Research On The Relief Of Eco-environmental Damage By Administrative Order

Eco-environmental damage refers to the damage to the ecological environment itself caused by human factors such as environmental pollution or ecological destruction,that is,damage to the ecological value of natural resources or environmental elements.In the concept of eco-environmental damage,it does not include the damage of personal rights or property rights and other private law rights.The object of eco-environmental damage is environmental public interest,which should be relieved through public law.China’s eco-environmental damage relief system is gradually developed in the process of China’s eco-environmental damage governance.On the whole,the relief of eco-environmental damage in our country has gone through the early stage of not relieving the eco-environmental damage,to the stage of giving consideration to the relief of eco-environmental damage through the way of civil tort liability,and then to the stage of relieving the eco-environmental damage through the dual channels of environmental civil public interest litigation system and eco-environmental damage compensation system.However,the environmental civil public interest litigation system and the eco-environmental damage compensation system,which occupy the core position in the current eco-environmental damage relief system in China,both have many inherent deficiencies,and these inherent deficiencies are difficult to be solved by surface repair methods such as system improvement.Therefore,it is difficult to achieve effective relief of eco-environmental damage through the environmental civil public interest litigation system and the eco-environmental damage compensation system.Moreover,other theoretical assumptions on the relief of eco-environmental damage put forward by Chinese scholars are difficult to be applied to the relief of eco-environmental damage in China due to certain deficiencies in the aspects of necessity,feasibility or appropriateness.In fact,there are some types of administrative orders in China’s environmental legal system,such as order to eliminate pollution,order to restore to the original state,order to compensate for losses and so on.Although the original intention of legislators to set up these administrative orders is not to use them to remedy eco-environmental damage,and through these administrative orders can not achieve complete relief of eco-environmental damage,but these administrative orders really contain part of the function of eco-environmental damage relief.However,for the purpose of drawing lessons from the practical experience of foreign citizens’ litigation system to remedy the eco-environmental damage through litigation,and for the purpose of encouraging judicial organs to actively innovate and make a difference in the relief of eco-environmental damage under the background of ecological civilization construction,Chinese legislators tend to regard the system of environmental civil public interest litigation and the eco-environmental damage compensation system as the main development direction of the relief of eco-environmental damage,which leads to the administrative order relief approach of eco-environmental damage being ignored to a certain extent.In fact,from the relevant legislation and judicial practice of western developed countries,such as Europe and the United States,it is relatively feasible and effective to remedy eco-environmental damage through administrative order.Based on the "free rider"theory,the state public power theory,the government’s environmental responsibility theory and the administrative efficiency theory in the field of eco-environmental damage relief embedded application,it is not difficult to find that in China,where the administrative power dominates all kinds of environmental affairs,it is a more appropriate choice to remedy the eco-environmental damage through administrative channels which is more efficient rather than judicial or other channels.Following this,under the basic framework of the relief of eco-environmental damage through administrative channels,the administrative orders that have the characteristics of timeliness,professionalism and universality and can effectively make up for the deficiencies of the environmental civil public interest litigation system and the eco-environmental damage compensation system should be taken as the priority choice of the eco-environmental damage relief in China,which is very conducive for China to build a scientific and complete ecological damage relief system that meets the actual needs.When building the administrative order relief system of eco-environmental damage,it should abide by the triple criteria of rationality:legality,necessity and effectiveness,and create four types of administrative orders that are specifically used to relieve environmental damage:ordering to eliminate environmental risks,ordering to restore the ecological environment,ordering offsite replacement restores,and ordering to compensate for ecological losses.Among them,ordering to eliminate environmental risks can be used as a preventive relief for the eco-environmental damage risks that have not actually occurred.Ordering to restore the ecological environment,ordering offsite replacement restores,and ordering to compensate for ecological losses can be used for the restorative or remedial relief of the actual eco-environmental damage results.For the purpose of further standardizing the relief system of administrative order of eco-environmental damage,it is also necessary to regulate the making process of administrative order of eco-environmental damage relief from the four dimensions of internal control system,information disclosure system,public participation system and rights protection system.In the administrative order relief system of eco-environmental damage,the administrative organ may be slack in fulfilling the relief duty of eco-environmental damage,which can be dealt with the procuratorial suggestion system,the administrative public interest litigation system and the public prosecution system.As for the situation that the administrative organ may damage the legitimate rights and interests of the administrative counterpart due to the misconduct in the relief of eco-environmental damage,it can be solved through administrative reconsideration,administrative litigation and petition.The situation which the person responsible for eco-environmental damage is indeed unable to perform the eco-environmental damage restoration or compensation liability can be resolved through socialized relief,government supplementary relief,and labor compensation.For the case that the person responsible for eco-environmental damage refuses to perform the administrative order,it can be handled by administrative representative,fine and transfer deposit,credit punishment and so on.