


































Economics, Law and Policy 
ISSN 2576-2060 (Print) ISSN 2576-2052 (Online) 

Vol. 7, No. 3, 2024 

www.scholink.org/ojs/index.php/elp 

66 
 

Original Paper 

Research about the Regulation of Environmental Administrative 

Penalty Discretion 

Zhuoma Yangzong
1
 

1
 Political Science and Law, Tibet University, Lhasa, Tibet, China 

 

Received: October 25, 2024    Accepted: November 7, 2024   Online Published: November 8, 2024 

doi:10.22158/elp.v7n3p66              URL: http://dx.doi.org/10.22158/elp.v7n3p66 

 

Abstract 

With the rapid development of China’s social economy, environmental problems have become 

increasingly prominent. The construction of ecological civilization has become the focus of China’s 

socialist modernization construction. In the face of increasing environmental risks, it is difficult to 

regulate the exercise of environmental administrative penalty discretion and increase the difficulty of 

implementing environmental administrative penalty decisions due to the limitations of legislative 

regulation, negative judicial regulation and weak administrative regulation. Based on the basic theory 

of discretion in environmental administrative punishment, this paper analyzes the function of discretion 

in environmental administrative punishment, clarifies the necessity and principle of discretion in 

environmental administrative punishment, and puts forward the regulation path.  

Keywords 

environmental administrative punishment, discretionary regulation, modernization of ecological 

environment governance system  

 

1. Introduction 

With the accelerated development of urbanization, the ecological and environmental problems are 

characterized by rapid development and diversification. Environmental legislation is gradually put on 

the agenda, and the legal system of environmental administrative punishment is gradually improving. 

However, due to the diversity and professionalism of environmental issues, the legislature usually only 

clarifies the tasks and objectives that need to be completed, and cannot cover the specific details of 

environmental administrative penalties. With the revision of the “Environmental Protection Law” in 

2014 and the revision of other environmental separate laws, the administrative law enforcement 

authority of the ecological environment administrative organs has greatly expanded, the amount of 

fines and punishment measures have increased significantly, and the ecological environment 



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administrative organs enjoy a relatively large amount of administrative penalty discretion space. On 

May 22, 2019, the Ministry of Ecology and Environment issued the “Guiding Opinions on Further 

Regulating the Application of Discretionary Power of Environmental Administrative Punishment” to 

regulate the application and supervision of the discretionary power of ecological environment 

administrative punishment and prevent law enforcement risks. The opinion clarifies the applicable 

principles and systems of administrative penalty discretion, the general requirements and procedures 

for the formulation of discretionary rules and benchmarks, and the application of discretionary rules 

and benchmarks. The document requires “refining the discretion standard and compressing the 

discretion space”. Therefore, each region needs to formulate administrative normative documents 

according to the current situation of environmental law enforcement, and further refine relevant laws 

and regulations. In March 2020, the two offices of the central government issued the “Guiding 

Opinions on Building a Modern Environmental Governance System”, proposing that “strengthening the 

leading role of the government is the key, deepening the role of the main body of the enterprise is the 

fundamental, and better mobilizing social organizations and the public participation is the support to 

achieve the positive interaction between government governance and social regulation and enterprise 

autonomy”. The ternary subject framework of the modernization of the ecological environment 

governance system provides a new way of thinking for the regulation of environmental administrative 

penalty discretion. Therefore, under the background of the modernization of the ecological 

environment governance system, it is necessary for us to re-examine the shortcomings of the traditional 

discretionary regulation of environmental administrative punishment and explore more effective 

discretionary regulation methods. 

 

2. The Bottleneck of the Traditional Regulation Mode of Environmental Administrative Penalty 

Discretion 

With the development of society and the transformation of national administrative tasks, the traditional 

administrative discretion regulation mode is not enough to cope with the expansion of environmental 

administrative discretion in risk society. At the beginning of the emergence of administrative 

discretion, it tried to “completely limit administrative discretion to a certain range, so as not to be 

separated from the perspective of judicial review, in order to achieve the purpose of effective control of 

administrative discretion”. The theory of administrative discretion regulation has been developing 

continuously, forming traditional regulation methods such as legislative regulation, judicial regulation 

and self-regulation. In free countries with administrative intervention as the main administrative task, 

administrative discretion is regulated by legislative improvement and judicial review. With the 

emergence of the welfare state, the administration of payment has become the core of administrative 

tasks, the strength of the legislature has been weakened, and the executive has been given broad 

discretion. In order to limit the increasingly extensive discretion, Davis, an American scholar, proposed 

in 1969 to limit, construct and restrict administrative discretion through the self-restraint of 



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administrative organs. With the development of society, the welfare state has entered a risk society. 

National administrative tasks are no longer limited to payment administration, more importantly, risk 

administration. Risk administration requires the state, especially the government, to take the initiative 

to prevent risks. In this context, the administrative discretion space of administrative organs is broader, 

especially in the current surge of environmental risks, the space of environmental administrative 

discretion is expanding, and the traditional legislative, law enforcement and judicial regulation models 

have shown fatigue. It is difficult to effectively regulate the discretion of environmental administrative 

punishment by relying solely on traditional regulation methods. 

2.1 Theoretical Issues on the Regulation of Discretion of Environmental Administrative Punishment 

The legislative regulation of administrative discretion is generally realized by legislators through law. 

Due to the limitations of legislators’ ability and the language expression of the law itself, legislation 

also has limitations on the discretionary regulation of environmental administrative punishment. Due to 

the ambiguity of semantics, the complexity of reality, and the professionalism of administration, 

legislators cannot make precise specifications for every detail in the face of a wide variety of 

administrative acts that almost pervade all areas of social life. As a legal expert, legislators cannot 

foresee all aspects of social development. Legislation can only regulate problems that have emerged or 

are determined to emerge. However, with the development of social science and technology, 

environmental problems emerge in an endless stream. It is impossible to predict and regulate these 

problems by relying solely on legislators to amend the law in time. Therefore, it is not expected that 

legislators can achieve the effect of regulating social problems without omission and with strict logic 

through legal provisions. Administrative organs must be given relevant rights to find problems and 

make up for loopholes in the process of law enforcement. Therefore, no matter how hard the legislators 

try to accurately define the legal text and narrow the discretionary space, the discretionary space still 

exists due to the abstraction and ambiguity of the language, and it is difficult for the legislature to 

accurately locate and carefully regulate the discretion. Especially in environmental legislation, due to 

the professionalism, complexity and public welfare of environmental issues, environmental legislation 

is full of uncertain legal concepts, which cannot be correctly applied only by the language of legal 

norms. 

2.2 Environmental Administrative Penalty Discretion Judicial Regulation Negative 

The lag of environmental administrative justice makes it play a limited role in the regulation of 

environmental administrative penalty discretion. Environmental justice has different attitudes towards 

the review of environmental administrative penalty discretion, which also makes the judiciary show a 

negative trend towards the contraction of environmental power. First of all, environmental justice is 

generally a more modest attitude towards administrative power. As the last barrier of power, justice 

also has a lag in the regulation of environmental administrative penalty discretion. Judicial regulation 

of administrative discretion is generally achieved through administrative litigation. However, based on 

the principle of “no trial”, the vast majority of administrative acts will not enter the judicial 



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proceedings. The administrative counterpart does not file an administrative lawsuit based on various 

factors, or resolves administrative disputes through other means. “The court can only delve into a very 

small number of cases it accepts”, and the scope of judicial regulation on power contraction and 

discretion is extremely limited. Even if the case related to administrative discretion enters the judicial 

process, the judicial organ or the case review judge will generally respect the judgment of the 

administrative organ, not easily deny the decision-making of the administrative organ, and “emphasize 

the need to fully respect the judgment of the administrative organ, especially the first-time judgment 

right of the administrative organ”. 

Secondly, the judiciary is lagging behind and cannot fill the environmental damage caused by the abuse 

of environmental discretion. “Judicature is an after-the-fact control, which is not synchronized with the 

administrative act, and its significant defect is that it cannot restore the damage caused by the 

administrative act”. Ecological (environmental) damage is irreversible, and the repair cost of ecological 

(environmental) damage is much higher than its prevention cost. When the exercise of environmental 

power causes damage to the environmental rights and interests of the administrative counterpart or may 

cause damage, even through the time-consuming administrative litigation, it is impossible to prevent 

and prevent the occurrence of (environmental) damage in time. 

Finally, the judicial practice of administrative discretion regulation function is weak. According to 

Zhou Haoren’s search, collection and analysis of administrative litigation judgment documents from 

January 1,2015 to June 10,2018, it can be seen that there are only 134 judgment documents involving 

“obvious improper”, which can be described as “few as morning stars”. It can be seen that in the 

process of judicial trial, judges rarely exercise judicial regulation on administrative power on the 

grounds of “abuse of power”, “obvious injustice” or “obvious misconduct”. In China’s administrative 

justice, “the judicial concept of emphasizing legality review and neglecting rationality review prevails”, 

“academic research and judicial practice often appear far apart from each other”, “the judge’s economic 

man thinking makes it a cheap choice to avoid the application of abuse of power standards” and other 

factors, resulting in the weak function of justice in discretionary regulation. 

2.3 Self-regulation of Environmental Administrative Penalty Discretion Is Weak 

The environmental legal authorization is broad and unclear, which makes the government’s regulation 

of environmental administrative penalty discretion have congenital defects. The environmental law 

grants the government greater environmental administrative authority and gives the environmental 

protection administrative organ greater discretion space. However, the imperfect authorization of 

environmental laws and the unclear scope of authorization have aggravated the possibility of legal but 

unreasonable situations when the environmental protection administrative organs carry out 

environmental administrative punishment discretion. 

The lack of regulatory awareness of environmental power exercisers makes the government lack of 

motivation for the regulation of environmental administrative penalty discretion. The exerciser of 

environmental administrative punishment power is the staff of administrative organs, and the 



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administrative regulation of environmental administrative discretion also needs to be realized through 

the staff of administrative organs. However, when the administrative staff exercise the power of 

environmental administrative punishment, it is impossible to avoid the influence of subjective factors. 

The judgment of illegal acts, the analysis of illegal situations, the choice of applicable legal provisions, 

and the determination of the type and magnitude of punishment all require subjective consideration by 

the administrative staff. With the introduction and implementation of the new “Environmental 

Protection Law”, in order to combat environmental violations and control environmental pollution and 

other environmental problems, environmental administrative law enforcement is strictly carried out. 

Therefore, when environmental administrative law enforcement personnel exercise the power of 

environmental administrative punishment, they often choose the most severe punishment methods and 

punishment contents, and the situation of arbitrary exercise of discretion occurs from time to time. 

The new exploration of administrative regulation of environmental administrative penalty discretion is 

still not enough to form an effective regulation of environmental administrative penalty discretion. In 

2019, the Ministry of Ecology and Environment issued new guidance on standardizing the application 

of discretion in environmental administrative penalties, updating the discretionary regulatory 

documents issued 10 years ago. It can be seen that the central government tries to guide local 

governments to formulate environmental administrative penalty discretion benchmarks or rules through 

standardized environmental administrative penalty discretion benchmarks, rule-making processes, and 

institutional norms, and uniformly regulate environmental administrative penalty discretion. However, 

in theory, there is no conclusion on the subject of the formulation of the discretion standard, the scope 

of the effectiveness, the technical problems of the formulation, and how to deal with the conflicts of the 

discretion standard between the localities or the superiors and subordinates. In practice, whether the 

administrative discretion benchmark system will lead to the rigidity of law enforcement is increasingly 

questioned by scholars and law enforcers. For administrative organs, the formulation of discretionary 

benchmarks requires scarce resources and is technically difficult; the requirements of information 

disclosure will make the low-quality discretionary benchmarks invite the public’s ruthless criticism and 

ridicule. 

Therefore, it can be seen that legislation can not limit the space of environmental administrative penalty 

discretion. The judiciary has a modest attitude towards the discretion behavior and discretion standard 

of environmental administrative penalty. It is difficult to achieve a comprehensive regulation of the 

unprecedented expansion of environmental penalty discretion only by relying on the administrative 

self-regulation method of environmental administrative penalty discretion standard or discretion rules. 

 

 

 

 

 



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3. The Development of Environmental Administrative Penalty Discretion Regulation under the 

Framework of Modernization of Ecological Environment Governance System 

3.1 Administrative Self-Restraint Based on Self-Restraint 

Under the government-led modern ecological environment governance system, the government, as the 

main body of environmental power, regulates the discretion of environmental administrative 

punishment through its own behavior, which can maximize the realization of reasonable discretion and 

case justice, and is also the requirement of administrative self-restraint. Self-restraint emphasizes the 

“voluntariness” of administrative organs in self-restraint. If the law clearly stipulates that the 

administrative organ must formulate rules to limit the discretion, the limited discretion of the 

administrative organ is not autonomous, spontaneous and voluntary, it is not the embodiment of 

self-restraint. Therefore, the self-restraint of administrative discretion refers to the voluntary, 

spontaneous and autonomous self-limiting behavior of administrative organs. There are generally no 

laws and regulations, administrative orders, court judgments and other mandatory requirements and 

regulations. 

Based on self-restraint, environmental administrative organs voluntarily carry out discretionary 

regulation, which can promote the realization of case justice. The discretion of environmental 

administrative punishment is the way and means to realize case justice. There are various ways of 

environmental administrative punishment and a large range of fines. It is necessary to determine the 

final punishment method and fine amount according to the specific case situation. Because of this, the 

environmental administrative penalty is prone to the injustice of “different penalties for the same case”. 

According to the statistics of Zhejiang Province, in 2008, the average fine of environmental 

administrative penalty cases in Zhejiang Province was 37485 yuan. Among them, the average fine of 

some areas was as high as 80,000 yuan, while the average fine of some areas was only 24,000 yuan. 

The realization of the justice of environmental administrative punishment cases cannot be achieved by 

legislation or justice because of the different illegal situations, illegal subjects, environmental 

conditions, social and economic levels and other factors involved in each case. It is necessary to 

promote the realization of case justice through self-regulation of environmental administrative 

punishment discretion. The discretion of environmental administrative penalty is made by 

environmental administrative organs and their staff. They have rich experience in law enforcement and 

the most understanding of illegal acts. Therefore, they are also the most aware of what behaviors need 

to be regulated and how to regulate in the process of penalty discretion. Discretionary rules and 

procedures designed based on self-restraint can also “effectively achieve the purpose of granting 

administrative discretion by laws and regulations, and effectively prevent the abuse of administrative 

discretion”. 

3.2 Negotiation Regulation Based on Deliberative Democracy 

In environmental administrative punishment, enterprises, as administrative counterparts, are generally 

in a passive position and are difficult to participate in the discretion of environmental administrative 



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punishment. In the modern ecological environment governance system, enterprises are in the dominant 

position, which also provides an opportunity for enterprises to participate in environmental 

administrative law enforcement as the main body. In theory, “deliberative democracy” also provides a 

basis for enterprises to participate in the regulation of environmental administrative penalty discretion 

as the main body. Deliberative democracy is conducive to the realization of the substantive justice of 

the case of environmental administrative penalty discretion, and provides a new idea of consultation for 

the regulation of environmental administrative penalty discretion. Habermas pointed out: “A norm is 

obviously effective, only means that it has been fairly demonstrated; only the fair application of this 

norm can lead to a valid judgment in a case”. The law gives the environmental administrative organs 

discretion space rooted in the pursuit of case justice. The discretion of environmental administrative 

punishment and the self-regulation of discretion can only ensure the realization of procedural justice in 

individual cases, while substantive case justice cannot be judged by the behavior of the administrative 

organ. 

Consultative democracy requires consultation to run through the whole process of environmental 

administrative penalty discretion. The traditional administrative law is only a “point” in the study of the 

administrative behavior system, without considering the study of the administrative process. The study 

of administrative process not only decomposes an administrative act into different links and stages, but 

also studies the relationship between several related administrative acts, as well as the interaction 

between the subject of administrative act and the administrative counterpart. In modern risk 

administration, it is necessary to consider the risks in the whole process of administrative behavior 

from the perspective of administrative process theory, so as to truly realize risk regulation. On the one 

hand, enterprises should participate in the negotiation of environmental administrative penalty 

discretion related policies. Based on the deliberative democracy system, the deliberative administrative 

regulation model can “directly absorb the relative person to participate in the formulation process of the 

regulatory policy, with the help of the relative person’s knowledge, and the relative person together to 

form the conditions and benchmarks for the specific operation of the administrative discretion in the 

case, so as to limit the exercise of the administrative discretion individually, win the cooperation of the 

administrative relative person, and achieve the goal of benign administration”. On the other hand, 

enterprises should participate in the process of environmental administrative penalty discretion. 

Deliberative democracy is not limited to the democracy of policy making, but should be reflected in the 

democracy of the process and results of administrative law enforcement. Therefore, enterprises should 

also have the right to participate in environmental administrative punishment, participate in the 

decision-making process, negotiate the decision-making results, and fully participate in the 

administrative discretion process to achieve regulation. 

3.3 Social Regulation Based on Administrative Legitimacy 

In the modern ecological environment governance system, social organizations and the public are 

widely involved in environmental governance, which also provides an opportunity for social 



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organizations and the public to participate in environmental administrative punishment and social 

regulation of environmental administrative punishment discretion. Under the ternary main framework 

of the modern ecological environment governance system, the government, enterprises and the public 

interact with each other, and the restriction of the punishment discretion of the environmental 

administrative organs also needs to be carried out at the same time. The self-regulation of 

environmental administrative organs is an internal restriction mechanism, and there may also be abuse 

of power. The restriction of enterprises on the punishment and discretion of environmental 

administrative organs is carried out through participation in consultation, which is an external 

mechanism. However, due to the imperfect rules of government-enterprise consultation in China, it is 

impossible to provide a perfect guarantee mechanism for enterprises to participate in consultation, so 

that there is a grey area in the restriction of enterprises on the punishment and discretion of 

environmental administrative organs through consultation. This requires another most important 

subject in social co-governance, the public, to fill the restriction gap, form a complete regulatory 

mechanism under the modern ecological environment governance system, and achieve mutual balance. 

The introduction of public participation in the modern ecological environment governance system is in 

line with administrative justice and democratic administration. 

The principle of administrative legitimacy and democratic administration also provide a theoretical 

basis for the social regulation of environmental administrative penalty discretion. The principle of 

administrative justice originated from the natural justice in British law and developed in the due 

process of law inherited by American law. As the operation of administrative power, the principle of 

administrative legitimacy must meet the minimum standard of procedural justice, including avoiding 

partiality, fair hearing and administrative openness. The essence of social regulation is the exercise of 

public rights, the core is the public participation in the process of administrative penalty discretion, is 

the extension and supplement of political democracy in the administrative field, is an important basis 

for the realization of administrative justice. Participation is the cornerstone of democratic politics. 

Political democracy and administrative democracy together constitute the main content of modern 

democracy and the core concept of modern constitutional system. In modern democratic countries, the 

institutionalization and proceduralization of civil rights, especially the right of participation and 

supervision, is the basis for citizens to participate in the administrative process and compete with 

administrative power. Through social sanctions, it is necessary to “establish and improve the concept 

and system of participatory administration, supervise and restrict the correct exercise of administrative 

discretion”. In the modern ecological environment governance system, the public is an important 

subject. It is an inevitable requirement of administrative democracy to consider the public interest and 

the democratic value of the public concern in the discretion of environmental administrative penalties. 

Under the requirements of the principle of administrative legitimacy, environmental administrative 

punishment should introduce public participation. The public supervises the discretion of the 

environmental administrative organs, obtains the information about environmental administrative 



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penalties disclosed by the environmental administrative organs, and participates in the hearing of 

environmental administrative penalties, regulates the discretion of environmental administrative 

penalties, and ensures the legitimacy of the penalty discretion. The social regulation of environmental 

administrative penalty discretion is the final guarantee set under the modern ecological environment 

governance system. The regulation of environmental administrative penalty is realized by social 

regulation, and the regulation of self-regulation of administrative organs and enterprise negotiation 

regulation is realized at the same time, so as to ensure that the ternary regulation system can play a real 

regulatory effect. 

 

4. Renewal of Environmental Administrative Penalty Discretion Regulation Mode under the 

Framework of Modernization of Ecological Environment Governance System 

4.1 The Way of Self-Regulation of Environmental Administrative Punishment Process by 

Administrative Organs 

Based on the theory of administrative restraint, the self-regulation of environmental administrative 

penalty discretion is not the regulation between the staff of environmental administrative organs, nor 

the leadership’s control over subordinates. The self-regulation of environmental administrative penalty 

discretion is endogenous, which is generated from the administrative organs and administrative 

personnel themselves, and is realized through a series of mechanisms within the administrative system. 

The environmental administrative organs regulate the discretion of punishment through the formulation 

of administrative rules and the standardization of administrative procedures, and regulate the 

discretionary behavior of the staff of the environmental administrative organs through the internal 

supervision and accountability mechanism of the environmental administrative organs; based on the 

principle of self-restraint, the staff of environmental administrative organs improve their professional 

and legal quality, regulate their discretionary behavior of environmental administrative penalties 

through internal regulation, and conduct environmental administrative penalties in accordance with the 

rules and procedures formulated by environmental administrative organs. Specifically, the 

self-regulation of environmental administrative penalty discretion under the framework of modern 

ecological environment governance system is a regulatory behavior with environmental administrative 

organs as the main body and self-control and self-restraint related entities and procedural rules as the 

means. 

The administrative organs should formulate relevant discretionary benchmark documents, procedures 

for the formulation of discretionary benchmarks, and publicize relevant documents. In the process of 

formulating relevant discretionary documents, we should attract the participation of enterprises and the 

public, listen to their opinions and suggestions, make the discretionary benchmark document easy to 

implement, and truly limit the discretionary space. After the occurrence of environmental violations, 

the environmental administrative organs exercise the right of environmental administrative punishment, 

carry out environmental administrative law enforcement activities, and enjoy a large discretionary 



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space. For the discretionary regulation of environmental administrative punishment, the administrative 

organs should formulate clear procedural rules, establish a sound law enforcement record system, 

discretionary review system and collective review system. 

After the implementation of environmental administrative penalty discretion, environmental 

administrative organs can still realize the self-regulation of environmental administrative penalty 

discretion through internal supervision such as environmental supervision, environmental supervision, 

environmental administrative reconsideration, accountability and post-assessment procedure of 

environmental administrative penalty discretion benchmark. Environmental supervision and 

environmental supervision are the active supervision of environmental administrative organs. It is the 

supervision of environmental administrative supervision organs on the daily law enforcement of 

environmental administrative organs and the exercise of environmental administrative penalty 

discretion. Environmental reconsideration is the passive supervision of environmental administrative 

organs. After the administrative counterpart files an administrative reconsideration, the reconsideration 

organ reviews the discretionary behavior. The post-assessment of the discretionary benchmark can 

comprehensively examine the implementation of the discretionary benchmark, improve the 

discretionary benchmark itself, make it more rationalized, and more in line with practical needs. 

4.2 The Way of Negotiation Regulation for Enterprises to Participate in the Process of Environmental 

Administrative Punishment 

Based on democratic consultation, the regulation of environmental administrative penalty discretion 

requires consultation between environmental administrative organs and environmental administrative 

counterparts in the whole process of formulation, implementation and implementation of environmental 

administrative penalty discretion documents. That is, through the negotiation system, enterprises 

participate in the negotiation of environmental administrative punishment before, during and after the 

event, and form a regulation on the whole process of environmental administrative punishment. 

First of all, the pre-negotiation regulation of enterprises, that is, through administrative contracts, set up 

environmental protection facilities standards, emission standards, etc. in line with the actual situation of 

each enterprise, as well as penalties for breach of contract and violation of law, to encourage 

enterprises to abide by the law. The agreement on breach of contract and illegal punishment in the 

environmental administrative contract negotiated by both parties forms a constraint on the subsequent 

environmental administrative punishment discretion. 

Secondly, through the participation of enterprises in environmental administrative punishment, the 

discretion is regulated. On the one hand, through the explanation system and the hearing system, it is 

ensured that the opinions and suggestions of the administrative counterpart can be expressed and 

involved in the process of environmental administrative punishment. On the other hand, through the 

reconciliation system, enterprises and environmental administrative organs conduct consultations in 

environmental administrative punishment, which is conducive to reaching an agreement on 

environmental administrative punishment in informal occasions and conditions, reducing the 



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contradiction between “government and enterprises”, resolving the difficulty of implementation, and 

realizing the social benefits of environmental administrative punishment. Because the agreement 

reached through consultation between enterprises and environmental protection agencies has the nature 

of administrative contract, it has de facto binding force. In the process of environmental administrative 

punishment, the environmental administrative organ can choose to negotiate with the counterpart 

through the exercise of discretion, and reach an agreement on the punishment measures and the amount 

of punishment. 

Finally, after the decision of environmental administrative punishment is made, enterprises should also 

be given a certain opportunity to negotiate with the environmental administrative organs on the 

implementation mode and time of environmental administrative punishment, and the environmental 

administrative organs should make discretion on the implementation mode and time limit proposed by 

enterprises. Through the negotiation of the way of performance, the implementation of the decision of 

environmental administrative punishment is realized. 

4.3 The Social Regulation Mode of Public Participation and Supervision of Environmental 

Administrative Punishment Process 

Social regulation is the supervision and restriction of the government’s environmental administrative 

behavior through social subjects, including the public, including experts, media, and social 

organizations and so on. Social control generally includes two important forces: one is to 

counterbalance power with rights; the other is the power of supervision by public opinion. In summary, 

its essence is still to regulate and limit the power of administrative organs by the rights of various 

subjects in society. The social regulation of environmental administrative behavior is realized through 

the public’s right to know, participation and relief. 

First of all, social regulation is premised on public knowledge. Through the right to know, the public 

knows the “environmental administrative penalty discretion”, “environmental administrative penalty 

discretion benchmark”, “environmental administrative organs and administrative counterparts on the 

administrative penalty to carry out the consultation process and the final result”, etc., to achieve the 

environmental administrative penalty discretion and its self-regulation and consultation regulation 

supervision and restriction. 

Secondly, the public evaluation system is introduced into the environmental administrative punishment, 

“the public participation mechanism is introduced into the review process of environmental 

administrative punishment, and the public evaluation panel is formed to hold the public evaluation 

meeting of the case to evaluate the discretion of the original law only to the administrative organ”. 

Public review can be recruited by government agencies to the society according to certain conditions, 

and a public review database can be established. The public review meeting is held 1 to 2 times a 

month, and each meeting is attended by 5 public reviewers. The public reviewers are randomly selected 

from the public review pool. The public reviewers make public comments on the preliminary opinions 

of the case materials and punishments to form public opinions. The administrative organ takes the 



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public opinion as an important basis for the final administrative penalty decision. The public review 

system absorbs the public to truly participate in the process of environmental administrative penalty 

discretion, and realizes the regulation of environmental administrative penalty discretion. At the same 

time, the public, as the supervisor and participant, supervises the procedure of environmental 

administrative punishment of administrative organs, participates in the hearing and reconciliation in the 

process of environmental administrative punishment, and regulates the administrative self-control and 

negotiation regulation. 

Finally, the public’s right to environmental relief. On the one hand, the public supervises the 

performance of environmental administrative organs. If it is found that the discretionary behavior of 

environmental administrative organs is illegal or unreasonable, which may damage the public interest, 

public interest litigation can be brought to the court according to law. On the other hand, the public 

supervises the negotiation process and negotiation results between the enterprise and the environmental 

administrative organ. If it is found that the government and the enterprise’s “collusion” in the 

negotiation process, or the enterprise does not act in accordance with the contract, it can be regulated 

by reporting or litigation. 

 

5. Conclusion 

Under the influence of the modernization of the ecological environment governance system on China’s 

environmental governance, the modern governance system has introduced a multi-party co-governance 

framework of the government, enterprises and the public. With the revision of environmental laws, the 

space for environmental administrative authority and administrative penalty discretion has expanded. In 

order to achieve case justice, the environmental administrative organs have issued new discretionary 

benchmarks and procedural provisions to limit the space for self-discretion. Regulating the exercise of 

discretion, urging administrative organs to exercise public power according to law, protecting the 

legitimate rights and interests of administrative counterparts, improving the rationality of the exercise 

of discretion, and preventing the abuse of public power are of great significance to China’s 

environmental protection cause and the construction of a government ruled by law. 

 

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