Research On The Litigation System For Ecological Damage Compensation

The problem of ecological damage has become one of the main environmental issues in China during the transition period,and the public and the ecosystem are facing unprecedented challenges and risks.In reality,as infringers who pollute or destroy the ecological environment,they rarely bear the responsibility for ecological restoration or compensation,but the government bears the responsibility for the aftermath.This phenomenon of taxpayers paying for the offender is contrary to fair legal value.In the context of the construction of ecological civilization,there is an urgent need to build a responsibility system for ecological environmental damage in China to solve the predicament of insufficient relief of ecological environmental damage or rehabilitation of the government.For this reason,a litigation system for compensation for ecological environmental damage has emerged.The eco-environmental damage compensation litigation system established by the "Reform Plan" which entitles the government to be the right holder of compensation,implements the principle of liability for damage by claiming repair costs from the damager,and realizes the fair distribution of responsibility for the compensation of ecological damage.As a new type of system related to the major adjustment of the relationship between administration and justice,the exploration of ecological environment damage compensation litigation is not smooth.In practice,there has been no "blowout" phenomenon in ecological environmental damage compensation litigation cases,which is contrary to the serious problem of ecological environmental damage in my country and the urgent need to construct a damage compensation system.Through combing and investigating the judgment documents of the ecological environment damage compensation litigation,it is found that the litigation has problems.for examplesuch,confusion of the subject of the claim,blurred scope of the case,different evaluation and identification standards,and alienation of liability into monetary compensation.The practical effect is quite limited.The reasons that deeply restrict the advancement and development of the ecological environment damage compensation litigation system are mainly due to the following three points.First,the national ownership of natural resources serves as the legal basis for the government to file a claim,which aims to solve the predicament of the absence of the subject of the damaged natural resource claim.This interpretation path of "specifying environmental elements and ecosystems as objects of property rights,thereby indirectly achieving the purpose of caring for the ecological value of environmental elements" has many problems that cannot be self-consistent in logic.Second,the nature of ecological damage is the infringement of environmental public interests.The enforcement of administrative law should have been the first choice for environmental protection.Instead,the government has turned to litigation as the claimant.Under the premise of not setting exhaustive administrative remedies,the litigation system may raise doubts about the misalignment of administrative power and judicial power.Third,in the field of ecological environmental damage relief,there are ecological environmental damage compensation litigation and environmental civil public interest litigation about the same ecological environmental damage facts.For this reason,before designing the specific rules of the ecological environment damage compensation litigation system in China,it is necessary for the above problems to be stripped and scientifically rigorous.Otherwise,it will not only cause a serious waste of legislative and judicial resources,but also cause directional errors in the system.Disputes over the nature of the national ownership of natural resources and the intersecting objections of the multiple interests represented make it more difficult to determine the nature of the ecological environment damage compensation litigation.Moreover,the range of nationally owned natural resources cannot cover the ecological environment,which makes it have functional limitations in relieving damage to the ecological environment.On the basis of rethinking that the national ownership of natural resources cannot provide a strong legal basis for the litigation system,a new approach is taken,from the perspective of rights to the perspective of obligations,and returning to the perspective of public trust obligations and national environmental protection obligations to demonstrate the of legitimacy.of ecological environmental damage compensation litigation.On the one hand,from the perspective of the theory of public trust,the public as the trustor entrusts the public environmental rights and interests to the government,and the government as the trustee has the public trust obligation to manage and protect the ecological environment,which not only can't give up the trust obligation arbitrarily,but also effectively manage and protect natural resources according to the actual situation to actively fulfill the obligation.When the entrusted environmental natural resources are damaged,the government as the entrusted party naturally has the right to sue the entrusted environmental natural resources and has the obligation to protect them from damage.On the other hand,the ecological environment is owned by the whole people,and the government has the obligation to manage and protect the ecological environment on behalf of the whole people.When the ecological environment is damaged,the government is obliged to make claims for protecting the public environmental interests from damages,which strengthens the government and its departments' sense of responsibility for the protection of public environmental interests.At present,the theoretical and practical circles' positioning of the nature of the ecological environment damage compensation litigation is mainly discussed within the theoretical framework of the national ownership of natural resources,including views of private interest litigation,public interest litigation,national interest litigation and mixed litigation.However,the existing research has not yet glimpsed the full picture of the nature of the ecological environment damage compensation litigation,and it is still waiting to touch the fundamental crux for a systematic analysis and explanation.On the basis of rebutting the above theory one by one,analyzing from the three perspectives of the purpose of litigation,the nature of liability and the tools of liability,the ecological environment damage compensation litigation is positioned as a “public law litigation”.That is,the government is actively seeking the cooperation between executive power and judicial power in order to better realize the constitutional goal of "Beautiful China".In the process of advancing the ecological environment damage compensation litigation,the court showed a pragmatic standpoint to deal with the ecological environment damage and the active power bias of the administrative power operation.This role positioning actually blurred the boundary between judicial power and administrative power.Throughout the evolution of the role of environmental administrative power and environmental judicial power,they have experienced the "private litigation adjudication role of the court under the passive administrative model","the role of the court as a check and balancer of environmental regulation under the active administrative model" and "The role of the court as a substitute for environmental regulation under the risk administrative model." On the whole,ecological and environmental protection should follow the principles of "administrative priority" and "respect for expertise".Specifically,on the one hand,the problem of ecological environmental damage should follow the principle of exhaustive environmental administrative relief,and the priority should be resolved through administrative power.Therefore,in practice,attention should be paid to the positive role of the administrative order and pre-litigation consultation system in dealing with environmental damage.It needs to be emphasized thatt the legal nature of pre-litigation consultation is consultative administrative law enforcement,and the compensation agreement reached should be an administrative contract.On the other hand,the government's litigation for compensation for damage to the ecological environment is a new way of law enforcement to fulfill the national environmental protection obligations,and it is an indispensable means of environmental administrative control,aiming to achieve "full coverage" of accountability for ecological damage.It must be noted that the proper role of judicial power in ecological environmental damage compensation litigation is "active neutrality".It should stay within the limits of public power,and must not interfere with the rights that the parties should enjoy as the subject of the procedure,let alone exercise the right of punishment on behalf of the parties,so as not to affect the court's role as a neutral judge.Eco-environmental damage compensation litigation and environmental civil public interest litigation are highly consistent in the scope of application,litigation claims and litigation purposes.This overlapping system design has caused conflicts in practice.Tracing back to the source lies in the confusion and dislocation of the positioning of my country's environmental damage compensation litigation and environmental civil public interest litigation.It is urgent to clarify and correct the essence of the two litigations,and then return to their respective normal tracks to exert their institutional functions.From the perspective of system generation,the nature of environmental public interest litigation is preventive supervision of government law enforcement,and the role of public participation is played to supervise and urge local governments and their environmental protection departments to actively perform environmental protection duties to promote corporate compliance with environmental laws and prevent violations The occurrence of activities so that public interests can be effectively protected.The nature of the ecological environment damage compensation lawsuit is a compensatory government law enforcement lawsuit,which is a relief system created when the existing administrative control methods cannot satisfy the damage compensation function,aiming to restore the damaged ecological environment.It can be seen that the functions of environmental civil public interest litigation are misplaced,which makes the role of public participation evolve from supervising law enforcement to acting on behalf of law enforcement.For this reason,in the future,the proper direction for my country to safeguard the public interest of the environment is to design categorized litigation design,build a binary litigation model integrating prevention and compensation that combines environmental administrative public interest litigation and ecological environmental damage compensation litigation,and gradually eliminate the dislocation Environmental civil public interest litigation.Through basic issues such as the legitimacy of the ecological environment damage compensation litigation and the relationship with the environmental public interest litigation system,the decoupling and the scientific and rigorous argumentation.Next,we need to return to the top-level design to arrange specific rules,design a fair,reasonable and effective ecological environment damage compensation litigation system to implement the principle of damage responsibility,and promote prevention with responsibility.Based on the practice and legislative experience of the domestic ecological environment damage compensation system,on the one hand,it is necessary to further scientifically promote the introduction of relevant judicial interpretations of the Civil Code to achieve the convergence of the ecological environment damage compensation liability clause with the environmental law;on the other hand,it is the most ideal What is needed is to promulgate as soon as possible an "Eco-Environmental Damage Relief Law" with both substantive and procedural rules.This is an appropriate choice for returning to the field of "public law" based on the public and social requirements of ecological environmental damage.In the future,the design of the Ecological Environment Damage Relief Law should focus on how to design and plan this system from a holistic and overall perspective.It is particularly important to coordinate the relationship between administrative power and judicial power and set up a typed litigation system,so as to form a litigation system integrating prevention and compensation.The specific structure of the ecological environment damage compensation litigation system should focus not only on the design of pre-litigation procedural rules,but also the design of specific rules at the litigation stage.Specifically: First,as a pre-litigation procedure created by our country,the negotiation of compensation for ecological environmental damages is designed on the basis of focusing on public participation.It should not only control the administrative power,but also improve the administrative efficiency.The compensation agreement reached through the pre-litigation negotiations is actually an "administrative contract".If the person liable for compensation fails to perform the contract,the non-litigation enforcement procedure should be used to provide relief.The second is that the qualification of the plaintiff in the ecological environment damage compensation lawsuit should be limited to the scope of the government at or above the prefecture and city level to accept the case,apply joint liability to broaden the scope of persons liable for compensation,improve the ecological environment damage assessment rules to reasonably determine the scope of compensation,and thus determine the ecological environment.Restoration priority,supplemented by monetary compensation,and punitive compensation is appropriately applied to achieve the purpose of preventing ecological damage.Third,the effective operation of the litigation system for damages to the ecological environment requires the support of related supporting systems and convergence rules.To this end,suggestions for improvement are made from three aspects: the ecological environment damage compensation fund system,the socialization rules of ecological environmental responsibility,and the connection rules with related public law penalties.