Zou Kun: Establish a diversified dispute resolution mechanism to adapt to the complexity and professionalism of carbon emissions trading

Zou Kun Partner of Beijing Zhonglun (Wuhan) Law Firm

The "Decision of the Central Committee of the Communist Party of China on Further Comprehensively Deepening Reforms and Promoting Chinese-Style Modernization"(hereinafter referred to as the "Decision") adopted by the Third Plenary Session of the 20th Central Committee of the Communist Party of China emphasized the need to improve the socialist legal system with Chinese characteristics and put forward suggestions for further promoting administration according to law. Specific requirements. Focusing on the importance of the rule of law in the process of Chinese-style modernization, especially the practical problems existing in the process of law enforcement and supervision, the reporter recently interviewed Zou Kun, a partner of Beijing Zhonglun (Wuhan) Law Firm.

China Environment News: The rule of law is an important guarantee for Chinese-style modernization. The Third Plenary Session of the 20th Central Committee of the Communist Party of China put forward clear requirements for further promoting administration according to law. Please talk about the importance of the rule of law in the process of Chinese-style modernization, especially in the field of ecological and environmental governance. What key role does administration according to law play?

Zou Kun:The rule of law is regarded as a significant advantage of the socialist national system with Chinese characteristics and the national governance system. Comprehensively governing the country according to law is not only a requirement for the construction of the rule of law, but also a necessary means to promote the modernization of the national governance system and governance capabilities. In terms of ecological and environmental governance, administration according to law is the key to ensuring effective governance. The rule of law provides a clear legal basis and implementation standards for ecological and environmental protection, making environmental governance work more systematic and standardized. Through legal means, the behavior of enterprises and individuals can be better regulated and the ecological environment can be protected. In ecological and environmental governance, the rule of law not only provides a governance framework, but also ensures the execution and fairness of policies. For example, through the implementation of environmental laws and regulations, environmental pollution behaviors can be effectively supervised and managed.

Take the Yangtze River Protection Law as an example. The Yangtze River Protection Law, as my country's first legislation for specific river basins, marks that Yangtze River protection has entered a new stage of comprehensive rule of law governance. The first is to clarify responsibilities and clarify the responsibilities of governments at all levels and relevant departments in the protection of the ecological environment of the Yangtze River, and require the establishment and improvement of a coordination mechanism for the protection and restoration of the ecological environment in the Yangtze River Basin; the second is to standardize behaviors and regulate water resource utilization and water in the Yangtze River Basin. Strict regulations have been made on pollution prevention, ecological protection and restoration, etc., limiting emission standards for polluting enterprises, and strengthening penalties for illegal activities; The third is to promote rectification. After the implementation of the law, provinces and cities along the Yangtze River have stepped up rectification efforts on polluting enterprises, shut down a large number of enterprises with serious pollution, and effectively improved the ecological environment of the Yangtze River.

China Environment News: The "Decision" proposes to promote the cross-regional connection of administrative law enforcement standards. Regarding the problem of "different penalties for the same case" in the field of ecological environment, what institutional levels do you think should be started to promote the unification and connection of cross-regional law enforcement standards?

Zou Kun:In response to this problem, I think we can start from the following aspects:

The first is to unify and improve laws and regulations, integrate and revise existing ecological and environmental protection laws and regulations, and eliminate conflicts and differences between different laws.

The second is to establish a regional joint meeting system, hold regional joint meetings regularly to discuss and resolve problems in cross-regional environmental law enforcement, and unify law enforcement standards and procedures.

The third is to implement standardized law enforcement procedures, promote standardized law enforcement procedures and document formats, optimize discretionary benchmarks, and ensure consistency in law enforcement in different regions.

The fourth is to strengthen the training and exchanges of law enforcement personnel, regularly train law enforcement personnel, and improve their legal literacy and law enforcement capabilities. Encourage environmental law enforcement officers from different regions to conduct exchanges and learningXi, share law enforcement experience and practices.

The fifth is to strengthen law enforcement supervision and accountability, strengthen supervision of environmental law enforcement activities, and ensure fair and open law enforcement. Conduct serious accountability for unfair law enforcement and different penalties in the same case to ensure the seriousness and authority of the law.

Sixth, encourage social participation and public supervision to increase society's attention to environmental protection. Establish and improve public complaint and reporting mechanisms to make the public an important force in supervising environmental law enforcement.

China Environment News: The "Decision" mentioned the need to improve the benchmark system for administrative discretion in areas such as administrative penalties. In the field of ecological environment, how to refine and improve the benchmark system for discretion for administrative penalties to ensure that law enforcement is both strong and warm, strictly protect the ecological environment, and avoid excessive law enforcement?

Zou Kun:In refining and optimizing the benchmark system for administrative penalty discretion, we should adopt multi-dimensional and systematic strategies to ensure the fairness, rationality and transparency of law enforcement.

The first priority is to establish a clear and unambiguous framework of discretionary benchmarks. According to the characteristics of different environmental violations, formulate detailed discretion rules, including factors such as the nature, circumstances, consequences of the violations, quantify the discretion standards as much as possible, avoid excessive discretion results, and provide law enforcement personnel with clear penalties. standards.

It is also crucial to build a scientific and reasonable discretion grading system. According to the severity of the illegal act, the illegal act is divided into different levels, and corresponding penalty standards are set for each level. When deciding, fully consider the seriousness of the illegal act, including the number of violations, duration, scope of influence, etc.

Enhancing the transparency and openness of the discretion process is a key part of enhancing public trust. Publicize the basis for discretion, make discretion benchmarks and rules public, accept social supervision, and ensure transparency in law enforcement. Record the discretion process, requiring law enforcement personnel to record in detail the considerations and decision-making process during the discretion process for subsequent review and supervision.

Paying attention to the improvement of professional literacy and practical guidance of law enforcement personnel cannot be ignored. Through regular training and analysis of discretionary rules, the comprehensive quality and law enforcement capabilities of the law enforcement team will be continuously improved. In addition, typical cases with guiding significance are released to provide vivid discretionary reference for front-line law enforcement personnel and promote the unity and standardization of law enforcement practice.

It is equally important to implement a flexible dynamic adjustment mechanism for discretionary benchmarks. The rationality and applicability of discretion benchmarks need to be evaluated regularly, and adjustments and optimizations should be made in a timely manner based on social changes and new situations and problems in law enforcement practice. At the same time, we actively listen to and respond to opinions and suggestions from all walks of life to ensure that discretion benchmarks are always close to reality and in line with public opinion.

Finally, protecting the legitimate rights and interests of the parties is the basic principle of administrative penalty work. Before a penalty decision involving significant interests is made, the parties concerned should be given sufficient hearing rights to ensure that they have the right to express their opinions and defend themselves within the legal framework.

China Environment News: The Third and Fourth Plenary Sessions of the 18th CPC Central Committee emphasized the importance of improving the connection mechanism between administrative law enforcement and criminal justice. The "Decision" also requires the improvement of the two-way connection system between administrative penalties and criminal penalties. In your opinion, what are the shortcomings of the "connection between the two laws" in the field of ecological environment? How to achieve it more effectively "two-law convergence”？

Zou Kun:In the field of ecological environment, the shortcomings in the "connection between the two laws" mainly include insufficient information sharing, inconsistent evidence standards, unclear accountability, and insufficient professional capabilities.

In order to more effectively realize the "connection between the two laws", we can start from the following aspects: First, establish an information sharing platform to achieve efficient transmission of case clues, evidence materials and other information. The second is to unify evidence standards and formulate operational evidence conversion rules. The third is to clarify the accountability mechanism and hold accountable for non-transfer or wrongful transfer of cases. The fourth is to improve professional capabilities and strengthen criminal legal knowledge and skills training for administrative law enforcement personnel. The fifth is to strengthen the collaboration mechanism, establish a joint meeting system, achieve simultaneous intervention and joint investigation by administrative law enforcement and criminal judicial agencies, and ensure the effective implementation of the "early intervention" system of public security agencies.

China Environment News: With the development of carbon emission rights market trading, carbon-related dispute cases will increase. What do you think are the unique legal characteristics and controversial focuses of carbon emissions trading cases? How should we accurately apply the existing legal framework and explore innovative legal application methods?

Zou Kun:Carbon emissions trading cases have legal characteristics such as cross-departmental legal application, special nature of rights, market mechanisms and high degree of internationalization. The focus of controversy mainly focuses on the legal nature of carbon emission rights, fairness of quota allocation, compliance with trading rules, and monitoring reporting and certification.

In order to accurately apply the existing legal framework and explore innovative methods of applying the law, we can:

Improve legislation: amend existing environmental protection laws to clarify the legal status and trading rules of carbon emission rights; issue relevant judicial interpretations to clarify the legal application issues in carbon emission rights trading cases.

Strengthen administrative guidance: Government departments will issue guidance documents to clarify the specific operating procedures and regulatory requirements for carbon emissions trading.

Establish a diversified dispute resolution mechanism: Establish a diversified dispute resolution mechanism, including mediation and arbitration, to adapt to the complexity and professionalism of carbon emissions trading.

In addition, technical means such as big data and blockchain are also used to improve the transparency and efficiency of carbon emissions trading.

China Environment News: As a senior environmental lawyer, facing the new challenges of ecological and environmental governance, what innovative paths or measures do you think are worth exploring in administration according to law?

Zou Kun:Improve the ecological and environmental laws and regulations system, covering areas such as environmental protection, resource utilization and management, and ecological restoration to ensure that there are laws to follow. Sort out existing laws and regulations to eliminate contradictions and conflicts between laws.

Strengthen the implementation and supervision of laws and regulations, clarify the ecological and environmental law enforcement responsibilities of governments and departments at all levels, and ensure that responsibility falls to everyone. At the same time, establish and improve a supervision mechanism for the implementation of ecological and environmental laws and regulations to supervise and evaluate law enforcement actions.

Improve law enforcement capabilities and use modern information technologies, such as remote sensing, big data, drones, and automatic online monitoring platforms for pollution sources to improve the accuracy and efficiency of law enforcement. Adhere to fair and civilized law enforcement, strictly abide by legal procedures, and protect the legitimate rights and interests of administrative counterparts. Improve the transparency of law enforcement and proactively accept social supervision.

Promote public participation and protect the public's right to know the environment by disclosing environmental information in accordance with the law. When formulating environmental policies and regulations, public opinions are widely listened to through hearings, symposiums and other forms.

Strengthen legal responsibilities. Legal responsibilities shall be strictly investigated for violations of ecological and environmental laws and regulations. Establish and improve the compensation system for ecological and environmental damage, and compensate for acts that cause ecological and environmental damage in accordance with the law.

In addition, policy guidance and incentives must be strengthened. Formulate and implement green policies to guide enterprises and individuals to adopt environmentally friendly behaviors. Encourage enterprises to adopt environmentally friendly technologies and production methods through incentives such as tax incentives and financial subsidies.