On The Legal System Of Food Safety Risk Meta-regulation

Food safety is the biggest livelihood issue,and it is also an area of market regulation where double failures of the market and the government occur frequently.In a food safety regulatory environment with diverse risk factors,arduous regulatory tasks,and limited public regulatory resources,the choice of regulatory path faces the dilemma of "more markets" or "more governments".Food safety risk regulation should respond to the institutional needs of fragmented resource integration,multi-participation in governance and multi-mechanism coordination,straighten out the relationship between the legal construction order and the self-generated order of the market,and construct food safety risks that are compatible with the principle of social co-governance Meta-regulatory model.Meta-regulation is self-regulation designed,guided and guaranteed by government regulation.From the perspective of the theoretical context of legal development,metaregulation is the product of law moving towards responsive and reflexive law––the legal system and process are open,paying attention to the construction of organizations and procedures,and the focus of market intervention is shifting to self-discipline of the subject mechanism design,guidance and correction.From the perspective of the transformation of regulatory practice,meta-regulation is the result of reflection,integration of command and control,incentive(relaxation)regulations and decentralized governance regulations.It embodies the subsidiary principle of public law and the penetration of civil society autonomy into the public legal system,and integrates the three coordination mechanisms of market,bureaucracy,and self-organization.Therefore,it is suitable for the field of food safety risk regulation with strong technical requirements and arduous regulatory tasks.Applying the meta-regulation model to food safety risk regulation,the institutional framework presents the characteristics of in-process regulation with multiple entities participating in cooperation,compliance supervision as the focus,and ex-post regulation with self-correction as the coreChina’s food safety legal system has gone through the transformation process of food hygiene management––food safety risk regulation––food safety risk governance,but there are still problems of regulatory failure,lack of awareness of subject responsibility,and formalization of multiple subject participation.The reasons lie in the historical inertia of the command-and-control regulatory model,the fragmentation of regulatory resources,and the monopoly of regulatory power by public power.Under the guidance of the principle of social co-governance,it is an inevitable choice for China’s food safety risk regulation to build a coordinated regulation of government,market and society through a meta-regulation model,and integrate the regulatory resources of multiple subjects.In terms of the construction of a specific system,the food safety risk meta-regulation is a systematic operation mechanism of multiple subjects,compliance supervision and correction of violations.From the perspective of structural functionalism,through the establishment of the main structure of the food law and the distribution of discretionary powers,the functions of the main subjects are embedded in the regulatory system,and the main subjects’ risk control resources are fully utilized to enhance social trust and form a pattern of social cogovernance of food safety risks.Among them,the public regulatory agency is the helm of food safety,and it should perform broad-based rule creation,supervision,punishment and dispute adjudication responsibilities,and coordinate the public interest,subject relationship and normative relationship of food safety.Based on the long-term development of the enterprise and the principle of self-responsibility,food producers and operators are the subject of regulation as well as the subject of self-regulation.They have the rights to formulate regulations,choose to comply with,and obtain due process protection.They should fully implement the voluntary standards which they promise to comply with and accept external supervision and punishment for violations.The thirdparty organizations engaged in food standard formulation and certification are the key subject to promote food transactions,as well as food safety regulators,partners of public regulatory agencies,and information intermediaries.They have the rights or powers to organize self-government and participate in regulation,but they should be avoided to go astray from anti-competitiveness and accept the supervision of public regulatory agencies.Under the meta-regulation model,all entities with regulatory resources are able to participate in the supervision of the implementation of food safety laws and standards.Compliance supervision is centered on the food market subsystem,using a system structure combining internal organization and external authority,and positive and negative incentives to achieve independent compliance for food producers and operators.The standard system is the main regulatory tool for food producers and operators to comply with regulations.The market subsystem should be given sufficient space to develop the standard system,focusing on strengthening the regulation of food production and operation through management and voluntary standard tools.At the same time,to achieve indirect legal control under the premise of the division of labor between laws and standards,strengthen the procedural justice requirements of transparency,openness,fairness,and consensus in the standard setting process,and adhere to the hierarchical and prudential principles of law invoking standards.The internal compliance supervision of food producers and operators is concentrated on the legalization of internal organizations and decision-making mechanisms,mainly the construction of a food safety management personnel system.The compliance supervision of third-party certification entities belongs to the category of market autonomy,and it needs to control the discretionary power established based on contractual relationships,to run procedural justice through the regulatory process of inspection and reporting,and to shape certification as an information hub for cooperation between food safety public regulations and food market autonomy,public and private rights.Public regulatory agencies should also re-supervise selfregulation,so that it does not deviate from the sound development track,amend the legal framework for compliance supervision,and encourage food production and operation and third-party certification agencies to improve their self-regulation.Multi-level compliance supervision still cannot completely avoid violations of food producers and operators.From the perspective of the subjective fault of violations and the object of legal interest protection,it is of practical significance to correct violations within the food market subsystem.Based on the basic goals of solving problems and eliminating hidden dangers,food safety violations should be corrected under the meta-regulatory legal framework of regulated self-regulation.The first is to use the self-correction resources of food producers and operators to outperform the damage caused by the time lag in the formal law enforcement procedures,prompting food producers and operators to implement internal punishments,self-inspection reports,and food recalls.The second is that the certification of a third-party certification subject has the function of food social licensing,forming a correction mechanism centered on qualification-reputation,but this correction power should also be restricted by law.The third is to achieve the best deterrence goal of law enforcement after the public regulatory agency.It needs to combine specific deterrence and general deterrence,and it should turn to more active compliance incentives to promote food producers’ compliance in the law enforcement process,that is,compliance law enforcement and responsive law enforcement.China’s legal system for constructing food safety risk meta-regulation is constitutional and conforms to the reform direction of the market regulation law.The path of its system construction is to place food safety legislation in response-based law and reflective legalbased law,thereby implementing the principle of social co-governance,forming a sophisticated regulatory system;embedding self-regulation into the law by simplifying the law and confirming self-regulation system;the distribution of discretionary power around the prevention and control of food safety risks,and exerts the structural functions of multiple subjects.At the same time,China’s food safety legal system will be improved from five aspects: the first,coordinate and supervise the formulation and implementation of voluntary standards,interaction between subjects,compulsory GMP certification,accreditation system and clarify legal effects;the second,regarding the setting of selfregulatory obligations of food producers and operators,control the rigor of mandatory regulations and the level of choice for protection,coordination of soft and hard laws,differentiation of subject obligations,and emphasis on pre-and post-regulation;the third,implement the food safety audit power of the tripartite mechanism and improve the supervision mechanism of other entities;the forth,comprehensive use of information tools to comprehensively evaluate self-regulation,thereby linking the regulation during the event and the post-enforcement;the fifth,improve the law enforcement mechanism by expanding food safety law enforcement capabilities and resources,distinguishing the strategies of food producers and operators,improving the efficiency of responsive law enforcement,and ensuring the transparency of food safety responsive law enforcement.