The Research On Consultation Mechanism Of Compensation For Eco-environmental Damage

In December 2017,the Central Office and the General Office of the State Council issued the Reform Plan of the Eco-environmental Damage Compensation System,which stipulates that the environmental damage compensation system shall be tried out nationwide.The system is a new way to remedy the damaged ecological environment.Different from the environmental civil public interest litigation,the environmental damage compensation system is introduced into the administrative subject,which makes the administrative subject assume its due responsibility in environmental governance and ecological environmental relief.The consultation mechanism proposed in the Reform Plan is to make full use of the professional and resource advantages of the administrative subject,reach agreement with the compensatory obligor through consultation,realize timely and efficient relief to the damaged ecological environment and safeguard the public interests of the ecological environment.In order to study the consultation mechanism of compensation for ecological environment damage,first of all,we need to clarify its theoretical basis and legal nature.At present,the mainstream academic views on the theoretical basis mainly include the theory of state ownership of natural resources,the theory of environmental public trust and the theory of public goods.Because "natural resources" can not cover the ecological environment and its service function protected by the ecological environment damage compensation system,the theory of state ownership of natural resources has limitations.In contrast,the theory of environmental public trust and public goods can better meet the original intention and operation needs of the system,and can provide theoretical basis for the system.On this basis,we need to define the nature of compensation consultation accurately and appropriately.It is reasonable to define compensation consultation as a new flexible administrative governance model by analyzing the characteristics,process and objectives of consultation as a whole.After clarifying the theoretical basis and nature of the consultation,we need to design the consultation mechanism in terms of the subject,initiation procedure,content,compensation agreement and implementation of the agreement under the guidance of the basic principles of voluntariness,equality,limited autonomy andpublic participation.Consultation subject includes compensation obligee,compensation obligor and consultation participant.To study the subject,we not only need to clarify the scope of each subject,but also need to make a detailed analysis and demonstration on the allocation of rights and obligations of each subject,so as to ensure that all parties can freely exercise their legitimate rights in the process of consultation and guarantee the equality and fairness of consultation.The initiation stage of the consultation is to solve the necessary prerequisite for the initiation of the consultation process.In order to make the compensation consultation efficient and smooth,it should be clear that starting the consultation needs to satisfy the conditions of ecological environment damage,taking emergency stop measures,completing damage investigation,and completing damage appraisal and evaluation at the same time.During the implementation of the consultation,the right holder and the obligor shall consult the facts of damage,the scope of compensation,the mode of compensation and other guaranteed clauses.There may be two outcomes of the consultation,one is the termination of the consultation,and the other is the agreement on compensation.After the parties have signed the compensation agreement,the court shall examine the compensation agreement and decide whether to give judicial confirmation.The goal of consultation for ecological environment damage compensation is to reach a compensation agreement,but signing a compensation agreement is not the end point of ecological environment relief.Whether the goal of ecological environment relief can really be achieved depends on whether the agreement can be effectively implemented.The implementation of compensation agreement includes the execution,use and management of compensation,the execution and evaluation of ecological restoration,and the guarantee mechanism of implement.This is the crucial final link in the operation of consultation mechanism for ecological environmental damage compensation.After the implement of the compensation agreement,the consultation procedure for compensation for ecological environment damage is concluded.