Ecology and Environment recently issued the newly revised Measures on Administrative Penalties for Ecological Environment, which will come into effect on July 1, 2023. The responsible person of the Law Enforcement Bureau of the Ministry of
Ecology and Environment introduced that the revision of the punishment measures strictly abides by the general norms in the field of administrative punishment, closely links with the reality of law enforcement in the field of ecological environment, highlights the characteristics of law enforcement in the field of ecological environment, strengthens the standardization and operability of law enforcement, strictly restricts administrative law enforcement actions, and safeguards the legitimate rights and interests of the parties concerned. Ensure that law enforcement has both strength and temperature.
The person in charge introduced that the name of the document was changed from the original "Measures for Administrative Penalties for the Environment" to the "Measures for Administrative Penalties for the Ecological Environment." The scope of application added the fields of nuclear and radiation, and the following changes were made in the specific content:
First, the types of penalties were revised and improved. New types of punishment have been added, such as notification of criticism, confiscation of illegal income, confiscation of illegal property, no application for administrative permission within a certain period of time, and ordering demolition within a time limit.
The second is to revise and improve the relevant provisions of investigation and evidence collection. Refine the application requirements of automatic monitoring data and highlight the important role of marking rules. Provisions on the circumstances of suspension and termination of investigation have been added to distinguish them from the circumstances of termination of investigation.
The three is to improve the relevant provisions of administrative penalty discretion. The situation of non-punishment has been improved, and the situation of lighter or mitigated punishment has been increased.
Fourth, standardize and refine the procedures of administrative penalties. New conditions and procedural requirements for organizing hearings should be added, the scope, content and opinions of legal review of major law enforcement decisions should be clarified, and the scope of collective discussion of major cases should be refined.
Fifth, supplement and increase the content of information disclosure of administrative penalties. In Chapter III "General Procedure", a separate section of "Information Disclosure" is added to specify the subject of disclosure, the content of disclosure, the circumstances of non-disclosure, privacy protection, the time limit of disclosure and the withdrawal of disclosure.
Sixth, revise the relevant time limit and the amount of fines. The time limit for filing a case, the time limit for making a decision on punishment, the amount of punishment applicable to summary procedure, and the time limit and amount of a large amount of fines have been adjusted.
The person in charge said that next step, the Ministry of Ecology and Environment will comprehensively promote the implementation of punishment measures, further improve the supporting system, enhance the ability of ecological environment administrative law enforcement, and improve the level of standardized law enforcement. At the same time, we should strengthen the educational function of administrative penalties, attach equal importance to strict law enforcement and service guidance, and create a good atmosphere to promote conscious law-abiding.
Appendix: Measures
for Administrative Penalties on Ecological Environment Measures
for Administrative Penalties on Ecological Environment The Measures for Administrative Penalties on Ecological Environment, which were deliberated and adopted at the first ministerial meeting of the Ministry of Ecology and Environment in 2023 on April 13, 2023, are hereby promulgated. It will come into effect on July 1, 2023.
Minister Huang Runqiu, May 8
,
2023, Measures for
Administrative Penalties for Ecological Environment Chapter I General Provisions
Article 1 In order to regulate the implementation of administrative penalties for ecological environment. These Measures are formulated in accordance with the Administrative Punishment Law of the People's Republic of China, the Administrative Compulsory Law of the People's Republic of China, the Environmental Protection Law of the People's Republic of China and other laws and administrative regulations to supervise and guarantee the implementation of administrative penalties by the competent departments of ecological environment according to law, safeguard public interests and social order, and protect the legitimate rights and interests of citizens, legal persons or other organizations. Article
2 Citizens, legal persons or other organizations who violate laws, regulations or rules on the protection of the ecological environment shall be given administrative penalties in accordance with the procedures prescribed in the Administrative Punishment Law of the People's Republic of China and these Measures. Article
3 In implementing administrative penalties for ecological environment and correcting illegal acts, we should adhere to the combination of education and punishment, service and management, and guide and educate citizens, legal persons or other organizations to consciously abide by the law. Article
4 The implementation of administrative penalties for ecological environment shall safeguard the legitimate rights and interests of citizens, legal persons and other organizations in accordance with the law. State secrets, business secrets or personal privacy known in the course of implementing administrative penalties shall be kept confidential according to law. The
fifth ecological environment administrative punishment follows the principle of fairness and openness. Article
6 In any of the following circumstances, a law enforcement officer shall apply for withdrawal on his own, and the party concerned shall also have the right to apply for his withdrawal:
(1) if he is a party to the case or a close relative of the party concerned;
(2) he or a close relative has a direct interest in the case;
(3) he or a close relative has other relations with the case that may affect the impartial enforcement of the law;
or (4) other circumstances of withdrawal prescribed by laws, regulations or rules. When
applying for withdrawal, the reasons shall be stated. The competent department of ecological environment shall make a timely decision on the application for withdrawal and notify the applicant. The withdrawal of the principal responsible person of the competent department of
ecological environment shall be decided by the responsible person of the department through collective discussion; the withdrawal of other responsible persons of the competent department of ecological environment shall be decided by the principal responsible person of the department; and the withdrawal of other law enforcement personnel shall be decided by the responsible person of the department. Article
7 For the same illegal act committed by a party, no administrative penalty of fine shall be imposed twice or more. If the same illegal act violates multiple legal norms and should be punished by fines, it shall be punished in accordance with the provisions of the high amount of fines.
The imposition of administrative penalty shall be governed by the provisions of the laws, regulations and rules in force at the time when the illegal act is committed. However, when making a decision on administrative penalty, laws, regulations and rules have been amended or abolished, and the new provisions are lighter or not considered illegal, the new provisions shall apply. Article
8 According to laws and administrative regulations, the types of administrative penalties for ecological environment include:
(1) warning and criticism by notice;
(2) fine, confiscation of illegal income and confiscation of illegal property;
(3) Temporarily withholding the license, lowering the qualification level, revoking the license, and not applying for an administrative license within a certain period of time;
(4) Restricting the development of production and operation activities, ordering the suspension of production and business for rectification, ordering the suspension of production and business, ordering the closure, restricting employment, and prohibiting employment;
(5) to order the dismantling within a time limit;
(6) administrative detention; and
(7) other types of administrative punishment as provided for in laws and administrative rules and regulations. Article
9 When imposing administrative penalties, the competent department of ecological environment shall order the parties concerned to correct their illegal acts or to correct them within a time limit. The decision
to order the correction of an illegal act may be issued separately or together with the decision on administrative penalty. The
order to make corrections or to make corrections within a time limit shall not apply to the provisions of the administrative penalty procedure. Article
10 Administrative penalties for ecological environment shall be imposed by law enforcement personnel qualified for administrative law enforcement. The number of law enforcement officers shall not be less than two, except as otherwise provided by law. Chapter
II Subject of Implementation and Jurisdiction
Article 11 The competent department of ecological environment shall implement administrative penalties for ecological environment within the scope of its statutory functions and powers. Organizations authorized by
laws and regulations, such as comprehensive administrative law enforcement agencies for ecological environment protection, shall implement administrative penalties for ecological environment within the scope of statutory authorization.Article
12 The competent department of ecological environment may, within its statutory authority, entrust in writing organizations that meet the requirements stipulated in Article 21 of the Administrative Punishment Law of the People's Republic of China to implement administrative penalties.
The entrusted organization shall impose administrative penalties in accordance with the Administrative Punishment Law of the People's Republic of China and the relevant provisions of these Measures. Article
13 The administrative punishment of ecological environment shall be under the jurisdiction of the competent department of ecological environment with the power of administrative punishment in the place where the illegal act occurs. Where there are other provisions in laws and administrative regulations, such provisions shall prevail. Article
14 If two or more competent departments of ecological environment have jurisdiction, they shall be under the jurisdiction of the competent department of ecological environment that first filed the case. Disputes
over jurisdiction shall be settled through consultation. If consultation fails, the dispute shall be submitted to the competent department of ecological environment at the next higher level for designation of jurisdiction. The dispute may also be directly designated by the competent department of ecological environment at the next higher level. Article
15 If the competent department of ecological environment at a lower level considers that the cases under its jurisdiction are serious, difficult or difficult to impose penalties, it may report to the competent department of ecological environment at a higher level for designation of jurisdiction. If the competent department of ecological environment at the
next higher level deems it necessary, it may, after notifying the competent department of ecological environment at the next lower level and the parties concerned, directly exercise jurisdiction over the cases under the jurisdiction of the competent department of ecological environment at the next lower level, or designate other competent departments of ecological environment with jurisdiction to exercise jurisdiction. The competent department of ecological environment
at a higher level may refer the cases under its jurisdiction to the competent department of ecological environment at a lower level for administrative punishment. Article
16 For cases not under the jurisdiction of this organ, the competent department of ecological environment shall transfer them to the competent department of ecological environment for handling. If the
transferred competent department of ecological environment has any objection to the jurisdiction, it shall report to the common competent department of ecological environment at the next higher level for designation of jurisdiction, and shall not transfer it by itself. Article
17 If the competent department of ecological environment finds that a case does not fall under its jurisdiction, it shall transfer it to the competent organ for handling in accordance with the relevant requirements and time limits.
For cases suspected of violating the law and requiring administrative detention according to law, the competent department of ecological environment shall transfer them to public security organs or maritime police organs. If
an illegal act is suspected of committing a crime, the competent department of ecological environment shall promptly transfer the case to the judicial organ. Administrative penalties shall not be substituted for criminal penalties.
For cases suspected of violating the law and should be ordered by the people's government to suspend or close down according to law, the competent department of ecological environment shall report to the people's government with the power of approval. Article
18 In addition to the administrative penalties that can be imposed on the spot according to law, the competent department of ecological environment shall be responsible for the illegal acts suspected of violating the laws, regulations and rules of ecological environment protection. It shall conduct a preliminary examination and decide whether to file a case within 15 days. Under special circumstances, it may be extended for 15 days with the approval of the person in charge of the organ. Except as otherwise provided by laws and regulations. Article
19 After examination, a case shall be placed on file if the following four conditions are met:
(1) There is preliminary evidence to prove that there is an illegal act suspected of violating the laws, regulations and rules on ecological environment protection;
(2) An administrative penalty shall or may be imposed according to law;
(3) It is under the jurisdiction of this organ;
(4) The illegal act has not exceeded the time limit for pursuing responsibility as prescribed in the Administrative Punishment Law of the People's Republic of China. Article
20 If a case that has been filed is found not to meet the conditions for filing in Article 19 of these Measures according to the new situation, the case shall be revoked. Section
2 Investigation and Evidence Collection
Article 21 The competent department of ecological environment shall designate a special person to be responsible for the registered and filed ecological environment violations, investigate comprehensively, objectively and impartially, and collect relevant evidence. Article
22 When handling administrative penalty cases, the competent department of ecological environment needs the assistance of other administrative organs in investigating and collecting evidence, it may send a letter of assistance to the relevant organs and make a request for assistance. When handling administrative penalty cases, the competent department of
ecological environment may send a letter of assistance in investigation if it needs the assistance of other competent departments of ecological environment in investigating and collecting evidence. The competent department of ecological environment that receives the letter of assistance in investigation shall assist in matters falling within the scope of the functions and powers of this organ according to law. If it is unable to assist, it shall promptly notify the competent department of ecological environment requesting assistance in the investigation. Article
23 When conducting an investigation or inspection, law enforcement officers shall, on their own initiative, show their law enforcement certificates to the parties or relevant personnel. The party concerned or the person concerned shall have the right to ask the law enforcement officer to show his law enforcement certificate. If law enforcement officers fail to produce law enforcement certificates, the parties or relevant personnel shall have the right to refuse to accept investigation or inspection.
The party concerned or relevant personnel shall truthfully answer the inquiry and assist in the investigation or inspection, and shall not refuse, obstruct or falsify when accepting the inspection. A written record of the inquiry or examination shall be made. Article
24 Law enforcement officers shall have the right to take the following measures:
(1) Entering relevant places for inspection, investigation, monitoring, audio recording, photographing and video recording;
(2) Inquiring the party concerned and relevant personnel and requiring them to explain relevant matters and provide relevant materials;
(3) Consulting and copying production records, pollutant discharge records and other relevant materials. If
necessary, the competent department of ecological environment may conduct secret investigation or other means of investigation. During investigation or inspection, technical personnel such as monitoring can be organized to provide technical support. Article
25 Law enforcement officers shall bear the following responsibilities:
(1) To conduct a comprehensive, objective, timely and impartial investigation into the basic circumstances, illegal facts, harmful consequences and illegal circumstances of the parties concerned;
(2) to collect evidence related to the case according to law, and not to obtain evidence by violence, threat, enticement, deception or other illegal means;
(3) to inquire the parties concerned and inform them of their rights according to law;
(Four) listen to the statements and arguments of the parties, witnesses or other relevant personnel, and record them truthfully. Article
26 The evidence for the administrative penalty of ecological environment shall include:
(1) documentary evidence;
(2) material evidence;
(3) audio-visual materials; and
(4) electronic data;
(5) testimony of witnesses;
(6) statements of the parties;
(7) expert opinions;
and (8) records of on-site inspection and investigation.
Evidence must be verified before it can be used as the basis for ascertaining the facts of a case. Evidence obtained
by illegal means shall not be taken as the basis for ascertaining the facts of a case. Article
27 Evidence materials obtained by the competent department of ecological environment according to law before filing a case may be used as evidence in a case.Evidence materials collected by
other organs according to their functions and powers according to law may be used as evidence in a case. Article
28 When inspecting (investigating) relevant articles or places, a record of on-site inspection (investigation) shall be made, and audio-visual records may be made according to the actual situation. The record of
on-site inspection (investigation) shall specify the starting and ending time and place of on-site inspection, the basic information of law enforcement personnel, the basic information of the parties or relevant personnel, the information of law enforcement personnel presenting law enforcement C ertificates, informing the parties or relevant personnel of their right to apply for avoidance and their obligation to cooperate with the investigation, and the information of on-site inspection. And shall be signed or sealed by the law-enforcing officer, the party concerned or other persons concerned. If
the party concerned is not present, refuses to sign or seal, the law enforcement officer shall indicate it in the record of on-site inspection (investigation). Article
29 During on-site inspection by the competent department of ecological environment, on-site sampling may be carried out in accordance with the requirements of relevant technical specifications, and the monitoring (testing) data obtained may be used as evidence to determine the facts of a case.
Law enforcement officers shall record the sampling situation in the record of on-site inspection (investigation), and may take photos and videos to record the sampling situation. After obtaining the monitoring (testing) report or appraisal opinions, the competent department of
ecological environment shall inform the parties concerned of the results of monitoring (testing) and appraisal. Article
30 Pollutant discharge units shall be responsible for the authenticity and accuracy of automatic monitoring data according to law, and shall not tamper with or forge them. Pollutant discharge units in industries that
implement automatic monitoring data marking rules shall mark the data in accordance with the provisions of the competent department of ecological environment under the State Council. The marked automatic monitoring data can be used as evidence to identify the facts of the case. If the on-site monitoring (testing) data in the
same period is inconsistent with the automatic monitoring data, and the on-site monitoring (testing) conforms to 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
31 Where the competent department of ecological environment collects and fixes illegal facts by using electronic technology monitoring equipment in accordance with laws and administrative regulations, it shall be implemented in accordance with the relevant provisions of the Administrative Penalty Law of the People's Republic of China. Article
32 Where evidence may be lost or difficult to obtain in the future, law enforcement officers may, with the approval of the person in charge of the competent department of ecological environment, take measures to register and preserve evidence related to suspected illegal acts in advance. In
case of emergency, if law enforcement officers need to take measures of registration and preservation on the spot, they may report to the person in charge of the competent department of ecological environment for approval by instant messaging, and complete the approval formalities within 24 hours after implementation. If the relevant evidence is registered and preserved
in advance, it shall be counted on the spot and a list shall be drawn up, which shall be signed or sealed by the parties and law enforcement officers. During the period of
advance registration and preservation, the parties or relevant personnel shall not damage, destroy or transfer evidence. Article
33 The following measures shall be taken within seven days with respect to the evidence that has been registered and preserved in advance:
(1) taking evidence preservation measures such as recording, duplicating, photographing, and videotaping in a timely manner according to the circumstances;
(2) delivering the evidence that needs to be appraised for appraisal;
(3) If it can be sealed up or detained according to relevant laws and regulations, it shall decide to seal up or detain;
(4) If the illegal facts are not established, or if the illegal facts are established but should not be sealed up, detained or confiscated according to law, it shall decide to lift the measures of advance registration and preservation. If no decision has been made for
more than seven days, the measures for registration and preservation shall be automatically lifted. Article
34 The competent department of ecological environment shall implement administrative compulsory measures such as seizure and seizure, which shall be clearly stipulated by laws and regulations and implemented in accordance with the Administrative Compulsory Law of the People's Republic of China and relevant provisions. Article
35 In any of the following circumstances, the investigation of the case shall be suspended with the approval of the person in charge of the competent department of ecological environment:
(1) The decision on administrative penalty shall be based on the judgment result of the relevant case or other administrative decisions. The relevant case has not yet been concluded or other administrative decisions have not yet been made;
(2) It involves the application of law and other issues, which need to be submitted to the competent authorities for interpretation or confirmation;
(3) The case is temporarily unable to be investigated due to force majeure;
(4) The case cannot be investigated for the time being because the whereabouts of the parties are unknown;
(5) Other circumstances under which the investigation should be suspended. After the reasons for the
suspension of the investigation have been eliminated, the investigation of the case shall be resumed immediately. Article
36 If one of the following circumstances makes it impossible to continue the investigation of a case, the investigation shall be terminated with the approval of the person in charge of the competent department of ecological environment:
(1) The death of a citizen suspected of violating the law;
(2) The legal person or other organization suspected of violating the law has terminated, and no legal person or other organization has assumed its rights and obligations;
(3) Other circumstances under which the investigation shall be terminated according to law. Article
37 In any of the following circumstances, the investigation shall be terminated:
(1) the illegal facts are clear, the legal procedures are complete, and the evidence is sufficient;
(2) the illegal facts are not established;
(Three) other circumstances that should be terminated according to law. Article
38 At the end of the investigation, the investigators of the case shall make an investigation report, put forward the facts and evidence of the illegal acts that have been ascertained and the preliminary handling opinions, and transfer the case for examination. The investigators of
this case shall not act as the examiners of this case. Section
3 Case Review
Article 39 The main contents of case review shall include:
(1) whether the organ has jurisdiction;
(2) whether the facts of the violation are clear;
(3) Whether the evidence is lawful and sufficient;
(4) Whether the investigation and evidence collection comply with legal procedures;
(5) Whether the time limit for administrative penalty is exceeded;
(6) Whether the applicable laws, regulations and rules are accurate, and whether the application of the discretion benchmark is appropriate. Article
40 If the illegal facts are unclear, the evidence is insufficient or the investigation procedure is illegal, the examiners shall return the investigators for supplementary investigation and evidence collection or re-investigation and evidence collection.Article
41 The exercise of the discretion of ecological environment administrative penalty shall conform to the legislative purpose, and shall comprehensively consider the following circumstances:
(1) the environmental pollution, ecological damage and social impact caused by the illegal act;
(2) the degree of subjective fault of the party concerned;
(3) The specific ways or means of the illegal act;
(4) The duration of the illegal act;
(5) The specific object of the harm caused by the illegal act;
(6) Whether the party has violated the law for the first time or again;
(7) The attitude of the party concerned to correct the illegal act and the corrective measures taken and the results thereof. If the circumstances of
similar illegal acts are the same or similar and the degree of social harm is comparable, the types and extent of administrative penalties shall be comparable. Article
42 If an illegal act is minor and corrected in time without causing harmful consequences to the ecological environment, no administrative penalty shall be imposed. Administrative penalties may not be imposed on those who violate the law for the first time and whose consequences of ecological and environmental hazards are minor and corrected in time. If
the party concerned has sufficient evidence to prove that there is no subjective fault, no administrative penalty shall be imposed. Where there are other provisions in laws and administrative regulations, such provisions shall prevail. If no administrative penalty is imposed
on the illegal acts of the parties concerned according to law, the competent department of ecological environment shall educate the parties concerned. Article
43 If a party has any of the following circumstances, he shall be given a lighter or mitigated administrative punishment:
(1) taking the initiative to eliminate or mitigate the harmful consequences of ecological and environmental violations;
(2) Those who are coerced or tricked by others to commit ecological environment violations;
(3) Those who voluntarily confess ecological environment violations that the competent department of ecological environment has not yet grasped;
(4) Those who cooperate with the competent department of ecological environment to investigate and punish ecological environment violations and perform meritorious deeds;
(Five) laws, regulations and rules stipulate that other administrative penalties should be lightened or mitigated. Section
4 Notification and Hearing
Article 44 Before making a decision on administrative penalty, the competent department of ecological environment shall inform the parties of the contents, facts, reasons, basis of the administrative penalty to be imposed and the rights of the parties to state, defend and request a hearing according to law. The party shall make a statement or defense within five days after receiving the notice; if the party fails to inform the party in accordance with the law, or refuses to listen to the party's statement or defense, no decision on administrative penalty shall be made, except that the party has explicitly waived the right to make a statement or defense. Article
45 Where a party makes a statement or defense, the competent department of ecological environment shall fully listen to the opinions of the party and put the statement and defense materials of the party into the case file. The facts, reasons and evidence put forward by the parties shall be reviewed. If the facts, reasons or evidence put forward by the parties are tenable, they shall be accepted; if not, the reasons shall be explained. A heavier punishment
shall not be imposed because of the statement or defense of the party concerned. Article
46 Where the following administrative penalty decisions are to be made and the party concerned requests a hearing, the competent department of ecological environment shall organize a hearing:
(1) a relatively large amount of fines;
(2) Confiscation of a relatively large amount of illegal income and confiscation of illegal property of a relatively large value;
(3) Temporary withholding of license, lowering of qualification level, revocation of license, and prohibition of application for administrative license within a certain period of time;
(4) Restricting the development of production and operation activities, ordering the suspension of production for rectification, ordering the suspension of production and business, ordering the closure, restricting employment and prohibiting employment;
(5) Other heavier administrative penalties;
and (6) Other circumstances stipulated by laws, regulations and rules.
The party concerned shall not bear the expenses for organizing the hearing. Article
47 a hearing shall be organized in accordance with the following procedures:
(1) If a party requests a hearing, it shall be submitted within five days after being informed by the competent department of ecological environment;
(2) The competent department of ecological environment shall, seven days before the hearing is held, notify the parties and relevant personnel of the time and place of the hearing;
(3) The hearing shall be held in public, unless it involves state secrets, business secrets or personal privacy, which shall be kept confidential according to law;
(4) The hearing shall be presided over by a non-investigator of the case designated by the competent department of ecological environment; if the party concerned considers that the presiding officer has a direct interest in the case, he shall have the right to apply for withdrawal;
(5) The party concerned may participate in the hearing in person or entrust one or two persons to act on his behalf;
(6) If the parties and their agents refuse to attend the hearing without justified reasons or withdraw from the hearing without permission, they shall be deemed to have waived the right to hear, and the competent department of ecological environment shall terminate the hearing; The investigator shall, when the hearing is
held, put forward the facts about the violations of law committed by the party, the evidence and the suggestion for administrative penalty, and the party may defend himself and make cross-examination;
and transcripts shall be made for the hearing. The written record shall be submitted to the party concerned or his agent for signature or seal after verification. If a party or his agent refuses to sign or affix his seal, the presiding hearer shall indicate it in the record. Article
48 After the hearing is over, the competent department of ecological environment shall make a decision in accordance with the transcripts of the hearing and the provisions of Article 53 of these Measures. Section
5 Legal Review and Collective Discussion
Article 49 In any of the following circumstances, before the person in charge of the competent department of ecological environment makes a decision on administrative penalty, The legal review shall be conducted by the institution responsible for the legal review of major law enforcement decisions or the legal review personnel of the competent department of ecological environment; no decision shall be made without legal review or without passing the review:
(1) involving major public interests;
(2) The case is directly related to the major rights and interests of the party concerned or the third party, and has gone through the hearing procedure;
(3) The case is difficult and complicated, and involves multiple legal relationships;
(4) Other circumstances that shall be subject to legal review as prescribed by laws and regulations. The competent departments of ecological environment at or above the municipal level
with districts may, according to the actual situation, make specific provisions on the scope of cases that should be examined by the legal system according to law. Personnel engaged in the legal examination of administrative penalty decisions for the
first time shall obtain legal professional qualifications through the national unified legal professional qualification examination. Article
50 The contents of legal review shall include:
(1) whether the subject of administrative law enforcement is legitimate and whether it exceeds the statutory authority of the law enforcement organ;
(2) whether the administrative law enforcement personnel are qualified for law enforcement;
(3) Whether the administrative enforcement procedures are lawful;
(4) Whether the facts of the case are clear and the evidence is lawful and sufficient;
(5) Whether the applicable laws, regulations and rules are accurate and whether the application of the discretion standard is appropriate;
(6) Whether the administrative law enforcement documents are complete and standardized;
(7) Whether the illegal act is suspected of committing a crime and needs to be transferred to the judicial organ.Article
51 The legal review shall be mainly conducted in writing. For cases with complex cases and large legal disputes, the competent department of ecological environment may organize symposiums and expert demonstration meetings to carry out the audit work. When conducting legal review, the competent department of
ecological environment may invite experts and legal advisers in relevant fields to submit written opinions. After
the legal review of the punishment decision to be made, the following opinions shall be put forward in writing according to different circumstances:
(1) If the main facts are clear, the evidence is sufficient, the procedure is lawful, the content is appropriate, and no obvious legal risks are found, the consent opinions shall be put forward;
(2) If the main facts are unclear, the evidence is insufficient, the procedure is improper or the basis for application is insufficient, and there are obvious legal risks, but they can be improved or perfected, the existing problems shall be pointed out and suggestions for improvement or perfection shall be put forward;
(3) If there are obvious legal risks and it is difficult to improve or perfect them, the existing problems shall be pointed out and the audit opinions of disagreement shall be put forward. Article
52 Where administrative penalties are imposed on complex or major illegal acts, the person in charge of the competent department of ecological environment who makes the decision on penalties shall discuss and decide collectively. One of
the following circumstances is a case in which the circumstances are complicated or a major illegal act is subject to administrative punishment:
(1) the circumstances are difficult and complicated and involve more than one legal relationship;
(2) the amount of the fine, the confiscation of illegal income, or the confiscation of illegal property is more than 500,000 yuan;
(3) intending to revoke the license certificate and not to apply for an administrative license within a certain period of time;
(4) intending to order the suspension of production for rectification, the suspension of production or business, the closure, the restriction of employment or the prohibition of employment;
(5) Other cases that the person in charge of the competent department of ecological environment considers should be submitted for collective discussion.
Collective discussions shall be recorded. Where there are other provisions in
local regulations and local government regulations, such provisions shall prevail. Section
6 Decisions
Article 53 After examination, the person in charge of the competent department of ecological environment shall make the following decisions according to different circumstances:
(1) If there is an illegal act that should be subject to administrative punishment, according to the seriousness of the case and the specific circumstances, To make a decision on administrative penalty;
(2) to impose no administrative penalty where an illegal act is minor and which may be exempted from administrative penalty according to law;
(3) to impose no administrative penalty where the facts about an illegal act are not established; and
(4) to transfer an illegal act suspected of committing a crime to a judicial organ. Article
54 Decisions on administrative penalties such as warnings, orders to stop production and business, temporary withholding or revocation of licenses, which have been made by the competent department of ecological environment before transferring suspected cases of ecological environment crimes to judici al organs, shall not be suspended. The period of transfer of
suspected criminal cases shall not be included in the period of administrative punishment. Article
55 Where a decision is made to impose an administrative penalty, a written decision on the administrative penalty shall be made.
For two or more environmental violations committed by the same party, a written decision on administrative penalty may be made separately or included in the same written decision on administrative penalty. If it is decided not to impose administrative penalty in
accordance with the provisions of Item 2 of Article 53 of these Measures, a written decision not to impose administrative penalty shall be made. Article
56 The written decision of administrative penalty shall contain the following contents:
(1) The basic information of the party, including the name of the party, the number of the resident identity card or the unified social credit code, the address or domicile, the name of the legal representative (person in charge), etc.;
(2) The facts and evidence of the violation of laws, regulations or rules;
(3) The acceptance of the statements and defenses of the parties concerned and the reasons for their acceptance; if the conditions for hearing are met, the information on the hearing shall also be stated;
(4) The type and basis of administrative penalty, as well as the reason and basis for the application of the discretion standard of administrative penalty;
(5) The performance method and time limit of administrative penalty;
(6) The channel and time limit for applying for administrative reconsideration and instituting administrative litigation against the decision of administrative penalty;
(7) The name of the competent department of ecological environment that makes the decision on administrative penalty and the date of making the decision shall be stamped. Article
57 The competent department of ecological environment shall make a decision within 90 days from the date of filing the case. If a decision cannot be made within the prescribed time limit due to the complexity of the case or other reasons, it may be extended for 30 days with the approval of the person in charge of the competent department of ecological environment. If the case is particularly complicated or there are other special circumstances, and the decision cannot be made after the extension, the person in charge of the competent department of ecological environment 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. In the process of handling
a case, the time of suspension, hearing, announcement, monitoring (testing), evaluation, appraisal, confirmation and service shall not be included in the time limit for handling the case referred to in the preceding paragraph. Article
58 The form of decision for administrative penalty shall be given to the party on the spot after announcement of the decision; if the party is not present, the form of decision for administrative penalty shall be served on the party within seven days. The competent department of
ecological environment may, if necessary, copy the decision on administrative penalty to the units and individuals concerned with the case. Article
59 The competent department of ecological environment may serve law enforcement documents by means of direct service, lien service, entrusted service, mail service, electronic service, transfer service and public announcement service. The service receipt shall be used and filed for the service of
administrative penalty documents. Article
60 If the parties agree and sign a confirmation letter, the competent department of ecological environment may serve the law enforcement documents by fax, e-mail, mobile communication and other electronic means that can confirm their receipt, and record them by taking photos, screenshots, audio and video recordings. The date of arrival of fax, e-mail, mobile communication, etc. At the party's specific system is the date of service. Section
7 Information Disclosure
Article 61 The competent department of ecological environment shall publicize its decisions on administrative penalties for ecological environment according to law. Article
62 The competent department of ecological environment shall disclose the following information of the decision on administrative penalty for ecological environment according to law:
(1) The document number of the decision on administrative penalty;
(2) The name of the citizen punished, the name and unified social credit code of the legal person or other organization punished, and the name of the legal representative (person in charge);
(3) The major illegal facts;
(4) The result and basis of the administrative penalty;
(5) The name of the competent department of ecological environment that makes the decision on administrative penalty and the date on which the decision is made. Article
63 Information concerning state secrets or information prohibited from disclosure by laws and administrative regulations, as well as information on administrative penalty decisions that may endanger national security, public security, economic security and social stability after disclosure, shall not be disclosed.Article
64 When a decision on administrative penalty is made public, the following information shall be concealed:
(1) Personal privacy information such as a citizen's portrait, resident identity card number, home address, means of communication, date of birth, bank account number, health status and property status;
(2) The name of a citizen, the name and unified social credit code of a legal person or other organization, and the name of the legal representative (person in charge) other than those specified in Item (2) of Article 62 of these Measures;
(3) The bank account number of a legal person or other organization;
(4) The name of the minor and other information that may identify him or her;
(5) The production formula, technological process, purchase and sale price, customer name and other information involving trade secrets of the party concerned;
(6) Other information that shall be concealed according to the provisions of laws and regulations. Article
65 The decision on administrative penalty for ecological environment shall be made public within seven days from the date of making it. Where there are other provisions in laws and administrative regulations, such provisions shall prevail. Article
66 If a public administrative penalty decision is changed, revoked, confirmed illegal or invalid according to law, the competent department of ecological environment shall withdraw the information of the administrative penalty decision within three days and publicly explain the reasons. Chapter
IV Summary Procedure
Article 67 If the facts about a violation of law are well-attested and there are legal basis and if an administrative penalty of not more than 200 yuan is imposed on a citizen or a fine of not more than 3,000 yuan or a warning is imposed on a legal person or other organization, a decision on administrative penalty may be made on the spot by applying summary procedure. Where there are other provisions in the law, such provisions shall prevail. Article
68 When a decision on administrative penalty is made on the spot, the following summary procedures shall be observed:
(1) The law-enforcing officers shall show the parties their valid certificates for law enforcement;
(2) To investigate the illegal facts of the parties on the spot and collect evidence according to law;
(3) to explain to the party the facts of the violation of law, the type and basis of the administrative penalty to be imposed, the amount, time and place of the fine, and to inform the party of the right to state and defend himself;
(4) to hear the party's statement and defense. If the facts, reasons or evidence put forward by the party concerned are tenable, they shall be accepted;
(5) a written decision of administrative penalty in a predetermined format, numbered and stamped with the seal of the competent department of ecological environment shall be signed or sealed by the law enforcement officer, and the written decision of administrative penalty shall be delivered to the party concerned on the spot; If the party refuses to sign for it, it shall be noted in the written decision of administrative penalty;
(6) Inform the party that if he refuses to accept the decision of administrative penalty made on the spot, he may apply for administrative reconsideration or Institute administrative litigation in accordance with the law, and inform the party of the channels and time limits for applying for administrative reconsideration or instituting administrative litigation.
The above process shall be recorded. The decision on administrative penalty made by
law enforcement officers on the spot shall be submitted to the competent department of ecological environment for the record within three days from the date of the decision. Chapter
V Execution
Article 69 The parties shall implement the decision on administrative penalty within the time limit specified in the decision on administrative penalty. If an
application for administrative reconsideration or an administrative lawsuit is brought, the execution of the decision on administrative penalty shall not be suspended, except as otherwise provided by law. Article
70 If a party fails to pay a fine within the time limit, the competent department of ecological environment that has made the decision on administrative penalty may impose an additional fine of 3% of the amount of the fine per day, and the amount of the additional fine shall not exceed the amount of the fine. Article
71 If a party fails to apply for administrative reconsideration or Institute administrative litigation within the legal time limit and fails to implement the decision on administrative penalty, the competent department of ecological environment that has made the decision on penalty may apply to the people's court for compulsory execution within three months from the expiration of the time limit. Article
72 Before making a decision on compulsory enforcement of an additional fine or applying to the people's court for compulsory enforcement, the competent department of ecological environment shall urge the parties to fulfill their obligations according to law. Article
73 After a party has committed an illegal act and has been punished by a fine, confiscation of illegal income or confiscation of illegal property, etc., the legal person or other organization that takes over the rights and obligations of the party concerned shall be the person subjected to execution in the event of division, merger or other reorganization of assets of the enterprise. Article
74 If a party has financial difficulties and needs to postpone or pay the fine in installments, the party concerned shall submit a written application for postponement or payment in installments to the competent department of ecological environment that has made the decision on administrative penalty before the expiration of the time limit for payment specified in the decision on administrative penalty. If the party concerned is
approved to postpone or pay the fine in installments, a notice of consent to postpone (installment) payment of the fine shall be made and served on the party concerned and the institution collecting the fine. If the competent department of
ecological environment approves the extension or payment of fines in installments, the time limit for applying to the people's court for compulsory execution shall be calculated from the date of the end of the period of suspension or payment of fines in installments. Article
75 Illegal property confiscated according to law shall be disposed of in accordance with the provisions of the State. The articles to be
destroyed shall be disposed of in accordance with the relevant provisions of the State; if there are no such provisions, the destruction shall be supervised by two or more law enforcement officers with the approval of the person in charge of the competent department of ecological environment, and a record of the destruction shall be made. A list shall be made for the
disposal of articles. Article
76 Fines, confiscated illegal gains or money obtained from the auction of the confiscated illegal property or things of value shall be turned over to the State Treasury in full. No unit or individual may, in any form, withhold, or share them privately, or do so in disguised form.
Fines, confiscated illegal gains or confiscated money from the auction of illegal property shall not be directly or in disguised form linked to the assessment and evaluation of the competent department of ecological environment and its staff who have made the decision on administrative penalties. Chapter
VI Closing and Filing
Article 77 In any of the following circumstances, law enforcement officers shall make a closing examination and approval form. The case shall be closed with the approval of the person in charge of the competent department of ecological environment:
(1) The party concerned has completed the execution of the order for correction and the decision on administrative penalty;
(2) The competent department of ecological environment has applied to the people's court for compulsory execution of the decision on administrative penalty according to law, and the people's court has accepted the application according to law;
(3) No administrative penalty is imposed;
(4) The investigation of the case is terminated in accordance with Article 36 of these Measures;
(5) The transfer of the case is completed in accordance with Article 17 of these Measures, and it is not necessary for the competent department of ecological environment to make a decision on administrative penalty according to law;
(6) The decision of administrative penalty is revoked according to law;
(7) Other circumstances in which the competent department of ecological environment considers that the case can be closed. Article
78 After a case of administrative penalty is concluded, the materials of the case shall be filed according to the following requirements:
(1) Each case shall have one volume, and the volume may be divided into the main volume and the additional volume;
(2) The documents shall be complete and the formalities shall be complete;
(3) Writing documents with signature pens, pens or printing;
(4) File binding shall be standardized and orderly, and meet the requirements of documents.Article
79 The main volume shall be bound in the following order:
(1) the written decision of administrative penalty and the receipt of service;
(2) the materials for examination and approval of filing a case;
(3) the investigation and evidence collection and evidentiary materials;
(4) Legal documents such as the prior notice of administrative penalty, the notice of hearing, the notice of hearing, and the receipt of service;
(5) transcripts of the hearing;
(6) materials on the disposal of property;
(7) materials on the execution; and
(8) materials on the conclusion of a case;
(Nine) other relevant materials.
The secondary volume shall be bound in the following order:
(1) source materials of complaints, appeals, reports and other cases;
(2) materials involving the business secrets of the parties;
(3) hearing reports;
(4) examination opinions;
(5) Legal review materials and collective discussion records; and
(6) other relevant materials. Article 80 After the
files are filed, no unit or individual may modify, add or extract the file materials. The keeping and consulting of files shall be carried out in accordance with the relevant provisions on file management. Article
81 The competent department of ecological environment shall establish a statistical system for administrative penalty cases and report the administrative penalties to the competent department of ecological environment at a higher level in accordance with the relevant provisions of the Ministry of Ecological Environment on environmental statistics. Chapter
VII Supervision
Article 82 The competent department of ecological environment at a higher level shall be responsible for supervising and inspecting the administrative punishment work of the competent department of ecological environment at a lower level. Article
83 The competent department of ecological environment shall establish an administrative penalty filing system. The punishment cases supervised by the competent department of ecological environment at a
lower level shall be filed with the competent department of ecological environment at a higher level within 20 days after the conclusion of the case.
The eighty-fourth competent departments of ecological environment shall implement administrative penalties under social supervision. Citizens, legal persons or other organizations shall have the right to appeal or report the acts of administrative penalties imposed by the competent department of ecological environment; the competent department of ecological environment shall carefully examine them, and shall take the initiative to correct any errors found. Article
85 If the competent department of ecological environment finds that the decision on administrative penalty has errors in writing, clerical errors or calculation errors, as well as the absence of some contents of the decision on administrative penalty, but does not harm the legitimate rights and interests of citizens, legal persons or other organizations, it shall make corrections or corrections.
Corrections or corrections shall be made in a timely manner in the form of written decisions. Article
86 If the competent department of ecological environment finds that the administrative penalty decision of the competent department of ecological environment at a lower level is illegal or obviously unfair by accepting complaints and reports, or by filing and examining, it shall urge it to correct it. If administrative penalties should be imposed
according to law, but the competent department of ecological environment concerned does not impose administrative penalties, the competent department of ecological environment at a higher level with the power of punishment may directly make a decision on administrative penalties. Article
87 The competent department of ecological environment may evaluate and assess administrative penalties through case review or other means, strengthen supervision and inspection of administrative penalties, and standardize and guarantee the implementation of administrative penalties. Units and individuals who have made remarkable achievements in the work of administrative punishment may be commended and rewarded in accordance with the relevant provisions of the state or local governments. "Chap
VIII Supplementary Provisions
" article 88 that illegal gains of the party concerned shall be confiscated, except for those that should be returned or compensate according to law. Illegal income refers to the money obtained from the implementation of illegal acts. Where
laws and administrative regulations provide otherwise for the calculation of illegal income, such provisions shall prevail. Article
89 The "relatively large amount" and "relatively large value" mentioned in Article 46 of these Measures refer to RMB (or equivalent value of goods) of more than 5000 yuan for citizens and RMB (or equivalent value of goods) of more than 200000 yuan for legal persons or other organizations. Where there are other provisions on "larger amount" and "larger value" in
local laws and regulations and local government regulations, such provisions shall prevail. Article
90 The provisions of "three days", "five days" and "seven days" in these Measures refer to working days, excluding statutory holidays. The date of commencement of the
period shall not be counted. If the expiration date of a time period falls on a holiday, the expiration date shall be the day immediately following the holiday. The time period does not include the time in transit. If the administrative penalty document is mailed before the expiration of the time period, it shall be deemed to be within the period of validity. Article
91 Other matters not stipulated in these Measures shall be governed by relevant laws, regulations and rules such as the Administrative Punishment Law of the People's Republic of China and the Administrative Compulsory Law of the People's Republic of China. Article
92 These Measures shall come into force on July 1, 2023. The Measures for Environmental Administrative Penalties promulgated by the former Ministry of Environmental Protection (Decree No.8 of the Ministry of Environmental Protection) shall be abolished at the same time.
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