| Soil is the foundation of ecological factors,and it is necessary to the human production and living activities.The composition of the soil contamination is complex and the pollution has been deposited for a long time.Repair activities lag extremely and are difficult to implement,as well as our country urban development and enterprise restructuring have been produced much contamination sites.All of these shows the soil pollution control is imminent.The Law of the People’s Republic of China on the Prevention and Control of Soil Pollution(hereinafter referred to as the Law on the Prevention and Control of Soil Pollution)points out a new road for the prevention and control of soil pollution--status responsibility.Status responsibility emphasizes the characteristics of possession and control of things,and links the possessor and user of land with soil pollution control,so as to locate the responsible person of soil pollution control,and then quickly and effectively carry out soil pollution control activities.Retrieval based on laws and regulations found that the Law on the Prevention and Control of Soil Pollution in the cognizance of status responsibility exists the expression of fuzzy,and it is difficult to find policies to refine or detailed rules from other relevant laws,regulations.So,it is hard to explain all the elements with the actual needs of the contradiction.Based on this,no matter the application startup and the scope of the subject or body burden of responsibility scope are lack of maneuverability,which also leads to due to a lack of clear provisions in the administrative law enforcement fault occurring in the course of excessive lazy political,discretion or power rent-seeking and other negative situation.Therefore,based on Article 45 of the Law on the Prevention and Control of Soil Pollution,this paper will discuss the identification rules of the subject of status responsibility from the aspects of the premise of identification of responsibility,the scope of the subject of responsibility,the limit of responsibility,etc.,as follows:The first part expounds the concept of status responsibility,the objective elements and subjective elements of status responsibility,causality and inheriting problems.At the same time in the basic theory of environmental law and the country’s institutional basis to determine the status responsibility is introduced into the theoretical foundation of Law on the Prevention and Control of the Soil Pollution,through the characteristics of soil pollution and solve the problems existing in the soil pollution prevention and control of past emphasized the necessity and particularity of status responsibility to introduce,through the above illustrates the concept of status responsibility and characteristics and the concept of status responsibility for soil pollution prevention activities,through the above part to lay a theoretical basis for analysis and make up for the rest of the article;The second part through combing the relevant rules of the status responsibility identification,first expounded the "soil pollution prevention law" article45 of the elements of meaning,secondly sort out other laws and regulations or file to refine the provisions of the status responsibility identification has been looking for the difference,based on the purpose of a complete legal system,by other laws and regulations in the "soil pollution prevention law" article 45 of each factor;The third part based on the "soil pollution prevention law" article 45,the analysis of "cannot be determined" in article 45 "land use" "to" legal expression of deficiencies,such as insufficient and combining our country’s land system,land use present situation analysis,finally for the increase of "liability reduction" is analyzed,the clarity of the emphasis on reason rather than inferring,at the same time analyzed the "liability reduction loss brought about by the" logic problem;The fourth part finds out the particularity in the identification of status responsibility by sorting out the foreign legislation and judicial practice,and summarizes and draws the characteristics and advantages of the soil pollution prevention and control experience of Germany,Japan and the United States in combination with the characteristics of China’s local system,so as to provide reference for the following revision opinions;The fifth part combine the characteristics of status responsibility,our country’s social basis and institutional basis,the analysis of status responsibility identification of the components,outside the soil pollution status responsibility identification rules and related revelation,about 45 and determination of status responsibility rule refinement,adjustment,combined with various views at the same time,after the analysis of the different views,learn from experience,from different angles of status responsibility in the Law on the Prevention and Control of Soil Pollution related improving suggestions out system.Through the above analysis process,it aims to establish a set of active,efficient and operable status responsibility identification process in soil pollution prevention and control activities,and refine each link in the process,in order to achieve the environmental purpose of soil pollution prevention and control. |
