The Study On The Institutions Of Environmental Administrative License Of Our Country

In environmental laws of many countries in the world, license is a main institution inpreventing environmental risks. Because license can bring all constructions and pollutionsinto united management of a government and control them strictly, it is used widely inmodern environmental laws.At present, there are two obvious defects in the research of environmental administrativelicense in our country. First, many scholars research environmental administrative licenseaccording to the theories of administrative law and neglect the theories of environmental law.The state make people to think that environmental administrative license is a realm ofadministrative law and is not a realm of environmental law increasingly. Second, manyscholars research single environmental administrative license item (the main objects ofresearch are environmental impact assessment license, pollution discharge license andgreenhouse gas discharge license) and neglect the whole research of environmentaladministrative license institutions. The research lacks macroscopic ken and can not reflect thewhole face and all defects of environmental administrative license institutions of our country.In view of above-mentioned conditions, the paper is a whole research aboutenvironmental administrative license institutions of our country. The research of the paper isfrom an angle of discipline crosses of environmental law and administrative law. Theresearch direction of the paper is to solve the real problems of China. Therefore, the paperanalyzed all kinds of defects about environmental administrative license institutions of ourcountry and put forward concrete proposals to solve those defects from three aspects (itemenactment and operation institutions and correction mechanism of environmentaladministrative license). The analysis of the paper is based on the fundamental theories ofenvironmental administrative license. Besides introduction and ending, the paper consists ofthe four sections listed below.The first section: the fundamental theories of environmental administrative license. Inthe section, the author combed the fundamental theories of environmental administrativelicense from five aspects. First, the author combed the definitions of academia aboutenvironmental administrative license and pointed out the defects of those definitions and putforward the new definition about environmental administrative license. Second, according to the viewpoint that modern environmental law is the organic mixture of prevention andtreatment law about pollution and nature protection law and energy law, the author dividedenvironmental administrative license into eight kinds: prevention and treatment license aboutpollution, natural resources protection license, special region protection license, animalwelfare license, city and countryside landscape protection license, substance circle license,energy license, qualification and gift license about specialized organization and personnelthat offer socialized service for environmental protection. The classification can clarify thescope of environmental administrative license. Third, the author related the four basictheories of environmental administrative license briefly: public trust theory, environmentalproperty right theory, external nature theory and political theory about interest group.According to the four basic theories, the author analyzed the three functions of environmentaladministrative license (controlling environmental risks, allotting environmental resources andoffering certificate of environment protection) and its five features (risk nature, sciencebackground, interests weighing, intergenerational balance,international relation). Fourth,the author pointed out that institutions construction of environmental administrative licensemust follow the eight principles in environmental law: principle of prevention, precautionaryprinciple, principle of science and technology promotion, principle of rational use, polluterpays principle, public participation principle, cooperation principle, principle of nationsovereignty of environment and resources and unharming external environment. At the sametime, the author pointed out the fundamental demands of the above-mentioned principles ininstitutions construction of environmental administrative license. Fifth, the author pointedout that environmental administrative license had the three bad effects in reality: interferingin market mechanism, increasing cost of handling affairs and evoking administrativecorruption. On the basis of the understanding, the author pointed out that legislator shouldpersist in a principle when they intended to enact an environmental administrative license:market mechanism is prior to administrative control. In other words, only when anenvironmental problem can not be solved by market ways (tax, allowance, mortgage money,environmental standard, environmental information, environmental administrative contractetc.) or supervising ways after the event, legislator may enact an environmentaladministrative license.The second section: the enactment of the items of environmental administrative license.The institutions of environmental administrative license of our country consist of a large amount of items of environmental administrative license. Therefore, the research of thepaper starts from items enactment of environmental administrative license. In legislations,items of environmental administrative license are enacted by environmental laws andregulations of single file usually. Because the central legislations have strong powers torestrict local legislations in our country (the reason is that our country is a country of singlesystem) and an environmental problem is not cut apart by administrative area (the reason isthat environmental problems reflect the relation of mankind and nature), items ofenvironmental administrative license of our country are mainly enacted by the centrallegislations. According to Administrative License Law, items of administrative license canonly be enacted by law, administrative regulation and decision of State Council in the centrallegislations. On the basis of the situation, the author used half year to clean up all items ofenvironmental administrative license that were enacted by laws and administrative regulationsand decisions of State Council of our country(the work followed the definition ofenvironmental administrative license in the first section of the paper). Also, according to theclassification of environmental administrative license in the first section of the paper, theauthor classified all items of environmental administrative license that were cleaned up andlisted them by tables in the appendix of the paper(all items of environmental administrativelicense amounted to511items). In the section, the author recounted the fundamental case ofitems of environmental administrative license that were enacted by the central legislations ofour country in the first place. Also, the author analyzed the problems of items enactment ofenvironmental administrative license and put forward suggests of legislation to solve theproblems.The third section: the operation institutions of environmental administrative license.The process of operation of an environmental administrative license may be divided into twostages. The first stage is the implementation of the environmental administrative license,including application, acceptance, censorship and decision. The second stage is transfer ofthe environmental administrative license. Of course, the author does not think that allenvironmental administrative licenses may be transferred. The theory of administrative lawthinks that administrative license of substance may be transferred and administrative licenseof person can not be transferred. The author thinks that there are four problems to meritserious study in operation institutions of environmental administrative license. The firstproblem is how to harness authority of weighing of administration in the process of implementation of environmental administrative license. Environmental problems are oftenregional. Also, environmental administrative license has the character of weighing benefitsand the decision of environmental administrative license is in the unknown case of scienceand technology often. Therefore, in order to suit measures of environmental management tolocal conditions, legislators often give the authority of weighing to the administration.Although authority of weighing may elevate efficiency of environmental administrativelicense and promote originality of environmental management, it is often misused to damagejustice of environment easily. Also, environmental administrative license has the nature ofrisk and the error of decision of it often leads to an ecological disaster. Therefore, how toharness the authority of weighing is a crucial problem in implementation of environmentaladministrative license. Modern environmental laws shall deal with the problem well. Thesecond problem is how to improve public participation of environmental administrativelicense. Because environmental administrative license has the nature of science andtechnology, some people thinks that environmental administrative license should be governedby specialists. But environmental administrative license often concerns conflicts of widebenefits, therefore, it is essential to guarantee soundness of decision of environmentaladministrative license through the procedure of public participation. At present, the researchof academia focused too much on public participation of environmental impact assessmentand neglect public participation of other environmental administrative licenses. Althoughenvironmental impact assessment license is the most important in all items of environmentaladministrative license, we can not neglect public participation of other environmentaladministrative licenses because public participation of various environmental administrativelicense is not different. Therefore, we should study the institutions of public participation ofenvironmental administrative license from macroscopic angle and find the problems ofuniversality about the institutions of public participation of environmental administrativelicense of our country and find a way of legislation to improve the institutions of publicparticipation of environmental administrative license. The third problem is the procedure ofacceleration of environmental administrative license. The purpose of the procedure ofacceleration is to elevate administrative efficiency. In this respect, at present, many localgovernments implement united transaction with regard to many environmental administrativelicenses of construction domain according to Administrative License Law. The pattern ofunited transaction can not attain the purpose of elevating administrative efficiency truly. On the contrary, the pattern is disadvantageous to correct implementation of environmentaladministrative license and leads to hidden dangers of ecology. Therefore, we should find akind of new procedure about acceleration of administrative license of construction domain torealize the balance of administrative efficiency and environmental justice. The fourthproblem is the measures of administrative intervention in the process of transfer ofenvironmental administrative license. The transfer of environmental administrative license isa kind of market mechanism and the purpose of it is to realize the optimal allocation ofenvironmental resources through market mechanism. However, market is not omnipotentand can failure. Therefore, market sometimes need to state intervention. In all measures ofstate intervention, administrative intervention is a very important respect. However, whenthe use of administrative intervention measures is more than necessary limitation, it will notonly disturb the market mechanism, may also appear power rent-seeking, transaction costsand low efficiency problem etc. In China’s current environmental administrative licenseinstitutions, there are many improper administrative intervention measures, which needs to beimproved rapidly. The section analyzed the problems of operation institutions ofenvironmental administrative license from the above four aspects and put forward concretesuggestions to improve the institutions.The fourth section: the correction mechanism of environmental administrative license.The correction mechanism is a kind of legal mechanism that is used to correct the actions ofviolating institutions of environmental administrative license.Without the correctionmechanism, the various environmental obligations that were set by the institutions ofenvironmental administrative license are only the claims of environmental morality and cannot realize the functions of environmental administrative license. In the structure, thecorrection mechanism of environmental administrative license is divided into the follow-upsupervision mechanism and the legal responsibility mechanism. The purpose of the follow-upsupervision mechanism is to find and affirm the illegal actions in the field of environmentaladministrative license. The purpose of the legal responsibility mechanism is to correct theillegal actions and punish the offenders. The two kinds of mechanism involves the two kindsof: administrative relative person and administrative subject (including administrative organand administrative personnel). From the practical perspective, the correction mechanism ofenvironmental administrative license of our country has many problems: environmentaladministrative punishments are weak; the discretion power of law enforcement of administrative organ is too broad; the disclosure obligations of the environmental informationof the licensee are often missing; the institution of going through license later within a timelimit can not connect with the other responsibility institutions well; the responsibilities ofmanagement and recovery and remedy that should be assumed by the administrative relativepersons are often missing; the responsibilities of the administrative organ and theadministrative personnel(the chief executive especially) do not reach the designated positionoften when they do not correctly perform the duties of environmental administrative license;the responsibilities of the indirect infringement of environmental administrative license arenot clear; the public participation mechanism is not perfect in the follow-up supervision ofenvironmental administrative license; the administrative compulsory institutions are sound inthe field of environmental administrative license; etc. In the section, The author combed therealistic condition of the correction mechanism of environmental administrative license of ourcountry. Then, the author analyzed the problems of the correction mechanism ofenvironmental administrative license from the two aspects of administrative relative personand administrative subject and put forward concrete suggestions to improve the institutions.Also, in the section, according to Administrative Compulsory Law that is issued newly, theauthor studied how to perfect the administrative compulsory institutions of environmentaladministrative license.