Administrative Law Regulation Of Evading Supervision And Discharging Pollutants

Pollution prevention plays an important role in the field of ecological civilization.Our country has experienced an ’extensive way’ of economic growth for decades,water,air,soil and other environmental resources have been seriously polluted and damaged.With the acceleration of the rule of law of the country,environmental protection laws are keeping trying to find a feasible way to regulate the illegal discharge by means of both basic law and specific regulations.The Environmental Protection Law which is revised in 2014 has significantly strengthened the regulation of various illegal discharges of pollutants,in particular,the behavior that is to discharge pollutants by means of evading supervision is strictly prohibited.Meantime,strict regulatory measures ware established such as fines,business suspensions,closures,and administrative detention.However,since the Environmental Protection Law was revised in 2014,many reports about illegal discharge have been found in the media,these include illegal discharge of sewage through hidden pipes,abnormal operation of environmental protection facilities,tampering with falsified monitoring data.The phenomenon of evading supervision and discharging pollutants has been difficult to investigate and it is very harmful to the environment.It shows that the environment law is a complex which attributes such as administrative law,environmental law,and social law.It is necessary to mobilize the enthusiasm of all parties and use various regulatory tools to timely detect,accurately identify,and effectively punish evading supervision and illegal discharge of pollutants.In fact,there is a serious information asymmetry between the environmental protection department as the regulator and the pollutant discharge unit of the regulated person.In addition,there are serious multiple subjects and fragmentation of legal norms in the field of environmental supervision,which leads to the evasion of supervision and illegal discharge of pollutants.Through the collection of information,with the coordinate efforts made by government departments,pollutant discharge units,and the public,the initiative of pollutant discharge units in environmental information will be strengthened.Using the multi-party reporting mechanism can effectively overcome the phenomenon of information asymmetry and establish a discovery mechanism for evading supervision and emission of pollutants.The four typical behaviors of evading supervision and discharging pollutants enumerated by law increase the difficulty of environmental supervision,making it impossible for the authorities to identify the illegal actions and to make quick actions.Whether the sewage outlet is legal,the behavior of evading supervision and discharging pollutants can be divided into two types:the one is to discharge pollutants through illegal discharge outlets.That is,set up hidden pipes,seepage wells and seepage pits,and etc.in order to evade supervision;the other is to discharge pollutants through legal Sewage outlets,but the abnormal operation of pollution prevention and control facilities,falsification of monitoring data,etc.to evade supervision and discharge pollutants.Each type of behavior of evading supervision and discharging pollutants has its unique constituent elements.On analysis of each case,an accurate identification mechanism for evading supervision and discharging pollutants should be established,and the administrative supervision and law enforcement of environmental protection departments are improved in the aspect of effectiveness.Unfortunately,the new Environmental Protection Law has defects in the allocation of legal responsibilities for evading supervision and discharge of pollutants.For this type of illegal behavior,it only sets the administrative penalty of administrative detention for the one who is responsible for it,and imposes an administrative penalty on the natural person responsible for it.There is no administrative penalty for illegal polluters.Although the Law on the Prevention and Control of Air Pollution and the Law on the Prevention and Control of Water Pollution,which were later amended,respectively made up for the administrative penalties for illegal pollutant discharge units,they failed to reflect the strictness and systematicness of the lawmakers’ punishment for evading supervision and illegal pollutant discharge.Poor and needs to be further improved.From the perspective of legal theory,the provision of "limit production and stop production for rectification",which regulates illegal acts that evade supervision,should be changed from the attribute of administrative order to the type of administrative punishment,so as to improve the administrative punishment through the combination of ability punishment,qualification punishment and property punishment A standardized system will improve the deterrent force against administrative penalties for evading supervision and discharge of pollutants.In addition,the new revised "Administrative Punishment Law" also raises the issue of the subjective elements of administrative penalties for evading supervision and discharging pollutants.Since the law sets the terms of subjective intention very indirectly,it is necessary to interpret the "evasion of supervision" to determine the composition of the subjective intention element in administrative punishment.Furthermore,in the process of administrative punishment for evading supervision and discharging pollutants,it is not only necessary to clarify the existence of the subjective intention of the actor,but also to emphasize that the environmental protection authorities need to prove of the subjective intention in the process of implementing administrative punishment.