On The Judicial Application Of Ecological Restoration Responsibility In Environmental Civil Public Interest Litigation

As an important form of relief for damaged ecological environment,ecological restoration responsibility has been attached great importance to by top-level designers in recent years.In May 2020,China issued its first Civil Code,which mentioned the responsibility of ecological restoration.In January2021,the newly revised Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Law to Hearing Environmental Civil Public Interest Litigation Cases,most of the amendments are aimed at restoring the ecological environment.In China’s environmental civil public interest litigation judicial practice,a large number of cases are also through the application of ecological restoration responsibility to relieve the damaged ecological environment.However,when ecological restoration liability is applied in environmental civil public interest litigation,there are still some problems in restoration fund management and restoration goal setting.These problems have seriously affected the value of ecological restoration responsibility in environmental civil public interest litigation.Therefore,it is necessary to conduct scientific and normative exploration on the judicial application of ecological restoration responsibility in environmental civil public interest litigation.In addition to the preface and conclusion,this paper is divided into four chapters:The first chapter of this paper discusses the basic theory of the judicial application of ecological restoration responsibility in environmental civil public interest litigation.To be specific,first of all,why this paper chooses "ecological restoration responsibility" to discuss and explain.Secondly,for the civil environmental public interest litigation for ecological restoration in liability for ecological restoration and other litigation are expounded,as well as the similarities and differences of responsibility for ecological restoration and compared with other lawsuit,civil environmental public interest litigation in the applicable unique aspects of the duty of ecological restoration is the research contents of this article,after research found that There are three unique aspects in the application of ecological restoration liability in environmental civil public interest litigation,namely,the normative basis,the restoration goal setting and the restoration fund management.Finally,the theoretical basis of applying ecological restoration liability in environmental civil public interest litigation is explained.The second chapter of this paper discusses the current situation of the judicial application of ecological restoration liability in environmental civil public interest litigation.Specifically,civil environmental public interest litigation for ecological restoration in responsibility,norms on the basis of respect,the main specification is based on the law of the People’s Republic of China tort liability law article 65 and article 15,article 21,2015,"the civil environmental public interest litigation judicial explanation to" article 18 and article 20,article 21,23,24;In terms of restoration goal setting,in judicial practice,"repair to the state and function before damage" as the restoration goal occupies the dominant position,while "baseline state" as the restoration goal is less.In terms of the management of restoration funds,there are five different management modes in judicial practice,such as turning over to the state Treasury and managing the ecological and environmental restoration funds by special account.The third chapter of this paper expounds the existing problems in the judicial application of ecological restoration responsibility in environmental civil public interest litigation,and analyzes the reasons for the existing problems.Specifically,in terms of the normative basis and the analysis of the reasons,the problem lies in the lack of legal basis for the application of ecological restoration responsibility at the level of substantive law,and there is a certain legitimacy crisis in the specific application.Now,even if the "civil code" in tort liability make up for the ecological restoration,and in 2015 the civil environmental public interest litigation judicial interpretation has also been a new "civil environmental public interest litigation judicial interpretation" in2021 to replace,but the specification on the basis of substantive law level legal basis is insufficient,still exist in judicial application problems of legitimacy crisis.The reason for the above problems lies in the judicial "precedence",while the legislative level does not agree that ecological restoration responsibility should be incorporated into the liability bearing mode of the general provisions of the Civil Code.In terms of restoration goal setting and cause analysis,when "restoration to the state and function before damage" is taken as the restoration goal,the maneuverability is not strong,and the restoration of the damaged ecological environment to the original state is sometimes not necessary in the future.The reason for the problems in the setting of the objective of restoration in judicial practice is the contradiction between the pursuit of justice at the legal level and the specific implementation at the judicial practice level,and the judicial practice pays too much attention to the objective of restoration stipulated by the legal text norms,while neglecting the need for specific transformation of the objective of restoration.For repair fund management problem and the reason analysis,the existence of excessive management mode,and each management mode has certain defects,resulting in the judicial practice to repair money management is the cause of the problem existing in the judicial practice of various patterns are the repair of public power as the leading fund management mode,and the disadvantages of public power dominant model itself is more,In addition,there has been no clear regulation on how to manage the restoration funds in environmental civil public interest litigation at the legislative level for a long time,which leads to the "excessive" exploration at the judicial practice level.The fourth chapter of this paper for the environmental civil public interest litigation ecological restoration liability in the specific application of the problems of the existing measures.To be specific,it is necessary to improve the legislation on ecological restoration responsibility first and write ecological restoration responsibility in Article 179 of the General Provisions of the Civil Code,so as to avoid the ecological restoration responsibility to carry out "action" by restoring the original state,so as to find a legitimate basis for the application of ecological restoration responsibility in environmental civil public interest litigation.Secondly,five factors should be taken into consideration to comprehensively determine the ecological restoration objectives,including environmental benchmark,technology,the opinions of the affected parties and the future use of the polluted or damaged ecological environment area.Finally,the restoration funds in environmental civil public interest litigation should be managed by the mode of private subject management and public subject supervision.