摘要
我国《环境保护法》规定的按日连续处罚制度设计尚不够完善,除了法律性质界定不明外,还存在可适用的违法行为类别较少,计罚考量因素不多等问题,其导致的结果是该处罚制度的可操作性不强,执法实践中适用率很低。作为按日连续处罚制度发源地的美国,其对按日连续处罚的法律性质定位清晰,将其适用于各种违法行为,并从多方面设置计罚标准,执法机关还通过发布民事罚款政策保证处罚评定过程的一致性,使其具有很强的可操作性。我国《环境保护法》第59条有关按日计罚的规定及该制度的实施办法均需进一步完善,要明确其行政罚性质和地方法规对其设置的权限,扩大其适用范围并增加计罚考量因素,以实现各方利益衡平,并将执法人员的自由裁量权控制在一定的范围之内。
The system of consecutive daily penalty in the Environment Protection Law of China is not designed perfectly. There are problems such as few applicable categories of illegal activities and limited factors taken into account for penalty in addition to unclear legal nature, which lead to a result that the penalty system is not strong in maneuverability and the application rate in the practice of law enforcement is low. The USA, as the origin of the consecutive daily penalty, gives clear description to the legal nature of such system and applies it to various legal violations, establishes penalty standards from many aspects. Moreover, the EPA also guarantees the consistency of penalty determination process through promulgating policies on civil penalty to enhance its maneuverability. The provision on the daily penalty in the Article 59 of the Environment Protection Law of China and its implementation measures need further improvement including clarifying its nature as a kind of administrative penalty, setting forth the power and limitation of local regulations in establishing such system, expanding the scope of its application, adding factors considered for a penalty so as to realize the balanced interests among concerned parties and limit law enforcement officers＇ discretion within a certain scope.
出处
《政治与法律》
CSSCI
北大核心
2018年第8期150-160,共11页
Political Science and Law
关键词
环境保护法
按日计罚
利益衡平
地方法规设定权
自由裁量权
Environmental Protection Law
Daily Penalty
Balancing Interests
Power of Local Regulations in Establishment
Discretion
