Property Study of Daily Consecutive Penalty Provision in Environment Laws of Taiwan Region

For the person violating prevention and control measures or has caused pollution, environment laws all set penalty provision. Moreover, for the person still does not improve within limited period, there is daily consecutive penalty provision. For that legal properties of these daily consecutive penalty provisions are administrative order penalty or administrative execution penalty,judicial practice in Taiwan always has different views. The target of ＂daily consecutive penalty＇ is compelling doers to fulfill their obligations or improve illegal state by continuously increasing property burden of obligor. The emphasis is fulfilling future responsibility or improving future,but not punishing the past violations. To realize the target of com- pelling obligor to improve,we should take administrative compulsory execution means. So, for the property of daily consecutive penalty,we should cleady position daily consecutive penalty as administrative execution penalty,and not only its penalty target has difference with administrative order penalty, but also made way and law enforcement focus are different from administrative order penalty.

环境重罚体系的轻缓化实施研究

我国的环境惩罚体系经历了从“违法成本低、守法成本高”到“重罚主义”的演变。然而,受环境质量改善、治理能力提升、重罚体系的负效应与“重新发现受害者”的需求等因素影响,环境重罚体系基于“传送带理论”的严格、规范执行日渐缺乏社会和经济基础。民事上惩罚性赔偿的限缩使用,行政上的免罚清单与刑事上的合规不起诉等轻缓化举措,是重罚体系短期内难以纠偏背景下的“次优选择”。然而,重罚体系的轻缓化实施存在使法律权威柔性化与环境治理政治化的重大弊端。为此,从立法论视角,应当对不同主体和违法行为构建轻重有别的责任体系,并明确恢复性司法的法效力;从实施论视角,应当激活协调发展原则,将轻缓化实施引入制度化通道,并通过重点监督惩处概率和“地方环境质量”,实现对轻缓化实施的间接审查。