils, school violence has the highest awareness rate (response ratio of “aware” 95.1 percent), while substandard food has the least awareness result (response ratio of “aware” 91.5 percent). Also, in the survey of the public’s feeling safe, domestic violence has the highest result of 2.43 on a five-point scale, followed by substandard food with 2.19. In a survey of the priority among the Four Social Evils, sexual abuse has the highest rate of 32.26 percent, with unsanitary food accounting for the least percent of 18.17.
Second, the general public collect information on food safety mostly from media outlets such as TV and radio and the Internet portals and blogs. According to the survey, the public received data on food safety from media including TV and radio (76.0%), Internet portals and blogs (62.9%), printed media such as newspapers and magazines (30.2%), and government agencies such as the central government and the Ministry of Food and Drugs Safety (18.0%).
Third, the public’s fear factors over food safety include place of origin, processed food, chemical additives, sanitary conditions of food sellers and manufacturers, shelf life and date of manufacture, harmful substances, and eating out and street food. In response to an open-ended question asking fear factors, place of origin was the most fearful factor among the public with 30.0 percent, followed by processed food (23.5%), chemical additives (18.5%), sanitary conditions of food sellers and manufacturers (15.8%), shelf life and date of manufacture (15.5%), harmful substances (14.9%), and eating out and street food (10.7%).
Fourth, the public’s awareness over food safety is most influenced by media coverage such as TV news and other programs. According to the survey, media coverage is the most influential factor (54.9%) over how the public thinks about food safety, followed by groundless anxiety (17.6%) and one’s own or family’s experiences (11.3%).
Fifth, it turns out that the public has anxiety over the general food chain spanning from food production, manufacturing (processing), distribution, sale, to import. In particular, they have the highest anxiety over imported food. According to a survey that was conducted to find out how the public feels concerned over food on a five-point scale and classified into “unsafe” and “safe,” food production has 44.1 percent for being unsafe and 11.1 percent for being safe, with manufacturing (processing) (49.6%, 10.2%), distribution (47.2%, 9.3%), sale (37.9%, 13.3%), and import (65.5%, 6.9%), with overall negative awareness over safety in the food chain.
Sixth, the public at large has a negative perception of the overall food safety.
According to the survey, they rated that food safety has improved compared with the past and will greatly enhanced in the future. According to a survey result that was measured on a five-point scale and classified into “unsafe” and “safe,” the general food safety risk has 34.6 percent for being unsafe and 9.9 percent for being safe, food safety risk compared with the past (29.5% for being unsafe, 28.9% for being safe), and future food safety risk (25.5% for being unsafe, 40.1% for being safe).
Lastly, over a half of the public does not know about food safety policy, and among respondents who answered to be aware of the food safety policy (34.5%), they showed negative responses over the policy’s systemic approach, effectiveness, reliability, and overall satisfaction. Also, according to a survey result that was measured on a five-point scale and classified into “satisfactory” and “unsatisfactory,” systematicity has 47.0 percent for being unsatisfactory and 13.2 percent for being satisfactory, effectiveness (46.8%, 12.5%), reliability (46.0%, 16.0%), and overall satisfaction (36.4%, 22.5%), demonstrating the overall unsatisfactory responses over the government’s food safety policy.

2) Awareness of Food Safety Crime

First, according to the survey on public awareness of food safety crime, it is considered that food safety crime has not been reduced, the crackdown is not properly conducted, and punishment is not appropriate. According to a survey result that was measured on a five-point scale and classified into “negative” and “positive,” improvement of the current status of food safety crime accounted for a negative response of 56.9 percent and a positive response of 14.3 percent, with appropriate crackdown on food safety offences (58.4%, 10.8%) and appropriate punishment (60.9%, 15.4%), revealing overall negative public awareness of criminal policy related with food sanitation offences.
Second, the public has negative awareness of criminal policy governing unsanitary food offences, with more negative response than that of the government’s food safety policy. According to a survey result that was measured on a five-point scale and classified into “satisfactory” and “unsatisfactory,” systematicity accounted for 52.9 percent for being unsatisfactory and 10.4 percent for being satisfactory, effectiveness (55.5%, 9.5%), and reliability (54.8%, 13.3%), demonstrating the overall unsatisfactory responses of criminal policy of substandard food offences.
Third, the survey found that criminal punishment is considered to be more effective to eradicate substandard food offences than administrative measures. According to a preference survey, criminal punishment accounted for 77.4 percent, with administrative measures constituting 22.6 percent. Also, among the respondents who preferred administrative measures over criminal punishment, business shutdown was considered the most effective measure to eliminate food safety offences (37.8%), followed by suspension of business (21.7%) and cancellation of business (19.3%). As for criminal punishment, a combination of imprisonment and fines was considered to be the most effective measure to root out related offences. The survey found that a mix of imprisonment and penalties accounted for 82.1 percent for the most effective method, followed by imprisonment (14.9%) and fines (2.9%).
Fourth, obstacles to eradicating substandard food offences, according to the survey, were considered to include crackdown on food manufacture (processing), the judiciary’s sentencing, crackdown on food distribution, endeavor of those engaged in the food industry. Also, effective efforts to root out such offences, the respondents said, include the judiciary’s sentencing, crackdown on food distribution, police investigation, and endeavor of those engaged in the food industry. According to the survey, crackdown on food distribution was considered to be the largest obstacle to stamping out substandard food offences (20.1%), followed by the judiciary’s sentencing (19.6%), endeavor of those engaged in the food industry (13.4%), while the judiciary’s sentencing was considered to be the most effective (26.0%), with crackdown on food distribution (13.8%) and endeavor of those engaged in the food industry (10.1%).
Lastly, the survey found that food poisoning or other food-related diseases were the most common experience for those surveyed, with the lowest rate of witnessing or experiencing substandard food offences. Also, when they experienced harmful food, substandard food offences, or food poisoning or other food-related diseases, they reported to judicial authorities (including police and the prosecution) and food-related agencies (including the Ministry of Food and Drugs Safety, the Ministry of Health and Welfare, the Ministry of Agriculture, Food and Rural Affairs). According to the survey, the most common experience related with substandard food was food poisoning and other diseases (30.5%), followed by harmful food (22.6%) and unsanitary food offences (10.6%). The response that they reported to 1399, the substandard food integrated report center, accounted for extremely low rate.

C. Research Results of Expert Awareness

1) Research Subjects and Methods

An advisory conference was held in order to assess food safety and criminal policy of substandard food offences by inviting experts, including police, the prosecution, scholars, researchers, and officials at the Ministry of Food and Drugs Safety and the National Agricultural Products Quality Management Service of the Ministry of Agriculture, Food and Rural Affairs.
Based on the result of the advisory conference, expert investigations were conducted divided into primary and secondary ones. The primary research was conducted through e-mail for two weeks (from September 1, 2014 to September 14, 2014) with 50 experts, including police, the prosecution, scholars, researchers, and officials at the Ministry of Food and Drugs Safety and the National Agricultural Products Quality Management Service of the Ministry of Agriculture, Food and Rural Affairs. Questionnaires were composed of open-ended questions to make sure that respondents freely express their opinions. The secondary investigation compiled opinions from the primary research and divided the results into six fields of food safety and four fields of substandard food offences. An additional survey was carried out for two weeks (from September 15, 2014 to September 30, 2014) to check out whether the same pool of experts would agree the classification according to field. Response rates stood at 38 percent for the primary investigation and 44 percent for the secondary one. By group, the National Agricultural Products Quality Management Service showed the highest rate, compared with the prosecution accounting for the least response rate.

2) Research Subjects

The investigation results were roughly divided into opinions of food safety and opinions of substandard food offences. In the primary research, experts’ opinions on food safety were divided into the followings: 1) safety of domestically-produced food; 2) seriousness of substandard food; 3) public anxiety over food safety; 4) blind spots of food safety and threatening factors; 5) assessment of food safety policy; and 6) improvement related with food safety policy. As for their opinions on substandard food offences, they were classified with the followings: 1) seriousness of substandard food offences; 2) crackdown on unsanitary food offences and properness of sentencing; 3) problems and struggles of criminal policy related with crackdown, investigation, trial, and sentencing; and 4) improvement of criminal policy related with crackdown, investigation, trial, and sentencing.

3) Results of the Primary Investigation

a) Awareness of Food Safety

First, safety of domestically-produced food was largely divided into “safe” and “unsafe” among the experts surveyed. Second, on the seriousness of substandard food, the expert respondents were opposed with answers “serious” or “not serious.” Also, the respondents attributed the serious problem of substandard food to inappropriate management of imported food. Third, there were two opposing groups who responded that public anxiety over food safety was “high” or “low.” The contributing factor to high anxiety over food safety was considered to be media coverage among the respondents. Fifth, the experts surveyed had mixed responses on the assessment of food safety policy by saying “well operated” or “badly operated.” Lastly, those who were surveyed expressed a range of opinions on the improvement related with food safety policy, such as organizational culture and integration, cooperation between related organizations, strict laws and an effective safety control system at the government level.

b) Awareness of Harmful Food Offences

First, those surveyed were opposed on the seriousness of substandard food offences with answers of “serious” or “not serious.” Second, on crackdown on unsanitary food offences and properness of sentencing, they showed mixed responses of “appropriate” and “inappropriate.” Also, the respondents gave a range of opinions on problems and struggles of criminal policy related with crackdown, investigation, trial, and sentencing, such as “improving,” “badly operated,” “crackdown and investigation are badly conducted,” “trial and sentencing are badly carried out,” and “badly operated due to media coverage.” Lastly, for improvement of criminal policy related with crackdown, investigation, trial, and sentencing, their responses were largely divided into “expertise,” “effectiveness,” and “legal reform.”

4) Secondary Investigation

a) Assessment of Food Safety

First, most experts rated that substandard food is serious. On the seriousness of substandard food, those who said “unsanitary food problem is serious” (8 agreed) outweighed those who said “its seriousness is low” (2 agreed). According to their opinions, contributing factors to aggravating seriousness of substandard food include the distribution of made-in-China food products with false labeling of domestic production, unsanitary production facilities, use of inedible additives, lack of management and supervision of street vendors, intentional manufacture of substandard food, reliance on individual experience over scientific facts, perception gaps between consumers and managers, difference between the public’s food fear factors and real threatening ones, unauthorized food products, and increasing dangers of food products imported from China.
Second, according to the survey, the food safety level in Korea is high. On the safety of food products those who said “the level of food safety is high” (15 agreed) outweighed those who said “the level of food safety is low” (6 agreed). Also, they rated the level of food safety has greatly improved compared with that of the past. According to the survey, threatening factors against the level of food safety include the production and sale of food products by unlicensed production facilities, small-scale food markets, unscrupulous businessmen, the production of advancedmaterial food products, new tasks following the detection of new kinds of harmful substances, and the increase in imported food products.
Third, the public is considered to have high level of anxiety over food safety, according to the experts surveyed. Most experts agreed that the level of food anxiety is high: “public anxiety over food safety is high,” (15 agreed) “public reliability over food, due to food scares, is low,” (16 agreed) and “public anxiety over food safety is low” (1 agreed). According to the expert research, contributing factors to increase public uneasiness over food safety include growing consumer desire for safe food thanks to improved economic conditions and standard of living, consumers’ subjective fear regardless of operators’ actual business status and government officials’ announcement, media coverage expanding uneasiness of food among the public, growing distrust of the government, safety issues of imported produce (processed products), and food safety accidents.
Fourth, according to the survey, blind spots of food safety and threatening factors included the followings, respectively: unlicensed, illegal food manufacturers, small-scale food businesses; subcontractors engaged in the supply of substandard food being sold in front of schools (most of them are small-scale, domestic businesses or enterprises packaging and supplying products imported from China); food products being sold in front of schools; GM food, corrupt food manufacturers and distributers; diversification of government departments relating to food safety; senior specialized hospitals, welfare facilities; food supply chains after harvest from collection place of loads to the processing line; transportation connecting the food supply chains, storage of materials; and street food, expressway rest areas.
Fifth, food safety policies were rated to have problems. On food safety policies, negative responses outweighed positive ones that answered “the overall food safety policies are well arranged (12 agreed).” Obstacles to food safety policies, according to most experts’ opinions, include the followings: increased and diversified media to gather related information (including the Internet); the press directly influencing consumer perception; a surge in dining out and group meals; the food industry’s being small in scale; the difficulty of establishing and implementing policies due to the coexistence of large and small companies in the food industry.
Lastly, the experts suggested, according to the survey, a wide range of options in order to improve food safety policies: securing expertise of officials engaged in crackdown and investigation; cooperation between related organizations; specified and appropriate methods to distinguish violators to eradicate unsanitary food offences; correct diagnosis and assessment of factors that contribute to food safety and reliability; fundamental education of food safety and home education on sanitary management of food; communication of food safety including the current level of food safety; strict laws and the government’s effective safety control systems; institutional supplement for legal butchery and distribution of food including dog meat; strengthening regulations governing substances harmful to the human body; and the easing of ineffective, unrealistic regulations.

b) Assessment of Harmful Food Offences

First, most experts surveyed considered food safety offences serious. On the seriousness of food sanitation offences, those who answered “serious” (11 agreed) outnumbered those who responded “not serious” (5 agreed). They expressed a host of opinions: “Substandard food offences are a serious issue in that anyone could be the victim, creating social turmoil,” “Of substandard food offences, false information of place of origin, in particular, is being done without guilty, which makes the problem more serious,” “Harmful food is not just deception of quality, but an unlawful act that seeks benefit in an illegal way, resulting in harming public health,” and “Intentional food offences show no sign of abating.”
Second, according to the survey, most expert respondents assessed that crackdown and investigation related with substandard food offences are not appropriate. When asked whether the crackdown and investigation is proper, the result of positive responses showed that “Crackdown is well conducted on simple food sanitation offences” (6 agreed), “Crackdown and investigation on harmful food offences are appropriate” (5 agreed), “Management and control of place of origin and food sanitation are well implemented” (4 agreed), “Crackdown, punishment, and sentencing is well implemented” (3 agreed). In contrast, more experts demonstrated negative responses on the questionnaire item: “Most cases just end up with fines” (16 agreed); “Statutory punishment is not lenient, but the problem is that actual sentencing is lenient,” (16 agreed); “Statutory punishment is heavy, but actual sentencing is so lenient that the number of violators are not going down” (16 agreed); “Substandard food offences are a grave issue that could leave serious aftereffects to the victim, but considering the circumstances, the level of punishment is too light” (12 agreed); “the judiciary tends to rule down lenient punishment” (11 agreed); and “Crackdown and punishment of substandard food offences are not appropriate” (11 agreed).
Third, the survey found that the experts prioritize preventive effects of crackdown and punishment of substandard food offences. On the questionnaire item of the properness of crackdown and punishment of substandard food major offences, the experts showed high level of positive responses to the followings: “Not only crackdown and investigation but also management and control are important”; “Aggressive and strict punishment is not the answer to substandard food offences, and regular management and control is more vital”; and “Prevention should be prioritized over countermeasure.”
Fourth, the experts surveyed considered that criminology related with food sanitation offences (including crackdown, investigation, trial, and sentencing) is not appropriate. They attributed the reasons to the inclusion of substandard food in the Four Social Evils, the balloon effect of police tasks, investigation by general,non-professional government officials, and difficulty of securing the probative force of evidence.
Lastly, those surveyed as experts suggested a wide range of improvement plans: “Heavy punishment and crackdown are needed to deal with intentional food offences”; “By classifying into exaggerative advertisement, false labeling of place of origin, and use of inedible additives, there is a need to intensify crackdown and strengthen punishment”; “In order to secure food safety, active cooperation is required between government ministries, not only existing agencies including the Ministry of Food and Drugs Safety, police, and the prosecution but also new ones including the Ministry of Education and the Ministry of Health and Welfare”; “Aggressive, active, professional investigation capability is required when it comes to food safety offences”; “There is a need to nurture expertise of the special police in charge of substandard food offences”; “Constant, thorough post-management is needed”; “Strict punishment should be prioritized in order to reduce food safety offences”; “As crackdown on place of origin is mostly conducted on the spot (restaurants and butcher shops), there are cases in which the official is life-threatening with cookware such as a knife, highlighting the need for protective gear against life threatening and severe punishment such as obstruction of justice”; “Intentional, intellectual violators should be severely punished, arousing attention to those within the same business”; “It is vital to make sure that people cannot even think about making money with substandard food by constantly cracking down and imposing heavy legal responsibility”; “As food safety offences are negligently committed, there is a need to constantly offer education and training to small businessmen and the self-employed”; “The guideline for sentencing is needed to confirm the judiciary’s consistent rulings”; “An organic cooperation system should be established between criminal policies regarding issues including food safety control and sentencing”; and “Experts should be fostered not only for the Ministry of Food and Drugs Safety but also police, the prosecution, and local governments to make sure that judicial procedures, from the stage of crackdown to investigation and trial, can be conducted with expertise.”

5. Policy Proposal

A. Establishing a Hazard uation System as the Foundation for the Efficiency of Food Safety Control

Food safety being one of the government’s responsibilities, the new government pronounced unsanitary food one of the Four Social Evils at the time of its establishment. This fact serves as an indication of the growing insecurity that people have towards food safety formed by continuous incidents of food safety violation.
While it is important to come up with proper countermeasure at the industry level, reorganize related laws, and investigate into the actual situation and search for ways for improvement, it is also crucial in the macroscopic context that the government establish a specific direction for its policy implement.
For this purpose, the food safety policy needs to be basically categorized into three areas of food hazard uation, hazard management, and communication, so that each category could be assessed in terms of policy establishment and implement.
Communication, particularly, is regarded highly important for it is an effective way to address people’s insecurity toward food safety.

B. Organizing Laws and Institutions Related to Food Safety

Currently, the legislation of food-related laws straddles multiple legal areas, which has caused redundant regulations on certain items by different laws and governing bodies, and this has long been regarded a problem. Such redundant regulation ironically leaves other items that go unregulated and undermines the practicality of regulations, and as the result, it amplifies the public distrust of judicial systems related to food safety. The institutions in charge of assessing food safety often come under multiple affiliated organizations or government-funded organizations, where they perform both as a regulatory and uation institution. Such integration of regulatory and uation bodies has an advantage in that they can respond to food safety crisis more ly than when they stand as separated entities. That is, when the health of the whole nation is threatened or is likely to be threatened by violation of food safety, the integrated body can deal with the issue more closely by temporarily banning the sales of the food in question or tracking down and ordering examination of the food. The body, however, needs to be divided into food safety and food hazard uation, so they can separately conduct food crisis uation and food crisis management.
Finally, in reorganizing the food safety security system, the important elements are hazard management, hazard uation, and most of all, communication. In other words, people and the authorities in charge of food safety need to be constantly involved in communication regarding the establishment and implement of policies, their achievements, and decisions on hazard food issues.

C. Clarifying the Target of Regulation and Improving the Efficiency of Regulation

First, in regulating hazard and unsanitary food, the important part to consider is the type of toxicity and the degree of hazard, rather than the toxicity itself. According to the second clause of Article 4 of the U.S. and EU Food and Drug Act, the regulation applies to toxic and hazard substances that can be detrimental. In other words, the focus of the regulation is not on whether it contains toxic or hazard substance, but it is on whether it contains health hazard substance that needs to be controlled. In establishing the objective and direction for policies in the future, it would be desirable to set a term that would clearly suggest specific strategies and directions for policy implementation, rather than merely used for citing. If we were to try unifying the terminology that could be used for strict and precise execution and application of the law, perhaps it is worth considering to choose the term “hazard food” defined in the Food Sanitation Law, which is considered the basic law related to food sanitation.
Second, it is important to discuss and consider whether the punishment regulations implemented by the current Food Sanitation Act are too excessive even on minor violations. The authorities must be able to judge on the basis of criminal policies whether the food safety violation was a minor offence and committed unintentionally or a serious violation committed intentionally with a vicious will-particularly illegal acts of food safety violation committed by large businesses-and respond strictly to the latter cases. Excessive punishment policies are not the most appropriate solution for eradicating unsanitary food because there are some minor violations including marking mistakes or violation of microorganism standards caused by negligence. In fact, as the governing bodies have been conducting reckless crackdown on manufacturers, under the pretext of substandard food eradication, they have been facing with criticism for disturbing the growth of small businesses and undermining the consumer’s right of choice. Therefore, it is necessary for them to reestablish the food regulation terminology, refrain from excessive intervention, and reorganize punishment policies to ultimately promote proper regulations and advancement of food industry.

D. Responsibility of the Regulators

First, due to the characteristics of production and sales of hazardous food, food safety violations are more likely to be uncovered by professional regulators, for example, by public official on duty, rather than by general public, and the crackdown of food safety offenders is conducted by special judicial police officers. However, the special judicial police officer system’s lack of investigation expertise has been raising doubts whether the whole process including recognition of actual violation, indictment, investigation, and transfer to the prosecution is properly carried out. This has ed a discussion on making it an obligation for the crackdown officials and special judicial police officer to report any violation. But of course, there are possibilities that due to the lack of investigation expertise, they are likely to rely on administrative means rather than investigation; that in the case of local public officials, they are likely to impose penalty that would be transferred to the local government or non-tax revenue rather than to the state coffers; and that they are likely to handle it by their own administrative means rather than report it to an investigating body.
Second, it is a well-known fact that in the food industry, there is a structuralized corruption in the process of crackdown and inspection. With this in mind, the Supreme Prosecutors’ Office announced its keynote in 2004 that it would also strictly regulate corrupt relationships, connivance, and inspection negligence. In the future amendment, it is desirable that this regulation policy on officials be expanded and applied to organizations and bodies in charge of hazard uation.
Third, there are possibilities that reckless crackdown will disturb the growth of small businesses, scale down the food product market and development of products, and undermine the consumer’s right of choice. Therefore, it is required to prepare measures at the institutional level, such as minimizing the damage caused by reckless crackdown and establishing an inspection system that encompasses all stages from production to distribution and sales.

E. Optimum Level of Punishment and Sentencing Guidelines

1) Review of Sentencing Guidelines

The current sentencing guidelines for food safety violation, which has a high repeat offence rates, only state those for false indication and exaggerative advertisement, and do not include issues related to business registration and compliance details which account for substantial part of food safety violation. It is a matter to discuss and review whether the sentencing guidelines for the Supreme Court should include regulations related to business registration and compliance details.

2) Preventing Second Convictions by Confiscation of Criminal Proceeds

According to the Article 4 of the Food Sanitation Act, production and sales of hazard food are subject to confiscation of criminal proceeds, as well as criminal punishment. Also, according to the Article 94, certain crimes may be punished by confiscation and penalty, and this is also backed by the Act on Regulation of Punishment of Criminal Proceeds Concealment (Addenda No. 23). In other words, food safety violations are subject to confiscation of equipment and raw materials used in production and sales, based on the Act on Regulation of Punishment of Criminal Proceeds. This will allow the authorities to completely eliminate the cause of crime. In the future, the confiscation of criminal proceeds need to be used to eradicate the source of criminal proceeds and prevent the offenders from recommitting crime.

3) Reconsideration on Redemption of Unjust Enrichment and Minimum Sentencing

In terms of redemption of unjust enrichment and minimum sentencing, the settlement for food safety offenders are mostly decided by summary orders, and it must be carefully reviewed whether this is a matter of punishment or the characteristics of the violation. The reason that settlements are mostly decided by summary orders could be due to the fact that most violation cases are committed by small businesses unintentionally. Therefore, rather than reinforcing the overall punishment level for all food safety offenders, it is more important to establish an investigation method that can decide the characteristics, scale, and intention of the illegal act. It is important that the law enforcement and applying organizations consider these factors as they differentiate the degree of violation and decide just punishment.

F. Other Plans for Eradicating Food Safety Violations

First, among reports of illegal unsanitary food under the report reward system, there have been quite a number of false reports. In order to prevent false reports, it is required to review the necessity of implementing sanctions against false reporters based on criminal punishment law, rather than decreasing the amount of reward. This would help prevent the waste of administrative resources while still maintaining the report reward system.
Second, according to the Article 18 of the Framework Act on Food Safety, the government shall establish and implement policies to trace the history of production and sales of food. But in order to protect the consumers from unsanitary food in distribution, it is important to establish a mandatory tracing system, and improve recall system while coming up with institutional measures to complement current low rate of recovery.
Third, in establishing and implementing food safety policies, relevant bodies must closely collaborate and share information related to safety. And the government mustengage in close consultation with relevant bodies when deciding the criteria and standards related to food safety and making public certain investigations on food safety violations. Moreover, when the government establishes food safety policies, it must provide the businesses, consumers, and involved parties with the information on the policy.