Typical Cases of Administrative Reconsideration (3)|A biotechnology company is dissatisfied with the administrative penalty of the District Ecology and Environment Bureau and applies for administrative reconsideration

A biotechnology company was dissatisfied with the District Ecology and Environment Bureau

Administrative reconsideration of administrative punishment application

　　【Keywords】

　　Administrative Reconsideration Hearing, Ecological Environment, Administrative Punishment, Settlement

　　[Basic facts of the case]

　　On July 13, 2023, the respondent, the Ecology and Environment Bureau of a district in Shanghai, found during an on-site inspection that the applicant, a biotechnology company, had committed illegal acts such as failing to store hazardous waste as required and putting into use the supporting environmental protection facilities of the laboratory project without acceptance. On July 27, 2023, the respondent inspected again and found that the applicant had stored the hazardous waste in the explosion-proof cabinet and pasted the hazardous waste label, and signed the "Environmental Impact Assessment Technical Service Contract" and the "Completion Environmental Protection Acceptance Technical Service Contract" with the third party, but had not yet completed the completion and acceptance of supporting environmental protection facilities. On October 27, 2023, the respondent made an administrative penalty decision of fining the applicant more than 440,000 yuan. The applicant is not satisfied, believing that his illegal act is minor and has been corrected in a timely manner, and has not caused harmful consequences, and shall apply the relevant provisions of the "Measures for Administrative Punishment of the Ecological Environment" issued by the Ministry of Ecology and Environment not to impose administrative penalties, and apply to the District People's Government for administrative reconsideration, requesting that the above-mentioned administrative penalty decision be revoked.

　　[Reconsideration Handling]

　　The administrative reconsideration agency found that this case involved multiple experimental projects of the applicant, and there were multiple illegal acts, and the case was complicated, so it decided to organize a hearing between the two parties. At the hearing, the applicant and the respondent debated the facts, law enforcement procedures, and discretionary standards, and the respondent explained to the applicant that although it had completed some rectification measures, it had not yet completed the completion and acceptance of supporting environmental protection facilities, and there was still a risk of endangering the ecological environment, which did not meet the requirements of the "Measures for Administrative Punishment of the Ecological Environment" and did not impose administrative penalties on "minor violations and timely corrections". The applicant expressed his understanding, but still believed that the hazardous waste generated by his experimental project had little impact on the ecological environment, and the failure to complete the completion and acceptance of supporting environmental protection facilities was caused by the third-party scheduling problem, and the punishment involved in the case was obviously excessive. Under the coordination of the administrative reconsideration agency, the respondent agreed to make a new decision on the minor violation within the scope of the statutory discretionary criteria, and the applicant promised to complete the completion and acceptance of the supporting environmental protection facilities within the specified time, and finally the two parties reached a settlement and signed a settlement agreement, and the applicant withdrew the administrative reconsideration application on the spot.

　　【Typical Significance】

　　"Hearing" and "conciliation" are two new procedural mechanisms added to the newly revised Administrative Reconsideration Law. Hearings are a procedural system for administrative reconsideration organs to hear major, difficult, and complex administrative reconsideration cases, which can not only effectively protect the procedural rights of the parties, especially applicants, but also help to comprehensively ascertain the facts of the case and promote the substantive resolution of contradictions and disputes. Settlement is of positive significance for reducing the costs and expenses of the parties, improving the efficiency of administrative reconsideration, and achieving the conclusion of the case. In this case, the administrative reconsideration agency organically combined the two new mechanisms of "hearing" and "reconciliation", and organized the parties to make statements, defenses, presentation of evidence, and cross-examination of the relevant facts of the case by holding hearings, giving the applicant the opportunity to express their own interests in person, and after learning that the applicant's supporting environmental protection facilities had not passed the acceptance but had been completed and operated normally, and had actually reduced the risk of endangering the ecological environment, it lost no time in coordinating the disputes between the two parties and promoting dialogue and consultation between the two parties. Helping to find a solution acceptable to all parties, and finally promoting mutual understanding between the two parties, while effectively resolving administrative disputes, it also helps applicants enhance their awareness of compliance management through legal interpretation.

Expert commentary

Handling every administrative reconsideration case with high quality and efficiency

An important focus - a biotechnology company is not convinced

The District Ecology and Environment Bureau applied for administrative reconsideration of administrative punishment

Cao Ling

China University of Political Science and Law

Vice President and Professor, Government Research Institute for the Rule of Law,

Director of the National Research Center for Supervision and Anti-Corruption

　　Give full play to the role of administrative reconsideration as the main channel for resolving administrative disputes, and require reconsideration organs to earnestly improve the quality and efficiency of handling every administrative reconsideration case. The quality and efficiency of administrative reconsideration emphasizes the organic unity of the quality of case handling and the effect of trial. Among them, the quality of case handling requires the reconsideration organ to improve the level of substantive resolution of administrative disputes by strengthening procedural justice and substantive justice; The effect of the trial of the case requires the reconsideration organ to effectively play the function of supervising and safeguarding the administrative organs' administration in accordance with the law and protecting the legitimate rights and interests of the parties on the basis of resolving individual disputes in accordance with the law. In order to effectively improve the quality and efficiency of administrative reconsideration, the newly revised Administrative Reconsideration Law regards hearing and mediation as two important measures to innovate the concept of administrative reconsideration trial, and raises them from the "Regulations for the Implementation of the Administrative Reconsideration Law" to a higher level of legal provisions. This reflects the newly revised Administrative Reconsideration Law's emphasis on fully exploring the true demands of the parties, promoting communication between the two parties, and substantively resolving administrative disputes in a flexible manner during the trial of cases, so as to effectively avoid the protracted resolution of contradictions and disputes, and effectively improve the ability of administrative reconsideration to resolve administrative disputes efficiently and flexibly. In this case, the reconsideration organ actively took the role of accurately discovering the focus of the dispute in the case through the hearing procedure, and then achieved the best case-handling effect by promoting the reconciliation of both parties, and the administrative dispute was substantively resolved, and its exemplary significance is mainly reflected in the following two aspects.

　　It is necessary to be good at using the hearing procedure to hear administrative reconsideration cases. The newly revised Administrative Reconsideration Law stipulates that "a hearing shall be heard" and "may be heard", providing a system for the reconsideration organ to apply the hearing procedure, and clarifying that the hearing record is an important basis for the reconsideration organ to make a reconsideration decision. Recently, the Ministry of Justice promulgated the "Administrative Reconsideration Ordinary Procedure Hearing Measures", which makes detailed provisions on the hearing circumstances and procedures on the basis of the newly revised Administrative Reconsideration Law, which consolidates the institutional guarantee for the trial of reconsideration cases to be conducted in a visible way, thereby improving the fairness and effectiveness of the trial of reconsideration cases. This case involves professional and technical fields such as hazardous waste storage in the field of ecology and environment, and the reconsideration organ applies the hearing procedures in accordance with the law, and both parties fully express their opinions during the hearing process, so that the reconsideration organ can fully understand the origin and substantive demands of the applicant's dispute, accurately grasp the crux of the dispute in the case, and provide a procedural basis for the smooth progress of subsequent mediation and settlement.

　　It is necessary to be good at taking mediation and reconciliation as the primary way to resolve administrative disputes. The newly revised Administrative Reconsideration Law clarifies mediation as a principled content in the General Provisions, realizes the full coverage of mediation for all types of reconsideration cases, and strengthens the enforcement of administrative reconsideration mediation documents, reflecting the concept of "due diligence due diligence". Recently, the Ministry of Justice issued the "Guiding Opinions on Further Strengthening Administrative Reconsideration Mediation Work to Promote the Substantive Resolution of Administrative Disputes", which specifically makes systematic provisions for the whole chain of the administrative reconsideration mediation system, and comprehensively requires all localities to establish and improve the administrative reconsideration mediation work mechanism, strengthen the guarantee of administrative reconsideration mediation, and effectively give play to the important role of mediation in promoting the substantive resolution of administrative disputes. In this case, the applicant was dissatisfied with the administrative penalty decision, and under the coordination of the reconsideration organ, the respondent realized that the original penalty was too heavy and made a new penalty decision within the scope of statutory discretion, and finally the two parties reached a settlement and the applicant withdrew the application for reconsideration on the spot. The reconsideration authority in this case was pragmatic and efficient, and actively guided and promoted the parties to settle on the basis of full communication, which not only facilitated the respondent's timely self-correction, but also achieved the effect of resolving disputes by dividing points and ending disputes through flexible methods.

　　The newly revised Administrative Reconsideration Law's provisions on hearing procedures and the mediation system reflect a major change in the way administrative reconsideration is heard. The newly revised Administrative Reconsideration Law strengthens the hearing procedure, breaking the long-standing principle of adjudication based on written review, and reflects the concept of improving the fairness of the trial procedure by fully hearing the opinions of the parties. The newly revised Administrative Reconsideration Law comprehensively strengthens the application of mediation, reflecting the legislative intent of the legislature to shift the trial structure from administrative acts-centered to administrative disputes-centered adjustment, and from the perspective of improving the quality and efficiency of case handling, the reconsideration organs are required to actively guide and promote the parties to reach an agreement in a flexible manner and then end the trial procedure. In the process of implementing the newly revised Administrative Reconsideration Law, reconsideration organs at all levels and localities may formulate detailed rules in accordance with the new concepts and new requirements established by the newly revised Administrative Reconsideration Law in accordance with local conditions, take hearings and mediation as important points of focus for handling administrative reconsideration cases with high quality and efficiency, and take the improvement of the quality and efficiency of administrative reconsideration as the guide, and earnestly promote that the vast majority of administrative disputes can be concluded in the administrative reconsideration procedure and resolved thoroughly and effectively.

Source: WeChat public account of the Ministry of Justice