论环境行政处罚裁量的规制——以生态环境治理体系现代化为框架

面对日益激增的环境风险,立法规制局限、司法规制消极、行政规制乏力,难以规制环境行政处罚裁量权的行使,更增加环境行政处罚决定的履行难度。现代化生态环境治理体系构筑的政府、企业、社会公众三元主体结构,为环境行政处罚裁量规制提供了新的框架。在此三元结构框架下,以传统行政理论为基础,可以形成行政自制、协商规制、社会规制,共同作用于在环境行政全过程,规范并制约环境行政处罚裁量的行使。

On the Regulation of the Discretion of Environmental Administrative Punishment: Based on the Framework of the Modernized Environment Governance System

With the increasing environmental risks, the limitations of legislative regulation, negative judicial regulation and weak administrative regulation make it difficult to regulate the exercise of the discretion of environmental administrative punishment, which also increases the difficulty of the implementation of environmental administrative penalty decisions. The government, enterprises and the public three-dimensional main body structure constructed by the modern environmental governance system provides a new framework for the discretionary regulation of environmental administrative punishment. Based on the traditional theories of administrative Law, three regulation mechanisms can be formed,which include administrative self-control, negotiation regulation, and the social regulation. These three regulatory mechanisms working together in the whole process of environmental administration would regulate and restrict the exerting of discretion of environmental administrative punishment.