Caixin Weekly | Seeking Answers to the Issue of Excessive Punishments for Minor Offenses (AI Translation)

财新周刊｜求解“小过重罚”

The article provides an in-depth analysis of the ongoing public consultation and debate surrounding China’s draft “Ecological and Environmental Code” (hereafter, "the Draft Code"), which, after the Civil Code, is set to become China's second comprehensive code. As of June 13, 2025, the Draft Code had gathered 11,176 public comments, significantly fewer than the more than 100,000 received for the Civil Code. However, it has sparked robust discussion, especially among grassroots environmental law enforcement officers, regarding issues of "excessive punishment for minor offenses" and the proportionality of penalties. [para. 1]

In recent years, cases of heavy fines for minor infractions—particularly in the food safety sector—have attracted public scrutiny. A notable example is a 74-year-old shopkeeper in Guangxi who was fined 50,000 yuan for selling a single expired bottle of wine worth 78 yuan. After multiple levels of unsuccessful legal appeals, the penalty was eventually waived by prosecutorial intervention. Scholars and practitioners argue that such cases stem less from rigid enforcement and more from “severe punishment” measures codified into law in response to public concern, leaving little discretion to enforcement personnel. [para. 2][para. 3]

In the environmental sector, the revision of the Environmental Protection Law in 2015 introduced considerably harsher penalties, including significantly higher minimum fines (often starting at 200,000 yuan) and “dual punishment” for both institutions and individual responsible parties. This has led to a dilemma: strictly adhering to the law can result in rejected cases for disproportionate penalties, while being lenient or omitting penalties can expose officials to accusations of dereliction. [para. 4][para. 5]

When the Draft Code was published for feedback in April 2025, over half of the initial 61 submitted opinions focused on the “legal responsibility and supplementary provisions” section. A particularly contentious clause is Article 1080, regarded as a “death penalty” provision in administrative law, mandating mandatory shutdowns for enterprises found evading environmental regulation, regardless of subjective intent or severity. Ground-level officials argue this is overly punitive and practically inapplicable. [para. 6][para. 7][para. 8]

Other disputed provisions include those stipulating high minimum fines for procedural violations—often starting at 200,000 yuan and involving overlapping penalties, which can quickly reach crippling levels for small businesses. Enforcement officers have noted the difficulties this causes, especially as recent regulatory reforms (such as the 2021 implementation of a pollutant discharge permit system) have obsoleted some older requirements now merged into the Draft Code. [para. 9][para. 10][para. 11]

Case studies from frontline enforcers illustrate that even minimum penalties can devastate small businesses, sometimes driving them to closure, which raises philosophical questions about the true aim of environmental penalties. The trend toward heavier penalties has accelerated since the “strictest environmental law in history” was launched in 2015, coinciding with a marked drop in the number of enforcement cases—the 2023 caseload fell by 66% from its 2017 peak, even as average fines doubled from 40,000 to around 80,000 yuan. Many high-minimum penalties are rarely used, as officials are reluctant to apply them, further highlighting the issue of proportionality. [para. 12][para. 13][para. 14][para. 15]

There is also a “reverse penalty” phenomenon: where minimum legal fines exceed those levied for more serious infractions, making it easier to waive penalties than to reduce them. Twenty-six provincial-level agencies now have “no-penalty lists” for minor offenses, but the minimum non-punishable amounts are still higher than many fines. Despite this, the Draft Code largely retains these high thresholds, with few substantive adjustments in response to practitioner feedback, except for some new exemptions for natural persons and minor infractions. [para. 16][para. 17][para. 18]

Legislators and legal scholars are divided: while the Draft Code’s drafters argue that stiff penalties correct the problem of “low cost for illegal behavior,” others, including National People’s Congress members and jurists, fear excessive rigidity and disproportionality. They advocate for clearer differentiation between large and small enterprises, fairer gradations of penalty amounts, more flexible implementation standards, and limiting heavy penalties to egregious violations. [para. 19][para. 20][para. 21][para. 22][para. 23]

With the Draft Code expected to be finalized in 2026 and replacing at least ten existing laws, grassroots officials urge that their concerns be addressed, as opportunities for future legal amendments will be very limited. Overall, the central challenge remains: how to ensure proportional, effective, and just environmental enforcement through scientifically designed legislation that does not inadvertently harm economic actors or undermine enforcement credibility. [para. 24][para. 25][para. 26][para. 27]