The law enforcement bureau of D District applies the wrong law, and the punishment is extremely light, The procuratorial organ shall supervise and correct in accordance with Article 28 of the Regulations on the Administration of Urban Appearance and Environmental Sanitation in Zhejiang Province.
One is to hand over the construction waste to the self-employed households who are not qualified for disposal; The second is to guide the self-employed households to dump garbage at will.
The law enforcement bureau of District D applies the second paragraph of Article 22 of the Regulations on the Administration of Urban Construction Waste, and only deals with the situation that a construction company has handed over the construction waste to individuals for treatment.
Warning; 2.
When the same illegal act violates different laws and regulations at the same time, the Law Enforcement Bureau of District D shall give priority to the Law of the People’s Republic of China on the Prevention and Control of Environmental Pollution by Solid Wastes formulated by the Standing Committee of the National People’s Congress, rather than the departmental rule of the former Ministry of Construction, the Regulations on the Management of Urban Construction Wastes.
.
It is obviously inappropriate to not deal with the illegal behavior of the company dumping construction waste at will.
On December 14 of the same year, the Law Enforcement Bureau of District D considered that the act had violated Article 13 of the Regulations on the Administration of Urban Construction Waste (implemented in 2005), “The construction unit shall not deliver construction waste to individuals or units engaged in construction waste transportation without approval”, Therefore, according to the provisions of the second paragraph of Article 22 of the Regulations on the Administration of Urban Construction Wastes, “if the construction unit delivers the construction waste to individuals or units engaged in the transportation of construction waste without approval, the competent department of urban appearance and environmental sanitation of the municipal people’s government shall order it to make corrections within a time limit, give a warning and impose a fine of not less than 10000 yuan but not more than 100000 yuan”, an administrative penalty shall be imposed on a construction company: 1.
In fact, their behavior is equivalent to dumping the construction waste generated in the construction process into the second phase of the new city without authorization.
The applicable law is correct and the amount of punishment is appropriate, It is not appropriate to carry out procuratorial supervision of administrative violations in this case.
If a unit commits one of the acts in Item 2, Item 3, Item 4, Item 5, and Item 6 of the preceding paragraph, it shall be fined not less than 100000 yuan but not more than 1 million yuan;…” D District Law Enforcement Bureau applies the law wrongly, and the punishment is extremely light.
At the same time, after consulting the Zhejiang government affairs website, it was found that the administrative authorities in all parts of Zhejiang Province have been punishing the illegal dumping of construction waste in accordance with the current effective Regulations on the Administration of Urban Construction Waste for a long time, which is difficult and risky for procuratorial supervision.
In this case, a construction company handed the construction waste to the self-employed without the disposal qualification for disposal, and guided the self-employed to dump the waste at will.
The author agrees with the third view.
The specific reasons are as follows: First, the evaluation of illegal acts of a construction company in the Regulations on the Administration of Urban Construction Wastes is not comprehensive.
The second point of view is that, according to the provisions of Article 28 of the Regulations on the Administration of Urban Appearance and Environmental Sanitation in Zhejiang Province (revised in September 2021), the construction unit should timely remove and dispose the construction waste generated during the construction process in accordance with the provisions to prevent environmental pollution.
A fine of 40000 yuan.
A construction company delivers construction waste to self-employed households without disposal qualification for outward transportation and disposal, and guides 4 people to dump the waste at will, which is in line with the provisions of Article 28 of the local regulations, and should be fined between 100000 yuan and 1 million yuan.
Second, in terms of applicable level, laws take precedence over departmental regulations.
The District D Procuratorate believes that the administrative penalty is wrong in the application of law and the punishment is too light, and plans to carry out procuratorial supervision of administrative violations.
At the same time, it met the punishment provisions of the Regulations on the Administration of Urban Construction Waste, the Regulations on the Administration of Urban Appearance and Environmental Sanitation of Zhejiang Province, and the Law of the People’s Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste, However, the case should be punished according to the Law of the People’s Republic of China on the Prevention and Control of Environmental Pollution by Solid Wastes.
The Law Enforcement Bureau of District D applies the second paragraph of Article 22 of the Regulations to give a warning and fine of 40000 yuan to the company involved.
According to the review, the behavior of a construction company includes two aspects.
Units that dispose of construction waste shall clear and transport construction waste according to the prescribed route and time, and shall not discard, scatter or dump construction waste at will along the way.
On August 28, 2021, a construction company (construction unit) assigned its staff to guide Li, Lu, Wang, Ke and other four self-employed households to transport and dispose of the construction waste in the Nantang plot of W City, and guided four people to dump the construction waste randomly in the Phase II area of the new town in D District of W City, with a total of 10 vehicles and 40 cubic meters of construction waste being transported and disposed of.
The construction waste generated from house decoration shall be stacked at the designated place.
Those who violate the provisions of the second or third paragraph of this article shall be ordered to make corrections, and the unit shall be fined not less than 100000 yuan but not more than 1 million yuan, and the illegal gains, if any, shall also be confiscated; The individual shall be fined not more than 200 yuan.
The first point of view is that the behavior of a construction company handing construction waste to self-employed households without disposal qualification for outward transportation and guiding four people to dump at will is fully in line with the provisions of Article 13 of the Regulations on the Administration of Urban Construction Waste.
A construction company shall deliver the construction waste to the self-employed without the disposal qualification for outward transportation and disposal and guide them to dump at will, A fine of not less than 100000 yuan but not more than 1 million yuan shall be imposed.
After examination, the procurator who handled the case believed that the key of the case was how to correctly apply the administrative penalty standard determined by law.
This case meets the handling requirements of procuratorial supervision of administrative violations, and supervision of administrative violations should be carried out.
The third view is that, According to Item 4, Paragraph 1, Article 111 of the Law of the People’s Republic of China on the Prevention and Control of Environmental Pollution by Solid Wastes (amended in 2020), “In case of any of the following acts in violation of the provisions of this Law, the competent environmental health department of the local people’s government at or above the county level shall order correction, impose a fine and confiscate the illegal income: The construction unit dumps, scatters or piles up the construction waste generated in the construction process without authorization, or fails to utilize or dispose of the solid waste generated in the construction process in accordance with the regulations “; Article 111, paragraph 2 “…
