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16 key points! The new Administrative Penalty Measures for Ecological Environment have been implemented on July 1st


Time:

2023-07-07

16 key points! The new Administrative Penalty Measures for Ecological Environment have been implemented on July 1, 2023

 
The newly revised "Administrative Penalty Measures for Ecological Environment" (hereinafter referred to as the new "Penalty Measures") will come into effect on July 1, 2023.
 
The new "Penalty Measures" is a revision of the "Environmental Administrative Penalty Measures" issued in 2010, with an increase in the number of clauses from the original 82 to 92. The overall framework remains basically unchanged, and the total chapter is still eight chapters.
 

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Chapter 1 General Provisions
Chapter 2 Implementation Subject and Jurisdiction
Chapter 3 General Procedures
Section 1 Filing
Section 2 Investigation and Evidence Collection
Section 3 Case Review
Section 4 Notification and Hearing
Section 5 Legal Review and Collective Discussion
Section 6 Decisions
Section 7 Information Disclosure
Chapter 4 Summary Procedure
Chapter 6 Closing and Filing
Chapter 7 Supervision
Chapter 8 Supplementary Provisions
A total of 12002 words

Chapter 1 General Provisions
Chapter 2 Implementation Subject and Jurisdiction
Chapter 3 General Procedures
Section 1 Filing
Section 2 Investigation and Evidence Collection
Section 3 Case Review
Section 4 Notification and Hearing
Section 5 Handling Decision
Chapter 4 Summary Procedure
Chapter 5 Execution
Chapter 6 Closing and Filing
Chapter 7 Supervision
Chapter 8 Supplementary Provisions
A total of 8855 words

 

 

Specifically, the new "Punishment Measures" have the following 16 key areas:

 

01. Extension of the time limit for filing ecological and environmental penalties

Article 18 of the new "Punishment Measures" changes the time limit for filing a case from the original "7 working days" to "within 15 days", and also adds a provision that in special circumstances, with the approval of the person in charge of the agency, it can be extended by 15 days.

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Article 18: In addition to administrative penalties that can be imposed on the spot in accordance with the law, the ecological environment regulatory department shall conduct a preliminary examination of suspected violations of ecological environment protection laws, regulations, and rules, and decide whether to file a case within 15 days. In special circumstances, an extension of fifteen days may be granted with the approval of the person in charge of this authority. Unless otherwise stipulated by laws and regulations. Article 22: The competent environmental protection department shall conduct a preliminary examination of suspected violations of environmental protection laws, regulations, and rules, and decide whether to file a case within 7 working days.

 

 

02. The time limit for punishment decisions has been changed from "3 months" to "90 days" from the date of filing the case

Article 60 of the new Administrative Penalty Law stipulates that administrative organs shall make administrative penalty decisions within 90 days from the date of filing administrative penalty cases.
Article 57 of the new "Punishment Measures" connects with Article 60 of the new "Administrative Penalty Law", changing the time limit for making punishment decisions from "3 months" from the date of filing the case to "90 days".

At the same time, provisions have been added that "due to the complexity of the case or other reasons, with the approval of the person in charge of the ecological environment department, an extension of 30 days may be granted" and "if the case is particularly complex or there are other special circumstances, and a decision cannot be made after the extension, the person in charge of the ecological environment department shall collectively discuss and decide whether to continue the extension. If the decision is made to continue the extension, the extension period shall not exceed 30 days".

For cases with particularly complex circumstances, there can be a maximum processing time of 150 days, which is in line with the needs of law enforcement practice. With the rapid development of the economy and society, many industrial enterprises have complex technological processes and more hidden violations, requiring longer processing time.

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Article 57: The competent ecological environment department shall make a decision on the handling of the case within 90 days from the date of filing. If a decision cannot be made within the prescribed time limit due to the complexity of the case or other reasons, an extension of 30 days may be granted with the approval of the head of the ecological environment regulatory department. If the case is particularly complex or there are other special circumstances, and a decision cannot be made after the extension, the head of the ecological environment regulatory department shall collectively discuss and decide whether to continue the extension. If the decision is made to continue the extension, the extension period shall not exceed thirty days. During the case handling process, the time for suspension, hearing, announcement monitoring (testing), evaluation, appraisal, identification, and delivery shall not be included in the case handling period referred to in the preceding paragraph.

Article 55: Administrative penalties for environmental protection shall be decided within 3 months from the date of filing. The time for hearing, announcement, monitoring, appraisal, and delivery during the case handling process is not included in the deadline.

 

03. Add "suspension", "testing", "evaluation", and "determination" that are not included in the deadline for handling cases

Article 55 of the original Environmental Administrative Penalty Measures stipulates that "the time for hearing, announcement, monitoring, appraisal, and delivery during the case handling process shall not be included in the deadline".

The new "Punishment Measures" continue to clarify in Article 57 (2) that "hearing", "announcement", "monitoring", "appraisal", and "delivery" are not included in the deadline for handling cases, and also add "suspension", "testing", "evaluation", and "determination" to not be included in the deadline for handling cases, in accordance with the newly added needs for handling cases in law enforcement practice in recent years.

 

04. Clarify the time limit for statements, defenses, and hearings

The right to state, defend, and hear is an important right of the administrative counterpart. The original Environmental Administrative Penalty Measures did not specify the time limit for applying for statements, defenses, and hearings.

In law enforcement practice, in 2006, the former State Environmental Protection Administration issued the "Reply on the Time Limit for Listening to Statements and Defense during the Implementation of Administrative Punishments" (Huan Han [2006] No. 262), which stipulated that "the time limit for parties to make statements and defend shall be seven days from the date of receiving the prior notice".

Article 64 of the Administrative Penalty Law stipulates that "if a party requests a hearing, it shall be submitted within five days after the administrative organ notifies it; the administrative organ shall notify the party and relevant personnel of the time and place of the hearing seven days before the hearing is held.

The new "Punishment Measures" connect with the relevant provisions of the "Administrative Penalty Law", clarifying in Article 44 that the time limit for statement and defense is "within five days after receiving the notification letter", and requiring "the ecological environment regulatory department shall inform the parties of the proposed administrative penalty content, facts, reasons, basis, and the parties' rights to statement, defense, and request hearing in accordance with the law before making an administrative penalty decision".

The new "Punishment Measures" clarify the time limit for the hearing in Article 47, which is also to be proposed within five days after the notification of the ecological environment regulatory department, and require the ecological environment regulatory department to notify the parties and relevant personnel of the time and place of the hearing seven days before the hearing is held.

 

05. Clarify the definition of working days within ten days

Given that in law enforcement practice, there is always a dispute over whether the term within ten days is a "working day" or a "natural day". Article 85 of the new Administrative Penalty Law clearly states that the provisions of "two days", "three days", "five days", and "seven days" in this law refer to working days, excluding statutory holidays.

Article 69 of the Administrative Compulsory Law also clearly stipulates that "the term within ten days in this law refers to working days, excluding statutory holidays".

Therefore, Article 90 of the new "Punishment Measures" clearly stipulates that the provisions of "three days", "five days", and "seven days" in these measures refer to working days, excluding statutory holidays.

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Article 90: The provisions of "three days", "five days", and "seven days" in these Measures refer to working days, excluding statutory holidays. The start date of the period is not counted. If the last day of the expiration of the period is a holiday, the day after the holiday shall be the date of the expiration of the period. The period does not include transit time, and if the administrative penalty document is mailed before the expiration date, it is deemed to be within the validity period. Article 79: Except for specifying working days (excluding holidays), other periods shall be calculated based on natural days in accordance with the relevant provisions of these Measures. The start date of the period is not counted. If the last day of the expiration of the period is a holiday, the day after the holiday shall be the date of the expiration of the period. The period does not include transit time, and if the administrative penalty document is mailed before the expiration date, it is deemed to be within the validity period.

 

06. Types of supplementary ecological environment penalties

The new "Punishment Measures", in accordance with the provisions of the new "Administrative Penalty Law" on the types of punishments, have added punishment types such as "circulating criticism", "reducing qualification levels", "restricting production and business activities", "ordering closure", and "restricting employment".

At the same time, in accordance with the newly revised ecological environment laws and regulations in recent years, penalties for illegal activities have been added, including "no application for administrative license within a certain period of time", "order to stop production for rectification", "order to demolish within a specified period of time", and "prohibit employment".

 

Administrative Penalty Law (Revised in 2017)

Administrative Penalty Law (Revised in 2021)

Administrative Penalty Measures for Ecological Environment (2023)

Article 8 Types of administrative penalties:
(1) Warning;
(2) Fines:
(3) Confiscation of illegal gains and confiscation of illegal property;
(4) Order the suspension of production and business operations;
(5) Temporary suspension or revocation of licenses, temporary suspension or revocation of licenses;
(6) Administrative detention;
(7) Other administrative penalties stipulated by laws and administrative regulations.

Article 9 Types of administrative penalties:
(1) Warnings and notifications of criticism;
(2) Fines, confiscation of illegal gains, and confiscation of illegal property;
(3) Temporarily withhold licenses, lower qualification levels, and revoke licenses;
(4) Restricting the conduct of production and business activities, ordering suspension of production and business, ordering closure, and restricting employment;
(5) Administrative detention;
(6) Other administrative penalties stipulated by laws and administrative regulations.

Article 8 According to laws and administrative regulations, the types of administrative penalties for ecological environment include:
(1) Warnings and notifications of criticism;
(2) Fines, confiscation of illegal gains, and confiscation of illegal property;
(3) Suspend the license, lower the qualification level, revoke the license, and not apply for administrative license within a certain period of time;
(4) Restricting the conduct of production and business activities, ordering suspension of production and rectification, ordering suspension of production and business, ordering closure, restricting employment, and prohibiting employment;
(5) Order the demolition within a specified period of time;
(6) Administrative detention;
(7) Other types of administrative penalties stipulated by laws and administrative regulations.

 

For example, in the "Regulations on the Administration of Pollutant Discharge Permits" implemented on March 1, 2021, Article 40 stipulates that "if a pollutant discharge unit applies for a pollution discharge permit through unfair means such as deception and bribery, the approval department shall revoke its pollution discharge permit in accordance with the law, impose a fine of not less than 200000 yuan but not more than 500000 yuan, and shall not apply for a pollution discharge permit again within three years." This is the punishment of "not applying for an administrative permit within a certain period of time".

For example, the Soil Pollution Prevention and Control Law, Article 90 stipulates that If a unit entrusted to conduct soil pollution investigation, soil pollution risk assessment, risk control effect assessment, and remediation effect assessment activities issues false investigation reports, risk assessment reports, risk control effect assessment reports, or remediation effect assessment reports, the local ecological environment regulatory department of the local people's government shall impose a fine of not less than 100000 yuan but not more than 500000 yuan; if the circumstances are serious, it is prohibited to engage in the above-mentioned business The punishment of 'prohibiting employment'.

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Article 8: According to laws and administrative regulations, the types of administrative penalties for ecological environment include: (1) warning, notification of criticism; (2) Fines, confiscation of illegal gains, and confiscation of illegal property; (3) Suspend the license, lower the qualification level, revoke the license, and not apply for administrative license within a certain period of time; (4) Restricting the conduct of production and business activities, ordering suspension of production and rectification, ordering suspension of production and business, ordering closure, restricting employment, and prohibiting employment; (5) Order the demolition within a specified period of time; (6) Administrative detention; (7) Other types of administrative penalties stipulated by laws and administrative regulations. Article 10 According to laws, administrative regulations, and departmental rules, the types of environmental administrative penalties include: (1) warnings; (2) Fine; (3) Order to suspend production for rectification; (4) Order suspension of production, business, or closure; (5) Suspending or revoking licenses or other documents with a licensing nature; (6) Confiscation of illegal gains and confiscation of illegal property; (7) Administrative detention; (8) Other types of administrative penalties established by laws and administrative regulations.

 

According to the new Administrative Penalty Law and newly revised ecological environment laws and regulations in recent years, penalties for illegal activities have been added. These types of penalties have been supplemented in the new Punishment Measures, further improving the basic types of ecological environment administrative penalties, namely property penalties, behavioral qualification penalties, personal freedom penalties, and reputation penalties, making the classification of ecological environment penalties more scientific and accurate.

 

07. Adding electronic data as evidence of punishment

In the field of ecological and environmental law enforcement, the need to use automatic monitoring data to determine whether the pollution discharge behavior of enterprises is legal is becoming increasingly common. However, there have been doubts about whether automatic monitoring data can be used as law enforcement evidence due to insufficient legal basis.
Automatic monitoring data is essentially electronic data. Article 46 of the new Administrative Penalty Law specifies that the evidence for punishment includes documentary evidence, physical evidence, audio-visual materials, electronic data, witness testimony, statements of the parties, expert opinions, inspection records, and on-site records. This is the first time that automatic monitoring data can be used as law enforcement evidence in the law.

 

Article 26 of the new "Punishment Measures" is connected with Article 46 of the new "Administrative Penalty Law", and electronic data can be added as evidence of ecological environment administrative penalties. At the same time, it is also clear that evidence must be verified to be true before it can be used as the basis for determining the facts of the case. Evidence obtained through illegal means shall not be used as the basis for determining the facts of the case.

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Article 26 Evidence of administrative penalties for ecological environment includes: (1) documentary evidence; (2) Material evidence; (3) Audiovisual materials; (4) Electronic data; (5) Witness testimony; (6) The statements of the parties involved; (7) Appraisal opinions; (8) Inspection records, on-site records. Evidence must be verified before it can be used as the basis for determining the facts of the case. Evidence obtained through illegal means shall not be used as a basis for determining the facts of the case.

Article 32: Evidence of environmental administrative penalties shall mainly include documentary evidence, physical evidence, witness testimony, audio-visual materials and computer data, statements of parties, monitoring reports and other appraisal conclusions, on-site inspection records, and other forms of evidence. Such evidence shall comply with laws, regulations, rules, and the provisions of the Supreme People's Court on administrative law enforcement and administrative litigation evidence, and can only be used as the basis for determining facts after verification.

 

08. Rules for refining monitoring data as evidence

In order to further standardize the application of automatic monitoring data in environmental law enforcement, and in combination with the experience of applying automatic monitoring in the Incineration power generation industry in recent years to implement off-site regulatory law enforcement, as well as the experience of carrying out pilot automatic monitoring data labeling in typical industries such as thermal power, cement, and paper making, Article 30 of the new Punishment Measures puts forward more detailed requirements for automatic monitoring data as evidence of law enforcement.

Article 30 of the new "Punishment Measures" clearly stipulates that "marked automatic monitoring data can be used as evidence to determine the facts of the case", which is of great significance for promoting off-site supervision and law enforcement mainly based on automatic monitoring of pollution sources.

In July 2022, the Ministry of Ecology and Environment issued the "Rules for the Marking of Automatic Pollutant Emission Monitoring Equipment", clarifying that automatic monitoring equipment markings include three types of markings: "automatic monitoring equipment maintenance", "data completion", and "data validity". To ensure the authenticity, accuracy, and effectiveness of automatic monitoring data, the use of information technology provides a more convenient and efficient way for pollutant discharge units to report abnormal data, object appeals, and self certification and compliance with the law.

In law enforcement practice, there is another issue related to the effectiveness of automatic monitoring data, which has long plagued law enforcement personnel. It is that when on-site monitoring data is inconsistent with automatic monitoring data, which one should prevail, that is, which one can be used as law enforcement evidence.

In 2016, the Ministry of Ecology and Environment issued a reply on the issue of evidence application when online monitoring data of pollution sources are inconsistent with on-site monitoring data, On site monitoring can be seen as a comparative monitoring of online monitoring equipment of enterprises. If the on-site monitoring data during the same period is inconsistent with the online monitoring data that has been reviewed for effectiveness, and the on-site monitoring data meets legal monitoring standards and methods, the on-site monitoring data shall be used as priority evidence

 

Therefore, in this revision of the "Punishment Measures", it is clear in Article 30 that "if on-site monitoring (testing) data during the same period is inconsistent with automatic monitoring data, and on-site monitoring (testing) meets legal monitoring standards and methods, the on-site monitoring (testing) data shall be used as evidence to determine the facts of the case

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Article 30 Pollutant discharge units shall be responsible for the authenticity and accuracy of automatic monitoring data in accordance with the law, and shall not tamper or forge them. Pollutant discharge units in industries that implement automatic monitoring data labeling rules shall label their data in accordance with the regulations of the competent ecological and environmental department of the State Council. The marked automatic monitoring data can be used as evidence to determine the facts of the case. If the on-site monitoring (testing) data during the same period is inconsistent with the automatic monitoring data, and the on-site monitoring (testing) meets the statutory monitoring standards and methods, the on-site monitoring (testing) data shall be used as evidence to determine the facts of the case. Article 37: When supervising and inspecting pollutant discharge units, the competent environmental protection department may conduct on-site real-time sampling, and the monitoring results can serve as evidence to determine whether the pollutant discharge exceeds the standard.

 

09. New monitoring reports and appraisal opinions should be communicated to the parties involved

In order to protect the legitimate rights and interests of administrative law enforcement counterparts, Article 29 of the new "Punishment Measures" requires that the ecological environment regulatory department, after obtaining a monitoring (testing) report or appraisal opinion, shall inform the parties concerned of the monitoring (testing) and appraisal results.

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Article 29: When conducting on-site inspections, the competent ecological environment department may conduct on-site sampling in accordance with relevant technical specifications, and the monitoring (testing) data obtained may serve as evidence for determining the facts of the case. Law enforcement personnel should record the sampling situation in the on-site inspection (investigation) record, and may take photos or videos to record the sampling situation. After obtaining a monitoring (testing) report or appraisal opinion, the ecological environment regulatory department shall inform the parties concerned of the monitoring (testing) appraisal results. Article 36: The competent environmental protection department may use online monitoring or other technical monitoring methods to collect evidence of illegal activities. The validity data recognized by the competent environmental protection department can be used as evidence for determining illegal facts.

 

10. Increase the disclosure of ecological and environmental punishment information

The new "Punishment Measures" add a separate section on "Information Disclosure" in Chapter 3 "Ordinary Procedures", consisting of 6 articles from Article 61 to Article 66, which provide detailed provisions on the subject of disclosure, the content of disclosure, the circumstances of non disclosure, privacy protection, the duration of disclosure, and withdrawal of disclosure.

The original Measures for Environmental Administrative Penalty only stipulated in Article 72 that "except for Classified information, technical secrets, trade secrets and personal privacy, administrative penalty decisions shall be disclosed to the public."

It should be noted that Article 65 of the new "Punishment Measures" requires that punishment decisions should be made public within seven days from the date of making them.

Article 66 of the new "Punishment Measures" requires that if a public administrative penalty decision is changed, revoked, confirmed illegal or confirmed invalid in accordance with the law, the ecological environment regulatory department shall withdraw the administrative penalty decision information and publicly explain the reasons within three days.

In recent years, the Party Central Committee and the State Council have attached great importance to the implementation of the "three systems" of administrative law enforcement. The law enforcement publicity system is one of the "three systems" of administrative law enforcement.
In December 2018, the General Office of the State Council issued the "Guiding Opinions on the Comprehensive Implementation of the Administrative Law Enforcement Publicity System, the Record System for the Whole Process of Law Enforcement, and the Legal Review System for Major Law Enforcement Decisions" (hereinafter referred to as the "Guiding Opinions"). The newly revised "Administrative Penalty Law" also elevated the "three item system" to a legal provision.

In May 2019, the Ministry of Ecology and Environment issued the "Implementation Opinions on the Legal Review System for Major Law Enforcement Decisions in the Whole Process of Promoting the Administrative Law Enforcement Publicity System in the Ecological Environment System" (hereinafter referred to as the "Implementation Opinions"), guiding the implementation of the "Three Systems" in ecological environment law enforcement and accumulating good practice.
 

11. Clarify the legal review system for major law enforcement decisions

The legal review system for major law enforcement decisions is also one of the "three systems" for administrative law enforcement. The new "Punishment Measures" add a separate section on "Legal Review and Collective Discussion" in Chapter 3 of "Ordinary Procedures", with a total of three articles from Article 49 to Article 51, detailing the scope, content, review opinions and forms of legal review.

Article 49 of the new "Punishment Measures" clearly states that legal review is required for cases involving significant public interests, directly related to the significant rights and interests of the parties or third parties, those that have undergone hearing procedures, and cases that are difficult and complex and involve multiple legal relationships. If it has not undergone legal review or failed the review, no penalty decision shall be made. At the same time, it also authorizes the ecological environment regulatory departments at or above the city level to make specific provisions on the scope of cases that should undergo legal review according to the actual situation.

Article 51 of the new "Punishment Measures" requires legal review to be mainly based on written review; For cases with complex circumstances and significant legal disputes, the ecological and environmental regulatory authorities can organize symposiums and expert argumentation meetings to conduct review work; When the ecological environment regulatory department conducts a legal review, it may request written opinions from relevant experts and legal advisors in the field.

It should be pointed out that the "Guiding Opinions" of the State Administration require "administrative law enforcement agencies at all levels to clarify the specific working institutions responsible for the legal review of major law enforcement decisions in their own units, and ensure that the legal review work is undertaken by institutions and dedicated personnel

The "Implementation Opinions" of the Ministry of Ecology and Environment also stipulate that "the institutions responsible for legal review are generally internal institutions responsible for legal work at all levels of ecological environment departments. If it is not possible to establish separate internal institutions for legal work, specialized legal review positions should be established, and legal review personnel with legal professional background and suitable for legal review tasks should be equipped according to regulations

 

12. Clarify the scope of collective discussion decisions needed

The original "Environmental Administrative Penalty Measures" only stipulated in Article 52 that for complex cases or major illegal acts, severe administrative penalties should be imposed, and the heads of environmental protection competent departments should collectively review and decide.

But it is not clear which situations belong to complex cases or major illegal activities.

Article 52 of the new "Punishment Measures" clarifies five situations where complex circumstances or major illegal behaviors require collective discussion and decision. Firstly, the situation is difficult and complex, involving multiple legal relationships; The second is to impose fines, confiscate illegal gains, or confiscate illegal property with an amount exceeding 500000 yuan; The third is to revoke the license certificate and not apply for administrative license within a certain period of time; The fourth is to order suspension of production and rectification, suspension of production and business, closure, restriction of employment, or prohibition of employment; The fifth is other cases that the head of the ecological environment regulatory department believes should be submitted for collective discussion.

 

13. Clarify the system for recording the entire process of law enforcement

The system of recording the entire process of law enforcement is also one of the "three systems" of administrative law enforcement. The new "Punishment Measures" have established a systematic system for recording the entire process of law enforcement, which records all aspects of administrative law enforcement through written, audio-visual records, and other forms. It is comprehensive and systematically archived and preserved, achieving traceable and traceable management throughout the law enforcement process. Clearly, ecological environment law enforcement should record the entire process of administrative punishment initiation, investigation and evidence collection, review, decision, delivery, execution, etc. in the form of text, audio and video, and archive and preserve them.

For example, Article 25 of the new Punishment Measures requires law enforcement personnel to listen to the statements and defenses of parties, witnesses, or other relevant personnel, and truthfully record them.

Article 28 of the new "Punishment Measures" stipulates that "when inspecting (surveying) relevant items or places, on-site inspection (surveying) records shall be made, and audio-visual records may be made according to the actual situation." "If the parties are not present, refuse to sign or stamp, law enforcement personnel shall indicate in the on-site inspection (surveying) records

 

14. Refine the scope and procedures of punishment hearings

The new "Punishment Measures" connect the requirements of the new "Administrative Penalty Law" for hearings, and add provisions on the conditions for organizing hearings and the requirements for hearing procedures in Articles 46 to 48.

Specifically, the scope of the hearing has been expanded to include in Article 46 the reduction of qualification level, confiscation of illegal property, revocation of license documents, prohibition of applying for administrative license within a certain period of time, order to suspend production and rectification, order to suspend production and business, order to close down, restrict employment, and prohibit employment, all of which can be applied for for a hearing, and it is clear that the parties involved will not bear the cost of organizing the hearing.

 

 

Administrative Penalty Measures for Ecological Environment in 2023

2010 Environmental Administrative Penalty Measures

Article 46: If the following administrative penalty decisions are to be made and the parties request a hearing, the ecological environment regulatory department shall organize a hearing: (1) a relatively large amount of fine; (2) Confiscate a large amount of illegal gains and confiscate valuable illegal property; (3) Suspend the license, lower the qualification level, revoke the license, and not apply for administrative license within a certain period of time; (4) Restricting the conduct of production and business activities, ordering suspension of production and rectification, ordering suspension of production and business, ordering closure, restricting employment, and prohibiting employment; (5) Other severe administrative penalties; (6) Other situations stipulated by laws, regulations, and rules. The parties shall not bear the cost of organizing the hearing

Before making decisions on major administrative penalties such as temporary suspension or revocation of licenses, significant fines, and confiscation, the parties involved shall be informed of their right to request a hearing.

 

 

Secondly, the procedures for the hearing have been refined, and Article 47 explicitly requires the ecological environment regulatory department to notify the parties and relevant personnel of the time and location of the hearing seven days before the hearing is held; If the party requests a hearing, it shall be submitted within five days after being notified by the ecological environment regulatory department; The hearing shall be presided over by non investigating personnel designated by the ecological environment regulatory department; If the parties concerned believe that the host has a direct interest in the case, they have the right to apply for withdrawal, etc.

 

15. Improve the calculation method of illegal gains

Article 77 of the original "Environmental Administrative Penalty Measures" defined "illegal income" as "all income obtained by the party in violation of the law minus reasonable expenses directly used by the party in business activities".

In law enforcement practice, some parties often do not cooperate with law enforcement, making it difficult for law enforcement personnel to define the parties' "reasonable expenses directly used for business activities," which brings difficulties to handling cases.

Article 28 of the new Administrative Penalty Law redefines illegal gains, clarifying that "illegal gains refer to the funds obtained from the implementation of illegal acts
The new "Punishment Measures" connect with the provisions of the new "Administrative Penalty Law" and clarify in Article 88 that "illegal income refers to the funds obtained from the implementation of illegal acts", providing a clear method for calculating illegal income.

 

16. New scope of application in the field of nuclear and radiation

On December 4, 2018, the General Office of the Chinese Communist Party issued the Guiding Opinions on Deepening the Reform of Comprehensive Administrative Law Enforcement of Ecological Environment Protection, which clearly stated that "after integration, the comprehensive law enforcement team of ecological environment protection, in the name of the ecological environment department at the same level, uniformly exercise the power of administrative punishment for pollution prevention, ecological protection, nuclear and radiation safety, as well as the power of administrative inspection, administrative enforcement and other law enforcement functions related to administrative punishment."

Nuclear and radiation safety supervision and law enforcement are important components of comprehensive administrative law enforcement for ecological environment protection. Similar to law enforcement for elements such as atmosphere, water, soil, solid waste, and the ocean, there are no special procedures in law enforcement such as case filing, investigation and evidence collection, case review, notification and hearing, legal review and collective discussion, penalty decisions, information disclosure, case closure, and filing.

Therefore, the new "Penalty Measures" have removed the provisions of Article 81 of the original "Environmental Administrative Penalty Measures" regarding exceptions to the application of nuclear safety penalties, and added the field of nuclear and radiation to its scope of application.

 
 

 

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