Study On The Consultation System Of Compensation For Ecological Environment Damage

Since the reform pilot project was launched in 2015,China's ecological environmental damage compensation system has been gradually explored and promoted.In December 2017,the “Eco-Environmental Damage Compensation System Reform Plan” was officially issued.In the reform plan,it is clearly stipulated that the consultations have not reached an agreement,and the compensation right holders and their designated departments or agencies should promptly file a civil action for compensation for ecological environmental damages,that is,pre-negotiation.As a new way to solve the compensation for ecological environmental damage,the consultation system provides a diversified guiding role for the relief of ecological environmental damage compensation,but there are still some problems in theoretical research and practice.This paper points out the existing problems of the consultation system by combing the development history of the ecological environment damage compensation consultation system and the status quo of the system.On the one hand,due to the dominant position of the administrative body in the consultation process and the public nature of the substantive objectives,the consultation system has a strong public law attribute,and the concepts of consultation and cooperation emphasized in the consultation process have added to the consultation system to some extent.There are some private law attributes,so there are two kinds of disputes about the legal attributes of the consultation system: “administrative consultation” and “civil consultation”.On the other hand,in the actual operation process of the consultation system,there are the following problems: because the multiple identities of the administrative organs tend to make the interests of the main bodies of the consultations unequal,resulting in unbalanced interests;the compensation rights holders lead the preliminary investigation,identification,preparation of repair programs,etc.,resulting in the scope of consultation It is limited to the repair plan,and most of the consultation process in the actual process evolves to recognize whether the compensation amount is recognized;the ecological environmental damage compensation lawsuit and the environmental public interest lawsuit overlap in the scope of application,and there is no clear applicable rule at the current stage,in the operation of the consultation system.It will lead to the convergence of consultation and environmental public interest litigation.In view of the above problems,this paper puts forward some targeted suggestions.First of all,we can learn from the two-stage theory of German law to divide the consultation system into two stages to take into account the elements of public law and private law,and then to clarify the deep mechanism of its use of private law to achieve the purpose of public law.Secondly,by establishing the main body of consultation,starting and terminating the consultation.Conditions,improvement of follow-up guarantees for consultation agreements,establishment of government accountability,etc.,to improve the procedural rules of consultation to ensure the equality of the main body of the consultation and balance the interests of all parties,once again in the assessment of ecological damage,ecological environment governance and restoration programs,scope and amount of compensation,etc.On the issue,the indemnity obligor is allowed to participate and raise objections.Finally,the eco-environmental damage compensation lawsuit and the ecological environment public interest litigation are clarified to ensure the smooth operation of the consultation system.