Research On The Right Of Government Claim For Damage To Ecological Environment

In recent years,frequent environmental pollution and ecological damage events can be seen,China’s existing civil,administrative,criminal and public interest litigation relief system has a relief vacancy for the self-damage to the ecological environment.In view of this,the compensation system of ecological environmental damage solves the problem of the absence of the subject of claim by establishing the government’s right of claim,and resolves the dilemma that the damage to the ecological environment itself cannot be remedied because of the "tragedy of the Commons".However,there are still many problems in the implementation of the program,which require us to reflect on the theoretical level.First of all,the theoretical basis of government claim right should be defined accurately.Although the theory of ownership of natural resources is a common official theory,the identity of the subject of public right conflicts with the thinking of traditional civil law,which makes the theory have many unsatisfactory points.We need to re-examine the government’s claim power from the height of the constitution and legal order.The theory of state environmental management function holds that the government’s right to claim originates from the state’s environmental protection obligation in the constitution,which can support the government’s right to claim more fully and is less questioned.Based on this theory,the essence of the government claim right in public law is extended,and it is characterized by the combination of public and private law because of its use of the form of private law,and it is highly consistent with the theory of private administrative law.Secondly,the proposal of the government’s right of claim also brings the question of the mismatch between the executive power and the judicial power,which needs to distinguish the government’s right of claim from another important power of the administrative organs,namely the power of administrative supervision.From the analysis of their respective advantages and disadvantages,it can be seen that the two powers have advantages that each other does not have,and can achieve a certain degree of complementarity in terms of advantages and disadvantages,presenting a "rigid and soft" relationship.In the relief work of ecological environmental damage,the administrative power plays a more important role than the judicial power,so the administrative supervision power should take precedence over the government’s right to claim compensation,that is,when the problem cannot be solved by exhausted administrative supervision means,the government can make up for the insufficiency of administrative law enforcement by means of claim.Based on the aforementioned theoretical basis of national environmental management functions,this paper defines the nature of consultation as an administrative agreement from the perspective of consultative administration,and guarantees the performance of the consultation agreement by administrative enforcement.According to the foregoing conclusion that the executive power takes precedence over the judicial power,the compensation negotiation of the administrative nature of negotiation should take precedence over the compensation litigation.The newly promulgated Civil Code should not be used as the basis of the government’s right of claim.This paper argues that the problem of its right of claim should be solved by special legislation of environmental law.As for the relationship between compensation litigation and public interest litigation,procuratorial organs should exert their legal supervision duties,urge administrative organs to perform their duties actively by means of procuratorial suggestions and administrative public interest litigation,and revise and straightify the relationship between judicial power and administrative power.The social organization should be positioned as a supplementary force to protect the interests of the ecological environment,allowing it to mobilize the public authority to hold the doer accountable through direct and indirect ways.If the supervision fails,the procuratorial organs and social organizations can directly file environmental civil public interest litigation to realize the relief of the damage to the ecological environment.