| The eco-environmental protection of the basin has typical positive externality characteristics.The ecological input of the upstream region directly benefit the downstream region,resulting in the profit and loss relationship of regional interests between the upstream and downstream of the basin.For a long time,due to geographical location,resource endowment,institutional deprivation and other factors,the upper reaches of the basin have sacrificed development opportunities and invested in ecological governance costs to continuously deliver ecological benefits to the lower reaches,leading to unbalanced regional development and poverty in the upper reaches.The traditional regional coordination mechanism relies on the vertical financial transfer payment compensation of the central government to the upstream region,ignoring the horizontal interest transfer relationship between the upstream and downstream of the basin.It cannot compete with the interregional horizontal compensation mechanism regarding compensation effect,incentive effectiveness,or compensation accuracy.Based on the profit and loss relationship between upstream and downstream,watershed horizontal compensation provides room for extensive cooperation and interaction between regions.With the evolution of the concept of public governance from top-down power rule to diversified induced governance and from command political authority to incentive cooperative co-governance,the contract model has become an effective means of cooperative governance among local governments.Based on the equal,consultative,and voluntary dialogue relationship between two or more subjects,contract governance is widely carried out to promote regional coordinated development in China.The contract governance model of interregional local governments on public affairs has become an important practice and mainstream pathway to horizontal compensation between the upstream and downstream of the river basin.However,as a new governance tool for the interaction between local governments in recent years,the river basin horizontal compensation contract model has encountered many challenges in its practical operation,resulting in ambiguous legal relations between the subjects of the horizontal compensation agreement,unbalanced allocation of rights and obligations in the contractual relationship,unclear legal nature of the river basin horizontal compensation agreement,doubtful legal effect,and lack of standardized standards for the text of the horizontal compensation contract.A series of problems,such as insufficient control of the procedural mechanism of the horizontal compensation contract,failure to form a standardized and long-term contract governance model,and failure to take the advantage of the contract mechanism in the horizontal compensation relationship of the river basin.Although scholars have generated preliminary findings of river basin horizontal compensation,some studies focused on theoretical elaboration of the basic theory of river basin horizontal compensation.Others studied the legal relationship,essential attribute,subject system,right structure,and other basic problems of river basin horizontal compensation from the legal perspective.Still others investigated the coordinated governance of river basin ecological compensation.Although this line of research has touched on some important issues,very few studies has concentrated on governance mechansims associated with river basin ecological compensations.At the same time,the basin horizontal compensation contract is a typical example of local intergovernmental agreements.Although research on local intergovernmental agreements has been conducted,its scopes,methods,and focuses are mostly limited to the perspective of administrative law.This thin line of inquiry represents a framework and general research on local intergovernmental agreements,lacking attention to the distribution of rights and obligations and in-depth investigation on local intergovernmental agreements.Basin horizontal compensation contract signals a type of local government agreement and the core of basin horizontal compensation relationship,requiring studies to fully assess both aspects to have a comprehensive understanding of the issue.The purpose of this dissertation is to make an overall and systematic assessment of the specific governance means of basin horizontal compensation contract mechanism.The goal is to standardize the horizontal compensation contract governance of the river basin,make the local governments of the river basin realize the balance of the profit and loss relationship between the upstream and downstream interests of the river basin through the legal contract means,and enhance the coordination and fair distribution of regional interests.Based on the origin of horizontal compensation theory,this project reveals the theoretical legitimacy of horizontal compensation contract governance.According to the empirical investigation and case analysis of the current river basin horizontal compensation contract governance in China,this dissertation analyzes the legal problems existing in the practice of river basin horizontal compensation contract in China.Then,based on the practical problems and the particularity of the relationship of river basin horizontal compensation contract,this study provides a solution approach around the analysis of legal relationship,contract effectiveness,basic structure of contract and dispute resolution in the governance of river basin horizontal compensation contract.The details are as follows:The first chapter is “The origin and contract of watershed horizontal compensation theory”.Taking the theoretical basis of river basin horizontal compensation system as the analytical framework,this chapter analyzes the traditional river basin horizontal compensation mechanism and its shortcomings,and expounds the institutional rise and theoretical basis of contract governance between local governments on regional public affairs.The horizontal compensation of river basin comes from the supply and use of ecological service existed between the upstream and downstream administrative divisions,with mutual benefit profit and loss relationship and the characteristics of regional public goods.The exchange of interests between non subordinate administrative subjects carries out dialogue,consultation,and cooperation in the form of equality and voluntariness.The institutionalized and standardized contract model has become an effective mechanism for consultation between the parties involved.The second chapter is “Background,basis and essential implication of the governance system of horizontal compensation contract of watersheds in China”.We analyze the basic paths and shortcomings of traditional watershed horizontal compensation mechanisms such as counterpart assistance and horizontal financial transfers in China,sort out the policy guidelines and legal basis of horizontal compensation in China’s watersheds,and trace the legality basis of horizontal compensation agreements between local governments in China based on existing legislative texts.The horizontal compensation contract governance mechanism of watersheds is based on the concept of overall regional interests,which occurs between regions with non-administrative affiliation and mutual interests,and aims at the coordination and distribution of ecological and economic development interests between regions.It is essentially a system designed for the demand,supply and distribution of inter-regional ecological services,a regional public good,between regions,and is based on institutionalized and standardized contractual models for negotiation and cooperation to make horizontal arrangements for the transfer of benefits.The third chapter is “An examination of the current status of horizontal compensation contract governance in China’s watersheds”.This chapter compares20 agreements of horizontal compensation in watersheds in China by means of empirical analysis,reveals the basic features of the current governance of horizontal compensation contracts in watersheds in China,and provides a general overview of the existing contract governance models with a typological perspective.Then,this dissertation empirically studies China’s basin horizontal compensation,reveals its basic characteristics,and focuses on analyzing the problems existing in China’s basin horizontal compensation agreement in practice,such as the unclear legal relationship,unclear contract effectiveness and attribute positioning,standardization of contract text,lack of contract dispute resolution mechanism and so on.This study demonstrates the above problems one by one in the current and following chapters and puts forward the optimization approach.The fourth chapter is “Composition of horizontal compensation contract relationship of river basin”.Based on the problems of chaotic allocation of rights and obligations of river basin horizontal compensation and the unclear legal relationship in practice,this project posits that the contractual relationship of river basin horizontal compensation should take into consideration both right standard and obligation standards,rather than one-sided emphasis on either position.We should comprehensively weigh the interest demands of damaged areas and beneficiary areas and clarify the generation elements and basic structure of compensation rights and obligations between the upstream and downstream of the basin on the basis of substantive fairness to ensure the benign operation of horizontal compensation contract governance.The conclusion of river basin horizontal compensation agreement should be based on the legalization of legalized compensation claim rights and compensation obligations.Through the legalization of rights and obligations,the essence of legalized distribution tools aimed at benefit coordination between the upstream and downstream of the river basin should be formed.The fifth chapter is “Analysis on the effectiveness of basin horizontal compensation contract”.The validity of the river basin horizontal compensation agreement is the premise of the performance of the river basin horizontal compensation agreement.At the same time,as an arrangement for ecological protection and interest compensation between the upstream and downstream of the river basin,the river basin horizontal compensation agreement often involves the rights and obligations of the public.This chapter starts from the internal and external effectiveness of the river basin horizontal compensation contract and addresses the key issues,such as the positioning of the legal attribute of the agreement,the effectiveness of the contract given by the central legislation,and the transcendence of the river basin horizontal compensation contract over the traditional contract theory.This study proposes that the basin horizontal compensation agreement is essentially a public law contract,which should be endowed with legal status through legislation at the central government level to restrict the behavior of the local governments as the contracting subject.Based on the effectiveness spillover of public law contract under the theory of the relationship between public interests and private interests,this project tackles the problem of the effective scope of river basin horizontal compensation agreement.The sixth chapter is “Basic structure of watershed horizontal compensation contract governance”.This chapter puts forward a standardized approach to the specific terms and conclusion procedures of the agreement due to the lack of standardization of the text of the current river basin horizontal compensation agreement and the standardization of the contracting procedures in China.In particular,considering the main dispute in the upstream and downstream of the basin in practice(e.g.,the determination of compensation benchmark and compensation standard),it is proposed to determine the compensation benchmark through the consideration of multiple factors,so as to divide the rights and obligations between the subjects of the upstream and downstream basins.At the same time,based on the dimension of cost and benefit,the horizontal compensation standard of the basin shall be comprehensively determined around the cost inputs,such as pollution control and ecological protection or restoration directly or indirectly adopted by the upstream area,as well as the economic income increment brought using the ecological service supply of the upstream area in the downstream area.The procedure control of river basin horizontal compensation agreement includes the optimization approaches of basic contracting procedure design,public participation procedure,and construction of the judicial review system.The seventh chapter is “Procedural control of horizontal compensation contract in watersheds”.This chapter reveals the current problems of contracting procedures of horizontal compensation agreements in watersheds in China,and designs rules for the core procedural control,dispute resolution mechanisms,and third-party regulation of contract governance.Firstly,the core procedural control of the horizontal compensation contract mechanism includes the initiation of contract governance mechanism,compensation defense mechanism,consistent decision-making rules,performance evaluation mechanism.Secondly,the dispute resolution of the contract needs to be based on the special contracting subject of local government,we propose to seek the dispute resolution solution in the existing administrative and arbitration mechanisms.Third,through the implantation of stakeholder participation mechanism and internal regulation of the administrative system,the third-party regulation of horizontal compensation contract governance is essential.The eighth chapter is “Legalization of horizontal compensation contract governance in watersheds”.This chapter focuses on the legalization of horizontal compensation contract governance in China’s watersheds,and explores the path of legislation and the way of legislative transformation on the basis of revealing the background,needs of legalization.The legalization of horizontal compensation contract governance in watersheds can follow the basic path of local legislation first and central legislation forward.To realize the legalization of horizontal compensation contract governance in watersheds,we shall identify the source of law in horizontal compensation policies in watersheds and transform them based on the extraction of basic components of law. |
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