Press conference on the provisions of Hainan Province on the discretion benchmark of ecological environment administrative punishment
(July 21, 2021)
陳曦
Good morning, ladies and gentlemen. Welcome to the press conference organized by Hainan Provincial Information Office. The main content of today's press conference is to introduce and explain the revision of the benchmark provisions on discretion of ecological and environmental administrative punishment in Hainan Province. Present at today's press conference were Mr. Kong Linghui, deputy director of the Provincial Department of ecological environment, Mr. Ye Hongchun, director of the administrative law enforcement bureau of ecological environment protection of the Provincial Department of ecological environment, and Mr. Wu Rong, deputy director of the administrative law enforcement bureau of ecological environment protection of the provincial Department of ecological environment. First of all, let's ask deputy director Kong Linghui to introduce the relevant situation.
Good morning, ladies and gentlemen. Welcome to the press conference organized by Hainan Provincial Information Office. The main content of today's press conference is to introduce and explain the revision of the benchmark provisions on discretion of ecological and environmental administrative punishment in Hainan Province. Present at today's press conference were Mr. Kong Linghui, deputy director of the Provincial Department of ecological environment, Mr. Ye Hongchun, director of the administrative law enforcement bureau of ecological environment protection of the Provincial Department of ecological environment, and Mr. Wu Rong, deputy director of the administrative law enforcement bureau of ecological environment protection of the provincial Department of ecological environment. First of all, let's ask deputy director Kong Linghui to introduce the relevant situation.
孔令輝
Good morning, friends from the press! First of all, I would like to take this opportunity to thank all media friends for their long-term concern and support for the ecological and environmental protection of Hainan Province. I hope we will continue to strengthen contacts and jointly promote the construction of ecological civilization in Hainan. On the occasion of the 100th anniversary of the founding of the Communist Party of China, I am pleased to exchange with you on the revision of the benchmark provisions on the discretion of ecological and environmental administrative penalties in Hainan Province (hereinafter referred to as the benchmark provisions). At present, our office has issued the benchmark provisions and officially implemented them on July 15. In order to let you know the main contents of the benchmark provisions, today I will mainly introduce four aspects of the benchmark provisions: the first is the background significance of the revision, the second is the basis and process of the revision, the third is the key contents, and the fourth is the next work plan.
The discretion of administrative punishment refers to the authority to comprehensively determine the types and ranges of administrative punishment to be applied according to the types and ranges of administrative punishment stipulated in laws, regulations and rules, taking into account the illegal circumstances, illegal means, social harm consequences and other factors. Standardizing the discretion of administrative punishment is an important content of the requirements of the State Council on standardizing administrative law enforcement, and it is also an important link to further deepen the responsibility system of administrative law enforcement. In January 2021, the construction plan for China under the rule of law (2020-2025) issued by the CPC Central Committee clearly requires that the benchmark system of administrative discretion should be fully implemented and the discretion of law enforcement should be standardized. Comprehensively standardizing the discretion of administrative punishment and reasonably limiting the discretion range of administrative punishment are not only the needs of ecological environment administrative law enforcement organs to standardize administrative power and administrative law enforcement behavior and further promote administration according to law, but also the needs of building a system to prevent and punish corruption. Therefore, according to the formulation, modification and repeal of relevant laws, regulations and rules, revising and improving the discretion benchmark of ecological environment administrative punishment in our province will help to further prevent power abuse from the system and mechanism level, improve the level of ecological environment administrative law enforcement, and create a legal business environment for the construction of Hainan free trade port.
The discretion of administrative punishment refers to the authority to comprehensively determine the types and ranges of administrative punishment to be applied according to the types and ranges of administrative punishment stipulated in laws, regulations and rules, taking into account the illegal circumstances, illegal means, social harm consequences and other factors. Standardizing the discretion of administrative punishment is an important content of the requirements of the State Council on standardizing administrative law enforcement, and it is also an important link to further deepen the responsibility system of administrative law enforcement. In January 2021, the construction plan for China under the rule of law (2020-2025) issued by the CPC Central Committee clearly requires that the benchmark system of administrative discretion should be fully implemented and the discretion of law enforcement should be standardized. Comprehensively standardizing the discretion of administrative punishment and reasonably limiting the discretion range of administrative punishment are not only the needs of ecological environment administrative law enforcement organs to standardize administrative power and administrative law enforcement behavior and further promote administration according to law, but also the needs of building a system to prevent and punish corruption. Therefore, according to the formulation, modification and repeal of relevant laws, regulations and rules, revising and improving the discretion benchmark of ecological environment administrative punishment in our province will help to further prevent power abuse from the system and mechanism level, improve the level of ecological environment administrative law enforcement, and create a legal business environment for the construction of Hainan free trade port.
二、Basis and process of revision
The revision of the benchmark provisions is mainly based on the administrative punishment law of the people's Republic of China, the Environmental Impact Assessment Law of the people's Republic of China, the law of the people's Republic of China on the prevention and control of environmental pollution by solid waste, the regulations on the administration of pollutant discharge permits and other relevant laws, regulations and rules, and in combination with the guidance of the Ministry of ecological environment.
The original benchmark provisions were issued for Trial Implementation in January 2019. According to the provisions of Hainan Province on the formulation and filing of administrative normative documents, the trial validity period of normative documents shall generally not exceed 3 years. In order to ensure the legitimacy and continuity of the benchmark provisions and timely understand the trial implementation of the benchmark provisions, our department established an investigation team at the end of 2019 to carry out preliminary investigation, solicit the opinions of ecological environment departments and comprehensive administrative law enforcement departments of cities and counties for many times, and combine the formulation, modification and repeal of relevant laws, regulations and rules when the time is ripe, Start the revision of the benchmark provisions. During the revision process, our department held regional symposiums in Changjiang, Ledong, Wanning and Haikou, fully listened to the opinions and suggestions of the administrative departments of cities and counties and the front-line law enforcement departments, and organized domestic senior law enforcement experts in the field of ecological environment to review the revised draft, so as to ensure that the contents of the benchmark provisions are legal, reasonable, fair and just.
三、Key content
The benchmark provisions are composed of "applicable rules" and "discretionary benchmarks", including 17 "applicable rules", 11 categories of "discretionary benchmarks" and 292 law enforcement matters. The details are as follows:
（1） We will fully implement the benchmark system of administrative discretion
According to the requirements of China's construction plan for the rule of law (2020-2025), in accordance with environmental protection laws, regulations and rules, and in combination with the list of comprehensive administrative law enforcement matters of ecological and environmental protection in Hainan Province (2020 Edition), the administrative law enforcement matters of ecological and environmental protection are comprehensively sorted and updated, except for some law enforcement matters without discretion or punishment standards, For the enforcement of ecological environment administrative punishment, the "discretion benchmark" shall be prepared item by item. The revised "discretionary benchmark" was increased from the original 5 categories to 11 categories, covering construction projects, pollutant discharge permits, air pollution, water pollution, soil pollution, solid waste pollution, nature reserves, cleaner production, emergency response, marine shore source pollution and others. The number of law enforcement matters was increased from 57 to 292, Take the lead in realizing the full coverage of the discretion benchmark for law enforcement matters, and realize the full implementation of the administrative discretion benchmark in the field of ecological and environmental administrative punishment.
（2） Establish an exemption list system.
According to the latest provisions of the administrative punishment law (revised in 2021) on no administrative punishment, 17 cases of no punishment are stipulated in the "applicable rules". The concretization, standardization and refinement of the matters that are not subject to administrative punishment is an important measure to promote inclusive and prudent supervision, and regulate the legitimate exercise of power by administrative law enforcement organs with concise exemption matters, It can improve law enforcement efficiency, optimize the business environment, stimulate market vitality and promote high-quality economic and social development.
（3） "Reducing the burden" for small and micro enterprises according to law.
Combined with the characteristics of many small and micro enterprises in our province, especially in the initial stage, small and micro enterprises are prone to minor violations due to their weak awareness of legality and compliance. The applicable rules of the benchmark provisions specify that small and micro enterprises, individual industrial and commercial households or natural persons who have less subjective malice and meet the conditions of lighter and mitigated punishment can be punished according to the lowest benchmark, Under certain conditions, the "unintentional loss" behavior of small and micro enterprises shall be given the opportunity of fault tolerance and correction, reflect the "temperature" of law enforcement, avoid "one size fits all" law enforcement, provide a more tolerant institutional environment for the development and growth of market subjects, and enhance the confidence of enterprise development.
（4） Establish an administrative law enforcement mechanism of tempering justice with mercy.
On the basis of the list of exemption from punishment and the reduction of punishment for small and micro enterprises that meet specific conditions, actively explore "humanized law enforcement" and "flexible law enforcement", stipulate 10 specific circumstances in the "applicable rules" that should be reduced and mitigated. If the violation is minor and can actively eliminate or mitigate the harmful consequences of the violation, it shall be given a reduction within the range of legal punishment Mitigation of punishment. At the same time, adhere to the principle of "tempering justice with mercy" and "combining hardness with softness". For 9 illegal situations such as serious illegal circumstances and "unrepentant despite repeated education", we will impose severe penalties within the range of legal penalties, and implement the strictest ecological and environmental protection system.
（5） Optimize the basic facts and punishment benchmark.
If there is an upgraded punishment in a clause, it not only stipulates the punishment for basic violations, but also stipulates the punishment for failure to correct or refuse to correct within the time limit. The original discretion benchmark sets the basic violations as minor and general, and the failure to correct or refuse to correct within the time limit is set as serious and particularly serious, that is, there are only two basic facts and punishment benchmarks respectively. The revised "discretion benchmark" distinguishes the illegal acts with upgraded punishment matters, and sets four basic facts and punishment benchmarks to ensure that the punishment amount can reach the upper and lower limits. At the same time, for individual matters of construction projects and some matters of solid waste, the punishment amount range is very high. Five levels of basic facts and punishment benchmarks are set to reduce the punishment benchmark range between each level of basic facts and further optimize the punishment benchmark amount.
（6） Improve the discretion factors of "discretion benchmark".
In combination with the characteristics of each type of illegal act, the discretionary factors shall be supplemented and improved. First, the enterprise scale, permit category of pollutant discharge units and project location shall be increased as the regulatory discretionary factors. In the category of water, gas and other pollution, it shall be determined separately in combination with the scale of the enterprise; In the category of violation of pollutant discharge permit management system, combined with the management types of pollutant discharge enterprises, the illegal subjects are divided into key management and simplified management, which shall be judged respectively; In the illegal matters of construction projects, whether the project construction is located in a sensitive area shall be taken as a discretionary factor. Second, refine the categories of pollutants. Waste gas and waste water shall be subdivided into toxic and harmful categories and general industrial categories, and shall be determined separately. Third, with reference to the guidance on further standardizing the discretion of environmental administrative punishment issued by the Ministry of ecology and environment, factors such as pollutant discharge destination (region), excessive pollutant discharge status and project construction site are added to some "discretion benchmarks". Make the discretion of administrative punishment more objective, comprehensive and accurate.
（7） Add a discretionary benchmark for individual punishment for "double punishment" law enforcement matters.
The "double punishment" of administrative punishment refers to the legal liability system in which the unit or organization that violates the law shall not only be subject to administrative punishment according to law, but also (or may) be subject to administrative punishment according to law to the person in charge and other persons directly responsible of the unit. For the enforcement matters of "double punishment" in construction projects, air pollution prevention and control, soil pollution prevention and control and solid waste pollution prevention and control that stipulate "double punishment", 18 discretionary benchmarks for individual punishment shall be added to make the discretionary benchmark system more complete.
4、 Next work plan
Our department will earnestly implement the Hainan free trade port law, the administrative punishment law and the requirements of the provincial Party committee and the provincial government on ecological and environmental protection, and guard the green waters and green mountains of Hainan with the strictest ecological and environmental protection system. Strengthen the guidance of law enforcement in cities and counties, constantly optimize law enforcement methods and improve law enforcement efficiency. For law-abiding enterprises with good credit, everything will be disturbed. Take the initiative to track and help enterprises that have unintentionally committed environmental violations or minor violations, and effectively combine punishment with education. The sharp sword is hanging over the seriously polluted illegal enterprises, strengthen the crackdown, increase their illegal costs, make them dare not break the law, don't want to break the law, and consciously abide by the law. At the same time, through law enforcement inspection and case evaluation, cities and counties are urged to exercise the discretion of administrative punishment, so as to contribute to the construction of Hainan free trade port and national ecological civilization pilot zone. Thank you!
陳曦
Now let's enter the reporter's question session. Please inform the name of the media organization you represent before asking questions. Now raise your hand.
Answer a reporter's question
Hainan Radio and Television International Communication and Media Center
It is noted that the items not to be punished in the standard provisions on discretion of ecological environment administrative punishment in Hainan Province have been increased from 3 to 17. What is the difference between the contents not to be punished in this revision and the previous ones?
葉紅春
The administrative punishment law revised in 2021 has made new provisions on the situation of no punishment. The content of no punishment in the revised provisions on the benchmark of discretion of ecological and environmental administrative punishment in Hainan Province is to subdivide the situation of no punishment into three categories in strict accordance with the provisions on no punishment in the administrative punishment law "If the illegal act is minor and corrected in time without causing harmful consequences, no administrative penalty shall be imposed." "if the party violates the law for the first time and the harmful consequences are minor and corrected in time, no administrative penalty may be imposed." "if the party has sufficient evidence to prove that there is no subjective fault, no penalty shall be imposed." There are three situations, including 10 cases in which the illegal act is minor and corrected in time, without causing harmful consequences, and 7 cases in which the first illegal act is minor and corrected in time, and the parties have sufficient evidence to prove that there is no subjective fault.
Second, it defines which violations are minor, such as "the construction unit fails to file the environmental impact registration form of construction project according to law and completes the filing within 7 days from the date of inspection", which is more specific and perfect than the previous general description of "the violations are minor and corrected in time without causing hazardous consequences", Give clear guidance to law enforcement personnel, which is more convenient for front-line law enforcement personnel to operate. Third, if the parties have sufficient evidence to prove that there is no subjective fault and will not be punished, they need to submit their own evidence and prove their innocence before they can be exempted from punishment, unless otherwise provided by laws and regulations.
Fourth, in order to better implement the administrative punishment law, we set the implementation time of the benchmark provisions to be implemented on July 15, 2021 at the same time as the newly revised administrative punishment law. Fifth, "no punishment" is not equal to "exemption". For minor violations that are not punished, the ecological environment law enforcement department will strengthen the publicity and education of the illegal subjects, and carry out correction and education through flexible measures such as ordering correction, administrative warning, administrative interview and administrative guidance. At the same time, strengthen the supervision of "double random and one open" to promote enterprises to consciously abide by the law.
International Tourism Island
There are a large number of small and micro enterprises in our province. Most of these small and micro enterprises have relatively small pollutant discharge and poor economic affordability. How did these factors be considered in the revision of the benchmark provisions on discretion of ecological environment administrative punishment in Hainan Province to achieve the same excessive punishment?
葉紅春
In recent years, in the process of law enforcement, we have noticed that there are many small and micro enterprises in our province, especially in the initial stage. Due to their weak awareness of legality and compliance, they are prone to minor violations, and their economic affordability is poor. In order to effectively avoid the situation of "death upon punishment" and "close upon punishment", Therefore, before the revision, fully investigate and listen to the opinions and suggestions of the front-line law enforcement personnel who have the most say. When formulating the rules, add a clause that "small and micro enterprises, individual industrial and commercial households or natural persons who have less subjective malice for violations and meet the conditions for lighter or mitigated punishment can calculate the punishment amount according to the lowest benchmark", which reflects that under certain conditions, they can give fault tolerance and correction opportunities for the "unintentional loss" behavior of small and micro enterprises, so as to avoid "one size fits all" law enforcement, Provide a more tolerant institutional environment for the development and growth of market players and enhance the development confidence of enterprises. However, not all small and micro enterprises, individual industrial and commercial households or natural persons can calculate the penalty amount according to the lowest discretion benchmark. Firstly, it requires that the subjective malignancy of the illegal subject should be small. Secondly, after the implementation of the illegal act, it is possible to apply the lowest benchmark discretion only if there are other lighter or mitigated circumstances such as actively eliminating or reducing the harmful consequences of the illegal act. It is emphasized here that the subjective malignancy of the illegal subject is small, which limits the discretion of other malignant illegal acts such as "illegal discharge of pollutants by means of evading supervision such as concealed pipes, seepage wells, seepage pits, falsifying monitoring data, or abnormal operation of pollution prevention and control facilities", such as small and micro enterprises, individual industrial and commercial households or natural persons "Illegal discharge of pollutants by means of evading supervision such as concealed pipes, seepage wells, seepage pits, falsifying monitoring data, or abnormal operation of pollution prevention and control facilities" or other illegal acts with serious pollution consequences shall be dealt with strictly and severely in accordance with the law and will not be tolerated.
Haikou Tourism Traffic broadcasting
How does the standard provisions on the discretion of ecological environment administrative punishment in Hainan Province reflect the law enforcement concept of tempering justice with mercy and give consideration to creating a good business environment?
孔令輝
During his visit to Hainan in 2018, the Secretary stressed that green mountains, green water, blue sea and blue sky are Hainan's strongest advantages and greatest capital. Therefore, we always adhere to the strictest ecological and environmental protection system to protect the green water and green mountains in Hainan, which is not only the entrustment of the Secretary, but also the consistent requirement of the Hainan Free Trade Port Law and the provincial Party committee and provincial government.
In the applicable rules part of the benchmark provisions, there are 9 cases of heavier punishment, and in the discretion benchmark part, the punishment range is increased according to the impact of different illegal acts on the environment. Among them, it is clear to severely crack down on the repeated implementation of environmental violations, such as "unrepentant education", causing sudden environmental events, causing major environmental pollution across cities, counties (districts) and administrative regions. Therefore, we will always resolutely crack down on illegal acts that are subjectively vicious, have a bad impact and have a strong response from the masses.
However, we should also give enterprises the opportunity to reform if they take the initiative to eliminate or mitigate the harmful consequences of the illegal act after the implementation of the illegal act, voluntarily confess the ecological environment illegal act that has not been mastered by the law enforcement department, cooperate with the law enforcement department to investigate and deal with the ecological environment illegal act, perform meritorious deeds, or other non subjective factors lead to the illegal act, Enterprises shall be given a lighter or mitigated punishment according to law and regulations. This is also aimed at guiding enterprises to know their mistakes, recognize their mistakes and recognize their penalties. This is also conducive to reducing unnecessary reconsideration and litigation cases and avoiding the waste of unnecessary administrative and judicial resources.
At the same time, after punishment, we have continuously increased publicity and assistance to all kinds of enterprises by increasing law enforcement publicity into the park and encouraging cities and counties to carry out "one-to-one" door-to-door service activities, so as to enable more enterprises to actively learn and consciously abide by the law. Instead of substituting punishment for management, once it is punished, it better reflects the concept of combining punishment and education, so that law enforcement is no longer cold. Since the beginning of this year, we have gone deep into the pharmaceutical industry, natural rubber processing industry and livestock and poultry breeding industry, carried out training activities on the rule of law, actively sent the law to enterprises, and helped enterprises produce and operate legally and in compliance.
In the future, we will continue to uphold the law enforcement concept of tempering justice with mercy, strictly enforce the law and standardize the law, create a fair environment for law enforcement, and resolutely prevent environmental violators from making profits and those who abide by the law from suffering losses. Strive to ensure the legal effect of each environmental administrative punishment case while taking into account the social effect and environmental effect, so as to create a good legal environment for the construction of free trade port.
Haikou network
What factors have been considered in the revision of the standard provisions on discretion of ecological and environmental administrative penalties in Hainan Province?
The revised benchmark provisions strictly abide by the basic principles of legality, rationality, fair and just punishment. First, consider the degree of environmental pollution and ecological damage caused by illegal acts. If the degree of environmental pollution and ecological damage is low, the punishment weight will be correspondingly reduced. On the contrary, if the degree of environmental pollution and ecological damage is large, the punishment weight will be increased accordingly. Second, consider the degree of social impact caused by illegal acts. If the implementation of illegal acts causes people to petition, the punishment weight will be increased accordingly if the impact is bad. Third, consider the specific objects and areas harmed by illegal acts, such as whether the area where the construction project is located belongs to an environmentally sensitive area, whether it conforms to the functional planning area, whether the discharge destination of pollutants is a residential area or an industrial area, whether the pollutants are general pollutants or toxic and harmful pollutants, etc. Fourth, the attitude to correct the illegal act and the measures taken and their effects, such as whether to implement the illegal act, immediately stop the illegal act or take measures to reduce the harmful consequences, and whether to cooperate with the investigation in the process of investigation. Fifthly, whether the violator is a first-time offender or a second offender. If the first implementation of environmental violations meets the situation of no punishment, it can be exempted from punishment. On the contrary, if the violator repeatedly implements ecological environmental violations "despite repeated education", the corresponding punishment weight will be increased. Sixth, the degree of subjective fault of the offender, such as the intentional implementation of environmental violations or the illegal acts caused by sudden failures. Seventh, other factors related to the discretion of administrative punishment, such as whether the enterprise belongs to a key management unit.
Hainan Special Zone News
The original standard provisions on discretion of ecological environment administrative punishment in Hainan Province only set 57 law enforcement matters, which were increased to 292 after revision. Why is there such a significant change?
Wu Rong
First, in order to implement the requirements of "comprehensively implementing the benchmark system of administrative discretion and standardizing the discretion of law enforcement" put forward in the construction plan of China under the rule of law (2020-2025), we are based on the newly revised Environmental Impact Assessment Law of the people's Republic of China, the law of the people's Republic of China on the prevention and control of environmental pollution by solid waste and the regulations on the administration of pollutant discharge permits Laws and regulations, combined with the list of comprehensive administrative law enforcement matters of ecological and environmental protection in Hainan Province (2020 Edition), comprehensively combed and updated the matters of ecological and environmental administrative law enforcement. Except for some law enforcement matters that do not have discretion space or punishment standards, the "discretion benchmark" is basically prepared item by item for the matters of ecological and environmental administrative punishment and law enforcement.
Second, in the process of preliminary investigation, the law enforcement departments of cities and counties generally reflected that the original 57 discretionary benchmarks for law enforcement matters could not meet the current needs of comprehensive administrative law enforcement for ecological and environmental protection, and hoped to increase the discretionary benchmarks for other law enforcement matters. This is also a response to the voice of cities and counties. The revision is to prepare 292 discretionary benchmarks on the basis of fully summarizing the experience of the original benchmark provisions and listening to the opinions and suggestions of front-line law enforcement personnel. A discretion benchmark table is prepared for each punishment, which is convenient for city and county law enforcement personnel to calculate the punishment amount. It is simple and practical, and even new law enforcement personnel can get started quickly.
Third, from the perspective of Strictly Standardizing, fair and civilized law enforcement, it is necessary to promote the standardized exercise of administrative discretion by comprehensively implementing the benchmark system of administrative discretion and using the means of self-control of administrative discretion.
Chen Xi
That's the end of today's press conference. Thank you all in the press.
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