| Article 29 of the Environmental Protection Law amended in 2014 stipulates that "the state shall draw ecological red lines for strict protection in key ecological function zones,areas of sensitive and fragile ecological environment",and for the first time established a legal system of ecological red lines in legal form.Subsequently,a series of ecological red line demarcation and control work have been carried out across the country,and good results have been achieved.Red line while ecological protection system has been preliminarily established,but the red line on ecological protection academic field and practice field of connotation and denotation is disputed,ecological protection system of the red line is defined the nature of the right is not clear,misallocation and regional access evaluation system is not sound and so on a series of problems,red line drawn to realize ecological protection and control working under the rule of law,It also needs to be responded through concept definition and system perfection.At present,the "broad view" and "narrow view" of the concept of ecological protection red line reflect the controversy in the academic and practical circles on the definition of the concept.In a broad sense,the ecological protection red line refers to the space boundary and quantity limit set by the state in areas such as ecological service function,environmental quality safety and natural resource utilization that need strict protection.Its contents include ecological function red line,environmental quality red line and resource utilization red line."In a narrow sense",the ecological protection red line only refers to the control boundary or space designated by the state for key ecological function areas,sensitive areas and fragile areas of the ecological environment in the field of ecological service functions that need strict protection,and its content only includes the ecological function red line.The main difference between "broad sense" and "narrow sense" is the difference in the scope of protection.From the perspective of the integration of ecology,environment and resources,the "broad sense" is reasonable to some extent,but from the perspective of practical operation,the "narrow sense" is more in line with the requirements of institutional construction and implementation.In addition,in the narrow sense of the concept of the ecological protection red line,there are two viewpoints,namely,the "regional theory" and the "boundary theory".The focus of the disputes lies in whether the ecological protection red line is a "region" or a "boundary".Although the above viewpoints have been widely adopted by the academic and practical circles,there are still some problems in the analysis of word meaning expression and logical relations.From two aspects of concept elements and function orientation,the ecological protection red line should be defined as "the boundary that has special important ecological function in national ecological space and must be strictly protected".The ecological protection red line area not only includes key ecological function area,ecological environment sensitive area and fragile area.It also includes other areas of potential ecological importance that have been assessed,although not currently identified.The ecological protection red line system refers to a series of legal norms formulated or approved by the state to regulate the demarcation and management of the ecological protection red line in response to ecological security issues,including the ecological protection red line demarcation system,the ecological protection red line management and control system and the ecological protection red line responsibility system."Ecological footprint theory aims to strictly protect human footprint can continue to provide resources with biological production capacity of regional space",and ecological protection system of the red line function orientation is to obey the national ecological safety,ensure the security of the ecosystem service function,stable,with the core connotation of the ecological footprint theory.The government plays a leading role in the ecological environmental protection.In order to ensure that it fulfills its duty to safeguard the environmental public interest,it is urgent to strengthen the environmental responsibility of the government.The value goal of the ecological protection red line system is to safeguard the interests of the ecological environment and ensure the sustainable development of human society,which is consistent with the responsibilities and requirements of the government in environmental governance.The "Risk Prevention Principle" requires governments to actively take preventive measures to avoid environmental risks in the absence of clear scientific evidence.The red line system for ecological protection is established to deal with the uncertainty of environmental risks and aims to prevent the occurrence of environmental risks from the source,which is in line with the implementation concept of the "risk prevention principle".The core connotation of the integrated ecosystem methodology is to start from the integrity of the ecosystem,comprehensively consider the needs and values of society,economy and nature,and conduct comprehensive management of the ecosystem by various means such as administration and market,which is consistent with the management method of the red line system of ecological protection.Therefore,the theory of ecological footprint,the theory of government environmental responsibility,the principle of risk prevention and the integrated ecosystem methodology can provide theoretical support for the legal system of ecological protection red line.Ecological red line demarcation system refers to a series of legal norms formulated or approved by the state,organized by the department of natural resources under the State Council and guided the people's governments of all provinces(autonomous regions and municipalities directly under the Central Government)or their departments of natural resources to formulate ecological red line planning and submit it to the examination and approval authorities for approval.The right to delimit the ecological protection red line includes the right to draw up the ecological protection red line and the right to review and approve the ecological protection red line.The compilation of ecological protection red line planning is a preparatory work for the approval of ecological protection red line planning,and the approval of planning is of decisive significance for the determination of ecological protection red line planning.However,from the perspective of existing laws and regulations,rules and normative documents,the right to formulate ecological protection red line planning is not unified.Some people's governments at the provincial level exercise the right,and some people's environmental departments at the county level or above exercise the right.The right to review and approve ecological red lines is also exercised by different bodies.Some are exercised by the State Council or provincial people's governments,while others are exercised by the standing committees of provincial people's congresses or cities divided into districts.Therefore,there are two different views on the nature of the ecological protection red line demarcation power: "executive power" and "legislative power",and the allocation of the ecological protection red line demarcation power is not reasonable.In view of this,you should clear the ecological protect the right of the red line defined "executive power" is the essential attribute,and then from the right to draw the most key of the meaning of "set",clear ecological protect the right of the red line defined as "quasi legislative nature of the administrative power",based on the reference to the Dutch spatial planning,adhere to the principle of "reasonable centralization and moderate decentralization",Ecological protect the right of the red line defined hierarchical configuration,specific solutions for: natural resources administrative department under the State Council and the people's governments at the provincial level,the right to ecological protection line planning under the State Council,the competent department of natural resources to organize and guide and coordinate the provinces(autonomous regions and municipalities directly under the central government)to carry out the ecological protection of the people's government of red line planning work;The State Council exercises the right to review and approve the ecological protection red line planning,so as to achieve the effect of "departmental coordination and upper and lower linkage".The ecological protection red line management and control system refers to a series of legal norms formulated or approved by the state to regulate the development and management of the ecological protection red line area.The demarcation and marking system of the ecological protection red line and the regional access system are important components of the ecological protection red line management and control system.In the process of planning and implementation of the ecological protection red line,the "compensation" involved in the ecological protection red line in the current laws,regulations and normative documents has various expressions such as "ecological compensation","ecological protection compensation" and "ecological protection red line compensation",and the nature of the compensation involved in the ecological protection red line is not clear.In view of this,it is suggested to make clear that the compensation involved in the ecological protection red line includes administrative compensation and ecological protection compensation based on the "dual" distinction of applicable situations.The administrative compensation includes land expropriation compensation,expropriation compensation and trust interest protection compensation.The regional access system of the ecological protection red line is an important measure to regulate the development of ecological space and the utilization of natural resources.The regional access evaluation system of the ecological protection red line is conducive to the further implementation of the regional access mechanism of the ecological protection red line.However,the current laws and regulations and regulatory documents in the provisions of the red line area access evaluation system of ecological protection is regional access evaluation standard is not clear,regional access evaluation procedure is not sound and so on a series of problems,Suggestions from the legitimacy and rationality,effectiveness and necessity red line four aspects to perfect the ecological protection area access evaluation standard,We should improve the regional access evaluation procedures by clarifying the period of regional access evaluation,expanding information channels and introducing third-party evaluation agencies to participate in the regional access evaluation system.The red line liability system for ecological protection refers to a series of legal norms formulated or recognized by the state,and the adverse legal consequences that the doer should bear if he violates the management regulations of the red line for ecological protection.In terms of the nature of responsibility,the red line responsibility for ecological protection mainly includes administrative responsibility and criminal responsibility.In the red line responsibility for ecological protection,ecological restoration responsibility is often expressed in legal provisions in the form of "order to restore the original state" and "bioremediation measures".There are two views on the nature of "ecological restoration responsibility" in academic circles: "private law responsibility theory" and "public law responsibility theory".According to the theory of responsibility in private law,ecological restoration responsibility is a civil responsibility based on the right of claim.According to the theory of public legal responsibility,the responsibility of ecological restoration is "the public legal responsibility of the state administrative organs to regulate and supervise polluters' performance of ecological restoration by using public power".The legal nature of ecological restoration responsibility should be defined as "public law responsibility" from two aspects of legal responsibility and responsibility realization path.In terms of criminal liability of the ecological protection red line,the core content of legal interests of the ecological protection red line is national ecological security.At present,China's criminal law adopts the mode of "convergence + dispersion" to comprehensively protect the legal interests of ecological security,but there are still some problems,such as the lack of rigor in charge setting and the weak preventive penal system setting.In order to strengthen the protection of the legal interests of the ecological protection red line in the Criminal Law,it is suggested to set up "crime of endangering ecological security" and make it a similar crime,and optimize the penal system to improve it. |
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