The Perfection Of The Daily Penalty System Of Environmental Law In China

After the reform and opening up,Chinese economy has achieved leap-forward development.At the same time,based on the concepts of "low illegal cost,high law-abiding cost" and "management after development",some enterprises continue to illegally discharge sewage.The problem of env:ironmental pollution is getting much more serious.The "regulations on Environmental Protection of the Shenzhen Special Economic Zone" followed by the "regulations on Environmental Protection of Chongqing Municipality",which came into being in 2007,for the first time stipulated the system of daily penalty system.The application of the daily penalty system in both cities has achieved good results,which has built a bridge for the introduction of the daily penalty system in our country.Article' 59 of the Environmental Protection Law amended in 2014 brings the daily penalty system into the scope of the law.In order to carry out this system,the "measures for continuous punishment by the competent environmental protection authorities on a daily basis"has further standardized the application of the daily penalty system,such as the scope of application,the way of calculating and punishing,the procedure of implementation,and so on.As an important means to protect the environment,the daily penalty system has been implemented in environmental law enforcement since January 1,2015.There are two main views on the nature of daily penalty system,namely executive penalty and administrative penalty.Through the report on the Annual implementation and Evaluation of the four supporting measures of the New Environmental Protection Law for 2015-2017,published by the Law School of Renmin University of China,it can be found that the number of cases that apply the daily penalty system has increased year by year,with the seizure and arrest and production suspension.Among the five environmental protection measures:seizure,confinement of production,transfer of administrative detention and transfer of suspected crimes to public security organs,the application rate of the daily penalty system has been the lowest in the past three years,while the rate of illegal rebound has continued to decline rapidly compared with other measures.The deterrent power of the daily penalty system began to appear.At the same time,in terms of the number of cases in each legal situation applicable to the daily penalty system,the most applicable case each year is the Article 5,paragraph I of "measures for continuous punishment by Environmental Protection authorities",which is the excess of the standard or the total amount of pollution discharge.The theoretical dilemma of the daily penalty system has caused further problems in the practice of environmental law enforcement,and the problem has become increasingly prominent with time.Despite "the decision of the Ministry of Environmental Protection to amend the "Measures for Continuous Punishment by Days" "issued by the Ministry of Ecology and Environment in 2017 had added a new situation of "unlicensed sewage discharge",the current application of the daily penalty system still can not meet the practical needs.Ecological and environmental departments and their law enforcement person do not have enough understanding of the daily penalty system and lack of awareness of administering according to law.In the process of applying the daily penalty system,they tend to attach more importance to the entity than to the procedure,and little consideration is given to the factors of punishment planning.The way of investigating the legal liability of environmental violators is too rigid,some of them regard the daily penalty system as the only way of environmental punishment,which makes the implementation effect of the daily penalty system greatly reduced.In the construction of daily penalty system,the ecological environmental department should include those illegal acts with high frequency and wide range into the applicable scope of punishment.At the same time,the subjective state of the violator,the ability to pay,the historical record of the violation,the circumstances and the degree of the violation should be taken into account,the standard of environmental penalty discretion should be established,and the days of calculating and punishing should be rationally designed.The department of ecological environment should actively carry out environmental law education,train law enforcement person by specialized environmental science and technology person and environmental law professionals,and improve the quality of environmental law enforcement person.To strengthen the internal and external supervision of environmental law enforcement person and to supervise the legal responsibility of the ecological environmental department,the result of law enforcement is legitimate and acceptable.When the daily calculation and punishment system is unable to urge environmental violators to carry out rectification and reform,it is necessary to flexibly link the daily calculation and punishment system with other administrative penalties,criminal penalties,and enterprise environmental credit evaluation,so as to conscientiously increase the penalties and force the enterprises to rectify and reform on their own and effectively crack down on environmental violations.