Research On Environmental Administrative Punishment Discretion Standard

Environmental administrative punishment discretion standard(EAPDS),which is formulated by administrative organs and restrain themselves,is one of administrative self-control methods.It discloses reasons of punishment and the process of environmental administrative punishment discretion.So that it has functions of restricting,limiting and constructing discretion.Administrative jurisprudential circle has already discussed some fundamental theories of administrative punishment discretion standard.But this is far from enough for EAPDS.In the face of special needs of environmental governance,general theories of administrative law have adaption problems.Through the review of practical problems,we can figure that there is an internal theoretical problem,how to put forward the theory of environmental administrative punishment discretion standard complying with the legislative intent,principles and values of environmental law and according to the particularity of environmental problems.Only introducing the idea and request of environmental law into general theory framework of administrative law can we take every aspects of environmental problems into account and develop the power-control function of the discretion standard institution.This theoretical research route is the improvement and supplement of theory of administrative punishment discretion standard of administrative law by theory of environmental law.And it presents the relationship between environmental law and traditional branch law which is realized by the environmental law methodology with coordination and integration as core.The research establishes rational foundation of the formulation and implementation of EAPDS,when we give the theory of administrative punishment discretion standard further discussion through the view of environmental governance.The aspect of noumenon explanation.From the review of EAPDS practice in China,we can figure that it is the narrow sense of EAPDS that we adapted,which means the administrative punishment discretion standard that regulates the discretion of environmental authorities.EAPDS make the rules with plot refinement and punishment formation.By this,the discretion standard fulfills its functions of limiting,constructing and restricting discretion.Administrative discretion is a rightful power that granted by legislation.It is important for the pursuit of justice in individual cases.The discretion standard could not deprive the power of discretion but to restrain it into a reasonable space by rules.Thus the system position of administrative punishment discretion standard is a balance between regulation and discretion.To realize the ideal balance of regulation and discretion,EAPDS must confirm the reasonable space of discretion based on the characteristics of environmental governance.And on the foundation of the confirmation,the standard adjusts the refinement degree of rules,kinds of factors,the degree of implementation and so forth.The aspect of generation.The generation process of content of rules in EAPDS in nature is that the authorities firstly perform pre-discretion to the environmental violations of law and then transform the pre-discretion into form of rules.Public participation is significant in this process.Public participation is a fundamental principle of environmental law.It reflects the purpose and value of environmental legislation.And it has function in ensuring the environmental democracy and justice.But in administrative punishment discretion standard,people doubt public participation in many aspects,such as inconsistent with the self-control logic,lack of rationality of technology and bad operability.But these doubts cannot exclude the application of public participation in EAPDS.It is allowed to apply public participation in a limit.In the light of particularity of environmental governance,EAPDS may apply a limited pattern of public participation.Public and producer could participate through different ways in the process of EAPDS enacting and amendment.They could bring advises and opinions to the authorities about the scope of power control,discretion factors and punishment formation.The aspect of content construction.From the internal perspective of content construction,the rationality of content is equal to that of pre-discretion.While judging the rationality of content of pre-discretion,we shall adapt the principle of administrative balance,which is related to the adjustment method of environmental law,as standard.Environmental law gives new connotation to the principle of administrative balance that it includes the consideration of environmental and social economic interests.From the external perspective of content construction,EAPDS is local practice,as a result it will reflect the need in local law enforcement and be different in content between each other.But the content differentiation is not an absolute option,it has limit.This is because of the uniformity of environmental legislation and policy and the intercommunity of environmental problems.The content differentiation of EAPDS is aimed to limiting and constructing discretion.There are four factors that content differentiation of EAPDS may take into consideration,environmental legislation,environmental law enforcement,nature environment and social economic condition.In the fulfillment of content differentiation of EAPDS,the subject is the local authorities depending on cases,the approach is transforming the considerations into rule through plot refinement and the purpose is to achieve the proper balance between the factors in content of EAPDS.The aspect of technical structure.The technical structure of EAPDS contains two parts,plot refinement and punishment formation.Environmental law brings special requirements to the plot refinement which are the reliance to the judgement of objective environmental fact,restraint by social technology limit and integration of environmental and social economic factors.These requirements may reflect in the affirmation of discretion factors and their weight.The punishment formation is technical.There are several factors influence the formation process,legislation purpose,practical needs and extent of plot refinement.There are two kinds of expression modes of the technic,which are standard list mode and construction factors mode.The aspect of ruled application.The application rule of EAPDS has two parts,one is the application rule in normal cases,the other is the departure rule in special cases.These two kinds of rules both leave discretion space to executor to pursuit the essence justice in individual cases,but also produces danger of abuse of discretion power.The environmental law principles could make up the defect above.On one hand,the environmental law principles clarify the environmental enforcement standard of application rules.The principles establish the standard of special circumstances,rightful reason of departure and self-control of authority.On the other hand,the principles bring requirements of priority protection,mainly prevention and polluters pay into application rule of EAPDS.After all,these issues are coordination and integration processes of idea and value of environmental law and general theoretical framework of administrative law.As a result,the theoretical pattern of EAPDS which reflects the characteristics of environmental governance is established.