Review of Environmental Capital Law for Construction Workers (No.26) | How to punish minor environmental violations after "no punishment?
Published:
2021-09-26
Author: XU Wen (Hubei Provincial Department of Ecological Environment) Published in China Environmental Journal on January 29, 2021 In order to coordinate the promotion of epidemic prevention and control and economic and social development of ecological and environmental protection work, actively serve the implementation of the "six stability" and "six protection" work, optimize the business environment, the ecological environment department to further explore inclusive and prudent supervision, a number of provinces and cities across the country have established a "ecological environment minor violations of the list of matters not penalized." After the promulgation of the newly revised "Administrative Punishment Law", to correctly implement this system in environmental law enforcement and supervision, there are four issues that need to be focused on. Question 1: Under what circumstances does non-punishment apply? On January 22, 2021, the twenty-fifth meeting of the Standing Committee of the 13th National People's Congress voted and passed the newly revised "Administrative Punishment Law", which will be implemented on July 15, 2021. There are new changes in the provisions of the newly revised Administrative Punishment Law on "no punishment. Article 30 of the law stipulates: "Minors under the age of 14 who commit illegal acts shall not be subject to administrative punishment"; Article 31: "Mental patients and mentally disabled persons cannot recognize or control their own behaviors. If there is an illegal act, no administrative penalty shall be imposed"; Article 33: "If the illegal act is minor and corrected in time, and no harmful consequences are caused, no administrative penalty shall be imposed. Those who violate the law for the first time and have minor harmful consequences and correct them in time may not be given administrative punishment. If the party has evidence sufficient to prove that there is no subjective fault, no administrative penalty shall be imposed. Where laws and administrative regulations provide otherwise, such provisions shall prevail". Paragraph 3 of Article 57: "Upon the conclusion of an investigation, the person in charge of the administrative organ shall examine the results of the investigation and make the following decisions according to different circumstances: ...... If the facts of the (III) violation cannot be established, no administrative penalty shall be imposed". Judging from the relevant provisions of the newly revised "Administrative Punishment Law", the application of "no punishment" has been expanded, especially the addition of "first violation of the law and minor harmful consequences and timely correction, no administrative punishment may be imposed" and "If the parties have evidence sufficient to prove that there is no subjective fault, no administrative punishment shall be imposed. In view of the fact that the newly revised Administrative punishment Law has expanded the application of "no punishment", it is necessary to further revise and improve the list of items not to be punished for minor violations of ecological environment according to the newly revised Administrative punishment Law. Question 2: Does non-punishment need to be made after the case is filed? As many provinces and cities across the country have successively issued a list of items that will not be punished for minor violations of the ecological environment, it can be expected that there will be a number of clues to cases that will not be punished. What kind of investigation procedure should be applied to such case clues will become a realistic but must be solved problem in front of the investigators. The first is whether the case trail of non-punishment needs to be filed. In this regard, neither the pre-revised Administrative Penalty Law nor the newly revised Administrative Penalty Law provides for it. Article 22 of the "Environmental Administrative Punishment Measures" stipulates: "The environmental protection department shall conduct a preliminary review of suspected violations of environmental protection laws, regulations and rules, and decide whether to file a case within 7 working days. After review, if the following four conditions are met, the case shall be filed: (1) There is a suspected violation of environmental protection laws, regulations and rules; the (II) should or can impose administrative penalties in accordance with the law; the (III) is under the jurisdiction of the agency; (IV) violations occur No more than 2 years from the date of discovery, unless otherwise provided by law. If the illegal act is in a continuous or continuing state, it shall be counted from the date of the end of the act." The four conditions for filing a case stipulated in the Environmental Administrative Punishment Measures need to be met at the same time. According to this article, if the clues of the case are found to be unpunished after investigation before filing the case, they may no longer meet the conditions for filing the case. Therefore, the decision not to impose a penalty does not have to be made after the case has been filed. In law enforcement practice, if the case is investigated and found to be in line with the situation of no penalty, how to deal with it? The author suggests that if the case is found to be in line with the situation of no penalty after the case is filed, the case should be revoked. Question 3: Does it need to make a decision not to punish? The applicable situations of no punishment are divided into two categories: one is that the administrative counterpart has illegal acts, but because of the existence of legal reasons, the offender who should be punished is exempted from the application of administrative punishment. Second, the fact that the administrative counterpart violates the law cannot be established and will not be punished. In both cases, although the administrative counterpart does not have to apply administrative penalties, it may still have its creditworthiness affected or be at a disadvantage in the relevant civil and commercial rights and obligations. For example, some listed companies suspected of violating the law must be announced by law enforcement agencies, which may have adverse effects on them. The "No Punishment Decision" can eliminate the adverse effects to a certain extent. Therefore, from the point of view of standardizing the handling of cases and safeguarding the legitimate rights and interests of the administrative counterpart, the author suggests to make and serve the "decision of no punishment" to the administrative counterpart. In view of the fact that non-punishment itself is also a specific administrative act, which will have an impact on the rights and obligations of the administrative counterpart, the administrative counterpart should also be given the right to initiate reconsideration or litigation in the "No Punishment Decision. Question 4: How to standardize the implementation of non-punishment? Non-punishment involves not only the administration of the ecological environment department according to law, but also the protection of the legitimate rights and interests of the administrative counterpart. Although neither the Administrative punishment Law nor the measures for Environmental Administrative punishment specify the implementation process of non-punishment, the author believes that the implementation of non-punishment must be standardized, and if it is implemented at will, it will bring certain risks to the personnel handling the case. How can we achieve standardized implementation? The investigation of the acts targeted by "no punishment" should be treated equally with the investigation of the acts targeted by "to be punished. This equal treatment means that the normative requirements of case investigation also apply to the implementation of "no punishment. First, no punishment needs to be supported by evidence. The ecological environment department must have conclusive evidence to prove that an act is not punishable. There must be evidence of punishment and evidence of non-punishment. In particular, where the "List of Matters Not to be Punished for Minor Violations of Ecological Environment" has been promulgated, solid evidence materials should be used to support the clues of the case as not to be punished according to the detailed identification conditions. Second, non-punishment requires the establishment of relevant implementation rules. The ecological environment department shall establish the implementation process of no penalty. Clarify which department will initiate the non-punishment, the internal approval process, how the non-punishment decision will be made and whether it will be publicized. Third, no punishment needs to be filed. Non-punishment is also a handling decision formed during the investigation of the case. Therefore, the evidence collected during the investigation and the documents formed during the investigation also need to be filed. This is not only a requirement for standardizing law enforcement, but also a necessary step to reduce the risk of case-handling personnel performing their duties.
Author: XU Wen (Hubei Provincial Department of Ecological Environment)
Published in China Environmental Journal on January 29, 2021
In order to coordinate the promotion of epidemic prevention and control and economic and social development of ecological and environmental protection work, actively serve the implementation of the "six stability" and "six protection" work, optimize the business environment, the ecological environment department to further explore inclusive and prudent supervision, a number of provinces and cities across the country have established a "ecological environment minor violations of the list of matters not penalized." After the promulgation of the newly revised "Administrative Punishment Law", to correctly implement this system in environmental law enforcement and supervision, there are four issues that need to be focused on.
Question 1: Under what circumstances does non-punishment apply?
On January 22, 2021, the twenty-fifth meeting of the Standing Committee of the 13th National People's Congress voted and passed the newly revised "Administrative Punishment Law", which will be implemented on July 15, 2021. There are new changes in the provisions of the newly revised Administrative Punishment Law on "no punishment. Article 30 of the law stipulates: "Minors under the age of 14 who commit illegal acts shall not be subject to administrative punishment"; Article 31: "Mental patients and mentally disabled persons cannot recognize or control their own behaviors. If there is an illegal act, no administrative penalty shall be imposed"; Article 33: "If the illegal act is minor and corrected in time, and no harmful consequences are caused, no administrative penalty shall be imposed. Those who violate the law for the first time and have minor harmful consequences and correct them in time may not be given administrative punishment. If the party has evidence sufficient to prove that there is no subjective fault, no administrative penalty shall be imposed. Where laws and administrative regulations provide otherwise, such provisions shall prevail". Paragraph 3 of Article 57: "Upon the conclusion of an investigation, the person in charge of the administrative organ shall examine the results of the investigation and make the following decisions according to different circumstances: ...... If the facts of the (III) violation cannot be established, no administrative penalty shall be imposed". Judging from the relevant provisions of the newly revised "Administrative Punishment Law", the application of "no punishment" has been expanded, especially the addition of "first violation of the law and minor harmful consequences and timely correction, no administrative punishment may be imposed" and "If the parties have evidence sufficient to prove that there is no subjective fault, no administrative punishment shall be imposed. In view of the fact that the newly revised Administrative punishment Law has expanded the application of "no punishment", it is necessary to further revise and improve the list of items not to be punished for minor violations of ecological environment according to the newly revised Administrative punishment Law.
Question 2: Does non-punishment need to be made after the case is filed?
As many provinces and cities across the country have successively issued a list of items that will not be punished for minor violations of the ecological environment, it can be expected that there will be a number of clues to cases that will not be punished. What kind of investigation procedure should be applied to such case clues will become a realistic but must be solved problem in front of the investigators. The first is whether the case trail of non-punishment needs to be filed. In this regard, neither the pre-revised Administrative Penalty Law nor the newly revised Administrative Penalty Law provides for it. Article 22 of the "Environmental Administrative Punishment Measures" stipulates: "The environmental protection department shall conduct a preliminary review of suspected violations of environmental protection laws, regulations and rules, and decide whether to file a case within 7 working days. After review, if the following four conditions are met, the case shall be filed: (1) There is a suspected violation of environmental protection laws, regulations and rules; the (II) should or can impose administrative penalties in accordance with the law; the (III) is under the jurisdiction of the agency; (IV) violations occur No more than 2 years from the date of discovery, unless otherwise provided by law. If the illegal act is in a continuous or continuing state, it shall be counted from the date of the end of the act." The four conditions for filing a case stipulated in the Environmental Administrative Punishment Measures need to be met at the same time. According to this article, if the clues of the case are found to be unpunished after investigation before filing the case, they may no longer meet the conditions for filing the case. Therefore, the decision not to impose a penalty does not have to be made after the case has been filed. In law enforcement practice, if the case is investigated and found to be in line with the situation of no penalty, how to deal with it? The author suggests that if the case is found to be in line with the situation of no penalty after the case is filed, the case should be revoked.
Question 3: Does it need to make a decision not to punish?
The applicable situations of no punishment are divided into two categories: one is that the administrative counterpart has illegal acts, but because of the existence of legal reasons, the offender who should be punished is exempted from the application of administrative punishment. Second, the fact that the administrative counterpart violates the law cannot be established and will not be punished. In both cases, although the administrative counterpart does not have to apply administrative penalties, it may still have its creditworthiness affected or be at a disadvantage in the relevant civil and commercial rights and obligations. For example, some listed companies suspected of violating the law must be announced by law enforcement agencies, which may have adverse effects on them. The "No Punishment Decision" can eliminate the adverse effects to a certain extent. Therefore, from the point of view of standardizing the handling of cases and safeguarding the legitimate rights and interests of the administrative counterpart, the author suggests to make and serve the "decision of no punishment" to the administrative counterpart. In view of the fact that non-punishment itself is also a specific administrative act, which will have an impact on the rights and obligations of the administrative counterpart, the administrative counterpart should also be given the right to initiate reconsideration or litigation in the "No Punishment Decision.
Question 4: How to standardize the implementation of non-punishment?
Non-punishment involves not only the administration of the ecological environment department according to law, but also the protection of the legitimate rights and interests of the administrative counterpart. Although neither the Administrative punishment Law nor the measures for Environmental Administrative punishment specify the implementation process of non-punishment, the author believes that the implementation of non-punishment must be standardized, and if it is implemented at will, it will bring certain risks to the personnel handling the case. How can we achieve standardized implementation? The investigation of the acts targeted by "no punishment" should be treated equally with the investigation of the acts targeted by "to be punished. This equal treatment means that the normative requirements of case investigation also apply to the implementation of "no punishment. First, no punishment needs to be supported by evidence. The ecological environment department must have conclusive evidence to prove that an act is not punishable. There must be evidence of punishment and evidence of non-punishment. In particular, where the "List of Matters Not to be Punished for Minor Violations of Ecological Environment" has been promulgated, solid evidence materials should be used to support the clues of the case as not to be punished according to the detailed identification conditions. Second, non-punishment requires the establishment of relevant implementation rules. The ecological environment department shall establish the implementation process of no penalty. Clarify which department will initiate the non-punishment, the internal approval process, how the non-punishment decision will be made and whether it will be publicized. Third, no punishment needs to be filed. Non-punishment is also a handling decision formed during the investigation of the case. Therefore, the evidence collected during the investigation and the documents formed during the investigation also need to be filed. This is not only a requirement for standardizing law enforcement, but also a necessary step to reduce the risk of case-handling personnel performing their duties.
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