Research On The Effects Of Administrative Penalty Discretion Standard In Environment Protection

As a newly-emerging tool which aims to control administrative discretionarypower, especially administrative discretionary power that exists in administrativepenalty, discretion standard becomes a widely concern between both theorists andpractice workers in administrative law field. In2009, the Environment ProtectionDepartment executive meeting examined and adopted <Certain Opinions onStandardizing Environmental Administrative Penalty Discretion>. As the firstdiscretion standard issued by the State Council and departments concerned, theOpinions further standardized environmental administrative penalty discretion.This paper makes some recommendations to improve the administrative discretionin administrative penalty in environmental protection, based on the analysis ofadministrative discretion and discretion standard, and on taking practice of Hunan anexample. The preface briefly states the background and significance of the selectedsubjects of this paper, introduces the research status at home and aboard, present’sresearch methodology and research tools, and at last summarizes this paper’sinnovations. In a word, this paper is divided into main three parts as below:The first part is to describe the basic theory of administrative discretionary,involving the concept, nature and function. Based on the detailed explanation of thebasic concept of Administrative Discretion Standard (ADS), this paper proposes that thecharacteristic of ADS is a kind of illustrative administration rule. The design of ADSsystem aims to regulate the use of administrative discretional power.The second part of this paper focus on the legal force. First, it points that the directobject governed by ADS is its rule-maker, inferior administrative organ and publicservant. Next, in case both the inferior administrative law, the conflicts of priorityamong the discretion standard of different tiers comes to the front. Again, ADS has the external effects by regulating the rights and duties of administrative counterpart throughdetailed administrative actions. As a result, it is binding to administrative counterpart.At last, this paper analyses ADS’s effect upon court.The third part then makes three proposals to perfect the discretion standard ofadministrative penalty in environmental protection: the system construction of givingreason in administrative penalty; public penalty discretion benchmark; rational divisionof labor among subjects.