Legal Nature Analysis And Reconstruction Of The Consultation System Of Eco-environment Damage In China

As an innovative system in the field of environmental protection norms in China,the eco-environmental damage compensation system was first proposed in the pilot scheme of eco-environmental damage compensation system reform at the end of2015,in order to respond to the practical needs of improving the environmental rule of law and the requirements of the times for the construction of ecological civilization.As an important part of the system,the consultation procedure aims to solve the practical problem of "absence of ecological environment repairer" through open and inclusive consultation and extensive public participation,providing a co governance mode in addition to the existing environmental relief methods.The government played a role in the process of ecological environment governance,and the efficiency of solving ecological environment restoration problems improved in this policy implementation.In 2017,the formal promulgation of the "eco-environmental damage compensation system reform plan" made the ecological environment damage compensation system initially established nationwide.Although the reform plan has made further improvement on the consultation system on the basis of the summary of the pilot experience,there are no clear provisions on the legal nature,procedural rules and rights relief of the consultation system.As a result,the consultation system is faced with a series of practical problems in practice.It is reflected in the misplacement of system understanding and the shortsightedness of system construction,such as the imperfection of the third party participation mechanism,the malpractice of judicial confirmation system and so on.To clarify the legal attribute of consultation system is the cornerstone and premise for the study of consultation system.There are different opinions on the legal nature of consultation in academic circles,such as "civil consultation theory","administrative consultation theory","administrative factual act theory" and "two-stage structure theory".This paper starts with the administrative and contractual nature of the negotiation of ecological environment damage compensation,and makes a textual research on its nature.It holds that although the consultation on compensation for ecological and environmental damage uses the means of nonantagonistic equal consultation to reach an agreement,the negotiation between the administrative organ of environmental protection and the person causing environmental damage is not a civil legal relationship,as the right holder of compensation,the administrative subject's right to claim for ecological environment damage can't be disposed arbitrarily like civil right,which is essentially different from the traditional consultative administration of mandatory environmental governance.Based on the administrative nature of consultation system,this paper reflects on the practical status of consultation system,and then questions the reasonable legitimacy of the system of applying for judicial confirmation of consultation agreement stipulated in the reform plan.From the perspective of multi governance of ecological environment,this paper points out the absence of the right relief of the compensation obligee in the practice of the rule of law,and the lack of participation of the third party in the consultation process,trying to put forward some suggestions for reconstructing the consultation system of ecological environment damage compensation around the negotiation subject,procedure,relief,supervision.