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Regulating Discretionary Power of Punishment and Promoting Law-based Environmental Administration –An Interview with Yang Chaofei, DG of Department of Policies, Laws and Regulations, MEP
Correct use of discretionary power of punishment is the basic requirement of strict, science-based law enforcement and promoting administration by law. As environmental law enforcement continues to step up, discretional power of environmental administrative punishment has become a hot topic. Recently, MEP issued Opinions on Regulating Discretionary Power of Environmental Administrative Punishment (hereinafter referred to as the Opinion), which set systematic requirements on major issues related to discretional power of environmental administrative punishment.
Reporter of the Press interviewed Yang Chaofei, Director General of Department of Policies, Laws and Regulations to learn about the background and content of the Opinion. 
R: What are the background and objectives of the Opinion? 
Two reasons have sparked the formulation of the Opinion. First, local environmental departments have taken the initiative to regulate the exercise of discretionary power and correctly employ environmental laws and regulations. This helps to improve environmental supervision and plays an important role in combating malicious environmental violations, preventing and controlling environmental pollution and safeguarding people's health. Some local departments even set out rules to regulate the use of discretional power of administrative punishment. Second, improper use of the discretional power still exists in some areas, leading to abuse of power and corruption in law enforcement, which have brought about negative impact on the society.
The purpose of this Opinion is to further regulate the use of discretional power of administrative punishment, improve the capacity of environmental system for administration by law and effectively prevent corruption of law enforcement.
R: Can you brief us the process of developing the Opinion?
MEP leadership pay high attention to the work and require us to deepen it from the perspective of practicing Scientific Outlook on Development, promoting law-based administration and fighting against corruption of law enforcement. Ministerial leaders led a team to make investigation on the spot and arrange for the draft work. The Department of Policies, Laws and Regulations held several seminars together with Supervision Office and Bureau of Environmental Supervision to listen to related experiences of local departments including Hunan Province, Quanzhou of Fujian and Pinggu County of Beijing for the preparation of the Opinion. In the process of drafting, we also sought comments from supervision and environmental supervision departments in a bid to improve its feasibility. After several amendments, the Opinion was adopted by the Ministerial Executive Meeting on Feb. 20, 2009.
R: What are the basic principles to be observed while environmental departments are making decisions on whether to impose punishment, the type of punishment and the yardstick for punishment? 
The Opinion establishes six principles:
First, wrongdoings should agree with punishment so that the nature of the breach and its harmful effect on the society are answered for.
Second, the procedures should be strictly followed such as investigation, evidence collection and notification so as to fully guarantee the rights of the party including the right to state one's case, right of defense, right of relief and the right of hearing according to law.
Third, emphasis should be laid on rectification by making full use of such instruments as rectification within a set time period, pollution control within in a certain period of time, limited production and discharges and suspension of production and business operation. Ex post supervision will be strengthened to ensure the rectification meets the requirement.
Fourth, a set of elements will be taken into account including how big the mistake is, its harmful effect, the party's attitude toward correction and whether it is a first offence or repeat of an offence.
Fifth, judgment and punishment should be consistent. Cases of similar nature in the same area should be subject to punishment of the same category and scale.
Sixth, we should combine punishment and education and pay more attention to raising people's awareness and correcting their mistakes so that companies and citizens will abide by environmental laws and regulations voluntarily.
R: How will environmental departments gauge the practice of discretional power of administrative punishment? 
The Opinion provides a scale for punishment according to related laws and regulations and the reality of environmental law enforcement. The scale ranges from heavier punishment, lighter punishment, dual punishment on both the company and individual, punishment by day, to punishment observing the most serious crime and combined punishment for several offenses.
For instance, heavier punishment shall be imposed on malicious violations like secretly discharging pollutants through privately installed pipes and dilution of pollutants. Dual punishment on both companies and supervisors and offenders shall be imposed to companies and institutions leading to water pollution. Punishment by day shall be imposed on continued environmental violations and the fine will be calculated on an accumulative basis.
Of course, as the situation varies across the country, there will be some different in the specific gauge for penalty. We suggest we identify reference penalties for discretionary power based on some typical cases, so that the type and breadth of administrative punishment agree with cases of similar nature in the same area. The state will formulate advisory guidelines for the sum of fine as appropriate. 
R: Correct application of laws and regulations is the precondition for discretionary power. How do the Opinions define application of law?
The Opinions identify a basic principle that gives priority to higher law, special law and new law. It also specifies the rules to be applied when contradiction emerges among environmental laws and regulations.
The rule to address the contradiction between regulations of environmental departments and local laws or regulations of local governments is as follows: if the law or administrative regulation gives a mandate to regulations of environmental departments, or local laws or regulations of local governments, the mandated regulations shall prevail; if there is not a mandate, the regulations of environmental departments shall prevail. 
When there is contradiction between the regulation of environmental department and regulation of other departments, if the two regulations do not agree, the regulation set by the functional department shall prevail; regulation co-developed by two or more than two departments shall precede that developed by a sole department. When application of law is not assured, related department shall turn the case to the State Council for judgment by procedures.
R: Single administrative punishment is hard to change the ongoing fact of low cost for violation and high cost for compliance. What are the provisions in the Opinion with regard to comprehensive use of other punitive measures?
The Opinions supports combination of environmental administrative punishment with other mechanisms like economic policy restraint, social supervision, inter-department coordination, administrative penalties for public security, transfer of criminal cases and civil action, in order to give full play to the warning role of environmental law enforcement. This is a crucial experience from years of practice across the country. 
First, environmental administrative punishment should be combined with economic policy restraint. Environmental departments should notify People's Bank of China, regulatory authorities of banking and securities sectors and commercial banks of companies leading to serious pollution, so that these companies will be subject to restriction of borrowing or denial of borrowing. Securities regulatory commission will not approve their application for listing or refinancing. 
Second, social supervision will also play a role. We will make public penalized companies and companies with serious violations will be reported to the Party's Committee, the People's Congress, government and Committee of the Chinese People's Political Consultative Conference, social organizations like the trade union, the communist youth league, women's federation and relevant industrial associations. Suggestions will be made to withdraw their honors and titles.
Third, we will work with other departments. Companies failed to go through environmental impact assessment procedures, pass the check of three simultaneities or engage in production and operation against law will be transferred to industrial and commercial department according to Measures for Investigating, Punishing and Banning Unlicensed Business Operations; construction projects in breach of urban planning and land management regulations will be transferred to relevant departments and ordered to be pulled down within a set time limit and restore the land. 
Fourth, administrative penalties for public security will also help environmental law enforcement. Any actions impeding supervision and inspection, discharging pollution against law or dumping hazardous waste and are suspected of infringing social security regulations will be transferred to the police office and dealt with according to Law on Public Security Administration.
Fifth, environmental administrative discretion will also involve handling of criminal cases. If environmental violators are suspected of crimes on major environmental pollution accidents, they will be sent to the police in accordance with the Criminal Procedure Law, Regulation on Transfer of Suspected Criminal Cases by Law Enforcement Administrations and Regulations on Transfer of Suspected Environmental Cases by Environmental Protection Authority.
Sixth, civil action is also part of environmental law enforcement. Environmental monitoring centers should accept claims of the injured from environmental pollution for monitoring data. Where there is an action, environmental department may support them according to law. Environmental departments may also step in where there is a request for mediation.

(This English version is for your reference only.In case any discrepancy exists between the Chinese and English context, the Chinese version shall prevail.)

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