| Administrative penalties are the fundamental means of environmental law enforcement. However, a review of the current environmental quality in China shows that the regulatory function of administrative penalties has not been given full play to. And an examination from the perspective of functional system shows that the environmental administrative penalty system is inadequate in the following three dimensions, i.e., legal deterrence, risk prevention and ecological restoration. In the legal deterrence dimension, China should establish an illegal benefit deprivation system in environmental fines. In this system, the scope of illegal benefit deprivation should include positive benefits and negative benefits, and the legal nature of illegal benefit deprivation should be positioned on accumulative penalty between the maximum of statutory penalty and the total amount of illegal benefit, but should be limited to the benefit deprivation of the relative person of non-compliance action in cases per se. In the risk prevention dimension, risk beurteilungsspielraum should be given to administrative organs on the basis of undefined legal concepts, so as to plug loopholes in risk prevention. On the one hand, we should use analogy, prediction and the lower standard of proof to determine the undefined legal concept of reality, and on the other hand, we should use Robert Alexy's weight formula to make appropriate judgment on undefined legal concept of value. In the ecological restoration dimension, the first priority is to clarify the dominant role of administrative power in ecological restoration in terms of norm and function, then to prove that it pertains to administrative penalty in theory. On this basis, we could establish systematic ecological restoration responsibilities in administrative penalties from three perspectives of direct restoration, alternative restoration and restorative fines. |
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