According to Article 99 of the Law on Prevention and Control of Air Pollution, an enterprise that discharges air pollutants beyond the standard may also be fined not less than 100,000 yuan but less than 1 million yuan in addition to ordering correction or restricting production or stopping production. So the question is, fines 100 thousand yuan, 500 thousand yuan, or 1 million yuan? Who has the final say? The law gives the discretion to the law enforcement officers, how to ensure justice?
Discretionary formulas make law enforcement more equitable
On May 30, the Ministry of Ecology and Environment issued Guiding Opinions on Further Standardizing the Application of the Discretionary Power of Environmental Administrative Punishment, which clearly further standardized the exercise of the Discretionary Power of Environmental Administrative Punishment, and punished illegal cases.
Discretion is not arbitrary punishment. The amount of punishment is according to the standard.
& In the face of on-site law enforcement, enterprises say two good words, even pack a few packs of cigarettes and deliver a few bottles of wine, the penalty will be lighter. If you say a few words to offend the law enforcement officers, the penalty will be doubled. Such a situation may have occurred more than a decade ago, but under the restraint of the system, the possibility of its occurrence is extremely low. & Xia Zuyi, deputy director of the Law Enforcement Bureau of the Ministry of Ecological Environment, said that many people misunderstand the discretion of environmental law enforcement, but discretion has its own system cage.
In 2009, the former Ministry of Environmental Protection issued a series of documents. Local governments successively formulated rules and benchmarks for the discretion of environmental administrative penalties in the region, which greatly avoided the arbitrariness and irregularity of penalties.
With the improvement of laws and regulations for the protection of the ecological environment, especially since the revision of the Environmental Protection Law, the means of enforcing the law on the ecological environment have become more abundant, the types of environmental administrative penalties have increased, the amount of fines and penalties has increased substantially, and the discretion of administrative penalties has expanded accordingly.
& Under the new situation, the power of discretion is greater. & "rdquo," said Li Yanfang, a professor at Renmin University of China. This guideline, known as & ldquo; version 2.0 & rdquo, is to further standardize discretion, reduce the arbitrariness of law enforcement process, and make law enforcement more scientific and accurate.
The guidelines clarify the basic principles and supporting systems for the application of discretion. In addition to the documents, they also provide some standardized benchmarks and calculation methods which have been successfully applied in some places for reference.
Nanjing's benchmarks and calculation methods have been applied for more than ten years. & There are thousands of different punishment methods and sum combinations for five kinds of illegal acts and four kinds of illegal acts corresponding to various discretion factors and reference coefficients. The law enforcement personnel select the discretion factors according to how to punish and how much money to pay to the system. & Shi Yong, Director of Policy and Regulation Department of Nanjing Eco-environment Bureau, said that after the application of law enforcement system, the number of people who love for enterprises has been greatly reduced.
Ensure that enterprises are treated fairly and effectively avoid law enforcement risks at the grass-roots level
In some places, & ldquo; Law Enforcement Storm & rdquo; finds illegal activities and punishes them, which makes some enterprises feel unfair. At the two sessions this year, Li Ganjie, Minister of the Ministry of Ecology and Environment, emphasized the regulation and supervision of discretion when he talked about standardizing the enforcement of environmental administrative law.
& For enterprises, they are afraid of unfair punishment. & rdquo; Professor Wang Canfa of China University of Political Science and Law said.
In Yanfang Li's opinion, the supporting system in the guidance has a bright spot. & For example, the separation system of investigation and punishment, which separates the functions of investigation, audit, decision and execution of law enforcement, effectively reduces the opportunity of power rent-seeking. ”
For example, the legal review system of major law enforcement decisions is to give the punished party the right and opportunity to defend themselves through the legal review.
In addition to the significance to enterprises and the market, Wang Canfa and Li Yanfang both mentioned the protective role to law enforcement personnel.
Chen Qingsong, leader of the environmental law enforcement squadron in Jinjiang City, Fujian Province, said that without specific indicators, similar enterprises may be punished differently for similar violations, which can easily lead to misunderstanding of law enforcers by enterprises, & ldquo; very few personnel may have the intention of seeking personal interests by power, norms can prevent power rent-seeking and avoid the risk of clean government, that is, to protect law enforcers. Protect. ”
Local practice also shows that under the application of the system, enterprises are satisfied with the punishment. According to Shi Yong, in the past ten years, there have been more than 3000 discretionary cases in Nanjing municipal law enforcement using the new system. Up to now, none of them have caused disputes among enterprises because of improper punishment.
Specific criteria for explicit discretion, enterprises have expectations of illegal punishment, and promote law-abiding
Among the opinions, the provisions on heavier penalties for enterprises are quite noticeable. & ldquo; heavier & rdquo; including: being punished more than three times (including three times) for similar environmental violations within two years; discharging atmospheric pollutants exceeding the standard during warning period of heavily polluted weather; threatening, insulting, beating, intimidating or retaliating against law enforcement personnel in case investigation; causing environmental pollution across administrative regions by environmental violations; causing adverse social repercussions by environmental violations Others have heavy plots.
At the same time, the Administrative Punishment Law stipulates the special circumstances under which the punishment should be lightened or mitigated according to law, as well as “ where the violation is minor and corrected in time, and no harmful consequences are caused, no administrative punishment shall be imposed ”.
In the systems of Nanjing and other places, the application of the benchmark for amending illegal acts has achieved good results. & ldquo; Amendments can provide opportunities for mitigation of penalties. & rdquo; Shi Yong told reporters, such as enterprises immediately after the violation of the law to correct, and actively take remedial measures, can be in the system to obtain discretionary grade reduction, reduce or exempt the corresponding amount of fines.
& Punishment is not an end, and promoting compliance with the law is fundamental. & According to Xia Zuyi, enterprises will also be punished for violating the law by expressing specific criteria for discretion.Have their own expectations, which has a great role in promoting the realization of normal law-abiding.
According to the requirements, before the end of September this year, the Provincial Ecological and environmental departments should formulate and complete the rules and benchmarks for the discretion of environmental administrative penalties in the region. The Ministry of Ecology and Environment will also set up ldquo, a discretionary calculator of administrative penalties, and functions in the national environmental administrative penalty management system for reference.

Fan:
1. In any of the following circumstances, a heavier punishment may be imposed.
(1) Those who have been punished more than three times (including three times) for similar environmental violations within two years;
(2) discharging atmospheric pollutants beyond the standard during the warning period of heavy polluted weather;
(3) Threatening, abusing, beating, intimidating or retaliating against law enforcement officers in case investigation;
(4) Environmental violations cause environmental pollution across administrative regions;
(5) Environmental violations cause adverse social reactions;
(6) Others with heavy plots.
2. In any of the following circumstances, administrative penalties shall be lightened or mitigated according to law.
(1) Actively eliminating or mitigating the harmful consequences of environmental illegal acts;
(2) Those who are coerced by others to commit environmental illegal acts;
(3) Those who cooperate with the Department of ecological environment in investigating and dealing with environmental illegal acts have made meritorious contributions;
(4) Other administrative penalties are lighter or mitigated according to law.
3. In any of the following circumstances, the punishment may be exempted.
(1) Illegal acts (e.g. & ldquo; construction before approval; & rdquo;) have not resulted in environmental pollution consequences, and enterprises shall implement measures such as closing down or ceasing construction or production on their own;
(2) the duration of illegal activities is short and the pollution is small (e.g. & ldquo; the pollutants discharged in excess of the standard do not exceed 2 hours, and the excess multiple is less than 0.1 times, and the daily discharge of sewage is less than 0.1 tons; the time for non-standard storage of hazardous wastes is less than 24 hours, the quantity is less than 0.01 tons, and the external environment is not polluted by & rdquo); and the rectification is completed on that day;
(3) Other illegal acts are minor and corrected in time without causing harmful consequences.