- Department:Chemicals Administration Ministry of Environment
The newly added regulation in the revised Toxic and Concerned Chemical Substances Control Act ( 毒性及關注化學物質管理法 ), announced on 16 January 2019, sets in place the appropriation of illegal gains obtained from violating the Act, on top of fines. Hence, the EPA accordingly has formulated the Regulations Concerning Calculation and Estimation of Illegal Gains from Violating the Toxic and Concerned Chemical Substances Control Act (違反毒性及關注化學物質管理法所得利益核算及推估辦法). It will serve as a calculating and estimating reference for competent authorities, to help uphold justice and confiscate illegal gains.
The EPA explained that fines have been the most commonly applied penalty for past violations of environmental regulations. Fine amounts are based on Article 18 Paragraph 2 of the Administrative Penalty Act ( 行政罰法 ). Illegal gains could be considered fines if they exceed the maximum fine. Yet this method lessens or spares penalties for the violators, even though the illegal gains are in fact confiscated. Not only is it in no way environmental justice, but it also does not lead to fair corporate competition. For cases involving long-term or major violations, there may be conspicuous benefits in terms of assets (such as profiting from the use of toxic chemical substances whose use is restricted or banned pursuant to the Act) as well as inconspicuous benefits, or the costs that should have been incurred but were avoided. If these gains are not confiscated, there would be loopholes when penalties are imposed. Enterprises would then calculate the act of violating regulations to be more profitable, further leading to repeated offenses that can not be deterred.
The EPA went on to elaborate on the contents of the Regulations, which include reminding competent authorities of violations for illegal gains are to be confiscated; and the types, calculation, and estimation of conspicuous, inconspicuous, and total profits. Other than data for references, information sources, and confiscation periods, the Regulations also concern the burden of proof, relevant authorities’ responsibilities to assist in investigations, experts as assistant auditors, coordination mechanisms, and more. All of the above can serve as bases for competent authorities to confiscate illegal gains and make calculations based on the actual circumstances of individual cases.
Source: EPA Major Environmental Policies, January 2020
