Viewpoint | Taking case file review as the starting point to do a good job in the "second half of the article" of ecological environment administrative punishment-summary of case file review of ecological environment administrative punishment

In Chapter 3, Section 5 of the Measures for Ecological and Environmental Administrative Penalties, the legal review system applicable to major environmental administrative penalty decisions is established, the scope, content and form of legal review are clarified, and the collective discussion system is determined, and it is clear that collective discussion should be conducted. Circumstances of group discussion. The measures for Administrative punishment of Ecological Environment clearly stipulates that if major public interests are involved, those directly related to the major rights and interests of the parties or a third party, those who have gone through the hearing procedure, and those whose cases are difficult and complicated and involve multiple legal relations need to be examined by the legal system, no punishment decision shall be made without the examination of the legal system or if the examination fails. At the same time, if administrative penalties are imposed on complex circumstances or major violations, collective discussions are required, and the collective discussions should also be recorded.

The measures for Administrative punishment of Ecological Environment authorizes the competent departments of ecological environment at or above the municipal level divided into districts to make specific provisions on the scope of cases that should be examined by the legal system according to the actual situation, so as to improve the degree of prudence and fairness in the decision of punishment, reflect the legitimacy of the procedure and prevent damage to the legitimate rights and interests of the administrative counterpart.

The "Administrative Punishment Measures for Ecological Environment" is summarized and refined from the new "the People's Republic of China Administrative Punishment Law", "the People's Republic of China Environmental Protection Law", "the People's Republic of China Air Pollution Prevention and Control Law" and other relevant environmental protection laws and regulations, and added "notification of criticism", "lowering of qualification level", "restriction of development" The types of penalties such as production and business activities, "no application for administrative license within a certain period of time", "restriction of employment" prohibition "," order to dismantle, the multi-dimensional penalties such as property penalty, qualification penalty, reputation penalty and personal freedom penalty have been improved.

In terms of the principle of punishment, the principle of "no more punishment for one thing" has been improved, and the provision of "administrative punishment for the same illegal act of the party concerned shall not be fined more than twice" has been added to Article 7 of the measures for administrative punishment of ecological environment, which has achieved synchronous unification with the new administrative punishment law. In addition, the principle of "from the old and lighter" is clarified, and it is clearly stipulated that the legal provisions at the time of the act shall be applied in principle to the illegal acts of the parties. Only when the old law at the time of the act has been amended or abolished, and the new law has a lighter penalty or is not considered illegal, the provisions of the new law shall be applied to deal with it, thus, in the field of environmental administrative punishment, the rule of law concept of "law is not retroactive" and "beneficial to the defendant" is implemented, and the consistency with China's legal system in dealing with related issues is realized.

In addition to changing the expression of "competent department of environmental protection" in the original provisions to "competent department of ecological environment", the "measures for Administrative punishment of Ecological Environment" also deleted the restrictions on environmental administrative law enforcement departments "at or above the county level" in the original provisions, and the authorized and entrusted "environmental supervision institutions" in the original provisions can also impose administrative penalties, in the "Measures for Administrative Penalties for Ecological Environment", it was changed to an authorized and entrusted "organization". This change changed the specific organization into a general "organization", indicating that the subject that can implement administrative penalties will It is possible to expand accordingly.

For the administrative counterpart, the law enforcement subject with authority can implement administrative punishment. In addition to the competent department with environmental law enforcement authority, the authorized organization needs to have clear authorization procedures, and the law enforcement content of the law enforcement subject should also be carried out within the scope of the authorized authority, so as to ensure the legitimacy and legality.

Article 30 of the Measures for Administrative Penalties for Ecological Environment clearly stipulates that "pollutant discharge units in industries that implement automatic monitoring data marking rules shall mark the data in accordance with the provisions of the competent department of ecological environment under the State Council. The marked automatic monitoring data can be used as evidence to determine the facts of the case". In essence, the automatic monitoring data can be attributed to the electronic data stipulated in Article 46 of the new administrative punishment law, but in the specific application, it still needs to be examined and tested and the validity judgment. The Measures for Administrative Penalties for Ecological Environment directly puts forward more detailed requirements for automatic monitoring data. Automatic monitoring data that has been marked and meets the regulations can be used as evidence, and the pollutant discharge unit needs to be responsible for the authenticity and accuracy of the automatic monitoring data. The relevant responsibilities are attributed to the administrative counterpart.

If the on-site monitoring data is inconsistent with the automatic monitoring data, the Measures for Administrative Penalties for Ecological Environment clearly stipulates that the on-site monitoring (detection) data at the same time period is inconsistent with the automatic monitoring data, and the on-site monitoring (detection) meets the statutory monitoring standards If the monitoring method is used, the on-site monitoring (detection) data shall be used as evidence to determine the facts of the case. This provision is consistent with the 2016 Ministry of Ecology and Environment's Reply on the Application of Evidence when Online Monitoring Data of Pollution Sources Are Inconsistent with On-site Monitoring Data.

In 2004, the State Council issued the "Outline for Comprehensively Promoting the Implementation of Administration According to Law", article 21 of which clearly stipulates: "Improve the system for reviewing administrative law enforcement files. Administrative organs shall establish administrative law enforcement files related to administrative penalties, administrative licensing, administrative coercion and other administrative law enforcement files. The relevant supervision and inspection records, evidence materials and law enforcement documents of citizens, legal persons and other organizations shall be filed".

The Ministry of Ecology and Environment randomly selects administrative punishment files from 32 provinces (autonomous regions, municipalities, including the Corps) every year, in accordance with the "Guidelines for the Production of Environmental Administrative Law Enforcement Documents" (HB HJ [2016] No. 55), "Guiding Opinions on Optimizing the Law Enforcement Methods of the Ecological Environment and Improving the Efficiency of Law Enforcement", and "Opinions of the General Office of the State Council on Further Regulating the Development and Management of Administrative Discretion Benchmarks" "(Guo Ban Fa [2022] No. 27), check the requirements for the production of administrative penalty decisions.

The review of administrative law enforcement files is an important system established in the State Council's "Outline for Comprehensively Promoting the Implementation of Administration by Law. The administrative law enforcement case file material is a necessary element for supervising the law enforcement behavior of administrative agencies. It is the original basis for the assessment and evaluation of the law enforcement responsibility of administrative agencies and the investigation of fault responsibility. It is a direct record of administrative actions and can more directly reflect the legality of administrative law enforcement actions. And rationality.

The evaluation of administrative penalty files is an important means for administrative agencies to improve the professional quality and law enforcement capabilities of law enforcement personnel. It plays an extremely important role in controlling administrative power, standardizing administrative acts, ensuring the effective exercise of administrative power and safeguarding the legitimate rights and interests of administrative parties.

The Jinan Ecological Environment Bureau adheres to the guidance of Xi Jinping's ecological civilization thought, in order to promote the construction of a comprehensive administrative law enforcement team for ecological environmental protection, continue to deepen the "full year, full staff, and full process" ecological environmental protection law enforcement training activities, adhere to the leadership of party building, high Promote, highlight practical training, actual combat, and actual results, continuously optimize law enforcement methods, improve law enforcement efficiency, promote strict, fair and civilized law enforcement, and strive to create a first-class business environment, in order to further fight the battle of pollution prevention and control, to help the Yellow River Basin ecological protection and high-quality development to provide a solid law enforcement guarantee.

In recent years, Jinan Ecological Environment Bureau has carried out mutual evaluation of administrative punishment files in order to further standardize administrative law enforcement, improve the quality of administrative law enforcement and the production level of administrative punishment files in the city's ecological environment.

The administrative punishment case files randomly selected by Jinan Ecological Environment Bureau in the environmental administrative punishment system are evaluated and scored one by one in terms of case filing investigation, fact finding, evidence obtaining, punishment procedure and law application, etc. after the case files are cross-pushed to the reviewers of each sub-bureau in strict accordance with the case handling procedures and requirements stipulated by relevant laws and regulations. Through the "entity and procedure" and "volume" two aspects of evaluation. "Entities and procedures" are mainly reviewed from the aspects of the integrity of the case file, the subject of the violation, the determination of the illegal facts, the application of the law and the accuracy and rationality of the discretion. The "volume" mainly includes evidence such as the case filing approval form, on-site inspection record, investigation and inquiry record, case investigation report, decision to order correction of illegal acts, administrative penalty advance (hearing) notice, administrative penalty decision and other evidence and the standardization of administrative law enforcement documents. After the evaluation, public comments will be made on the loss of points in the evaluation files within the system, and the relevant staff and lawyers of the Jinan Municipal Ecological and Environmental Protection Comprehensive Administrative Law Enforcement Detachment will form a final review team to determine the disputed points.

The source of the case shall be accurately stated in accordance with the findings of law enforcement inspection, complaint reporting, automatic detection, double random, and public information. The brief statement of the case shall be described in accordance with the time, place, behavior, circumstances and consequences of the suspected violation of the law, the name and specific terms of the laws, regulations and rules that may be violated.

Case investigation and evidence collection shall be carried out by no less than two law enforcement officers with certificates within the validity period to carry out investigation and evidence collection work, and the evidence materials that have been collected shall be explained. The evidence materials shall indicate the specific time and place of evidence collection, law enforcement personnel, law enforcement certificate number and The information signed or fingerprinted by the parties. The ways, means and means of obtaining evidence shall meet the statutory requirements, and the cases involving sampling shall be accompanied by a "sampling record" or "on-site inspection (investigation) record" to prove the legality of the sampling process. The evidence shall mutually confirm the suspected illegal acts and make a reasonable explanation, and the case shall not be decided by independent evidence, and the evidence of illegal facts shall constitute a completed chain of evidence.

Each link of the administrative penalty procedure shall be recorded in a corresponding legal document in accordance with the legal form.

The decision to order the correction of the illegal act is the procedure for the administrative organ to order the illegal party to stop or correct or correct the illegal act by itself. Ordering to correct administrative acts is an administrative order, not an administrative penalty, and is a specific procedure in the implementation of administrative penalties. For the law "ordered to make corrections within a time limit", it should be reviewed again, with a post-inspection record. Law enforcement officers shall take the circumstances of the correction within a time limit as the basis for the discretion of administrative penalty.

The notice of administrative punishment in advance (hearing) is a procedure for the administrative organ to accurately determine the illegal facts, correct the applicable laws and regulations, objective and fair punishment materials, and inform the parties of legal matters in writing at one time. The prior (hearing) notice shall clearly inform the parties of their right to make statements and pleas and the time limit for the parties to exercise that right. For punishment cases that meet the hearing conditions, the parties shall also be informed of the right to request a hearing and the time limit for exercising that right.

The decision on administrative penalty shall be decided after collective discussion by the person in charge of the administrative organ before the decision on administrative penalty is made for illegal acts such as large amount of punishment, complex circumstances and major circumstances, and a record of collective deliberation shall be formed. During the period of collective discussion and appraisal, the principle of separation of investigation and punishment shall be followed, and the investigators shall not participate in their voting. A reasonable explanation shall be made if the collective review of the case finally decides to adopt the minority opinion.

The administrative penalty decision shall contain the information of the parties, the facts and evidence of the violation, and the basis for the punishment of the violation. The parties make a statement to defend themselves or apply for a hearing, and explain the reasons and basis for whether to adopt the opinions. The application of lighter and heavier penalties and the application of discretion should be stated in the decision. The decision shall specify the way for the parties to file administrative proceedings, and indicate the specific name of the court accepting the case.

The certificate of service shall indicate the name and document number of the document of service and shall be stamped with the official seal of the administrative organ. The signature of the person to be served shall be signed and dated by two law enforcement officers. If the recipient signs on behalf of the signer, the power of attorney of the signer shall be provided.

The Measures for Administrative Penalties for Ecological Environment were deliberated and adopted by the first ministerial meeting of the Ministry of Ecological Environment in 2023 on April 13, 2023, and will come into force on July 1, 2023, the Administrative Punishment Measures for Ecological Environment are more comprehensive in the scope of punishment, more structured in the terms of punishment, more abundant in the types of evidence, more expanded in the main body of assistance, more precise in the types of punishment, more definite in the principles of punishment, more flexible in the intensity of punishment, and more cautious in the decision of punishment. The promulgation and implementation of the Administrative Punishment Measures for Ecological Environment, on the one hand, put forward higher requirements for case file review, on the other hand, the active development of case file review is also the active implementation of the "Administrative Punishment Measures for Ecological Environment.

The review of case files is of great significance to strengthen internal inspection and strictly implement the accountability system of administrative law enforcement. From the perspective of external influence, carrying out case file review is an inevitable requirement for accelerating the construction of a government under the rule of law and optimizing the business environment under the rule of law, and is a powerful measure to safeguard the legitimate rights and interests of administrative counterparts. From the perspective of ecological and environmental protection departments, carrying out case file evaluation is an important starting point to strengthen the supervision of ecological and environmental administrative law enforcement, which is conducive to strengthening the construction of ecological and environmental protection administrative law enforcement team, standardizing ecological and environmental protection administrative law enforcement behavior, and improving the level of administration according to law.

Although environmental protection is the basic national policy and macro policy, the foundation of national policy and macro policy lies in the legalization of environmental protection. In order to realize the national environmental protection obligation in contemporary China, the primary task is not to standardize the demonstration, but to judge the current situation of environmental rule of law, and choose the appropriate promotion path, so as to clarify what role the legislature, administrative organ and judicial organ should play in the process of realizing the national environmental protection obligation. The "Decision of the Central Committee of the Communist Party of China on Several Major Issues of Comprehensively Deepening Reform" requires: "To build an ecological civilization, we must establish a systematic and complete ecological civilization system, implement the most stringent resource protection system, damage compensation system, and accountability system, and improve environmental governance and Ecological restoration system, use the system to protect the ecological environment." There is reason to believe that actively carrying out and improving the review of ecological environment administrative punishment files is of great significance to the legal governance of environmental protection and the establishment of ecological civilization system.