Dilemma And Path Of Judicial Confirmation Of Eco-environmental Damage Compensation Agreement

The consultation system of eco-environmental damage compensation is a new way to deal with the lack of traditional relief means,and has become an important way to realize the liability of eco-environmental damage compensation.However,the effectiveness of compensation agreement reached through consultation is lack of rigidity,and compensation obligee lacks enforcement in the face of possible performance risks,so obligee has to resort to the court in the form of litigation,which leads to a waste of resources and delays the repair time of the damaged ecological environment.The convenient and efficient judicial confirmation system can give the compensation agreement the force of enforcement and improve the efficiency of enforcement.However,the practical results of the system did not achieve the expected results.Therefore,the method of combining analysis,comparison and theory with practice is used to demonstrate that this is the result of many factors.The first part is the basic theory and current situation.The first is the prerequisite cognition of judicial confirmation of the application of compensation agreement.Compensation agreement has the features of "ecological public welfare",while judicial confirmation has the characteristics of "private interest".Under the background of civil law system,public law and private law have strict boundaries.However,with the development of social economy,the boundary between them has gradually become blurred.Countries try to reform the traditional litigation rules,which makes it possible for compensation agreement to apply judicial confirmation.The second is that the compensation agreement is characterized as a civil act and the source of claim right negotiated with the ownership of natural resources is the basis for the judicial confirmation of compensation agreement.The third is the reason for its application of judicial confirmation is the normative procedural guarantee provided by the consensual way and consultation procedure.Finally,through the sorting and analysis of cases,it is found that there are few applicable cases and chaotic procedures in practice.The second part is the dilemma.Firstly,it is the lack of legislation.The characteristics of compensation agreement determine that it can’ t directly apply the relevant provisions of judicial confirmation,and faces the problem of insufficient legal basis;secondly,it faces the confusion of procedure application.Special procedures can’ t be applied to hearing procedures and people’s jurors,and judicial confirmation should be followed,but their application can better achieve the purpose of protecting the damaged ecological environment.Thirdly,the claim and supervision functions enjoyed by the compensation obligee affect the application of judicial confirmation,economic function and environmental protection function,reduce the quality of compensation agreement and increase the difficulty of court review.Finally,the establishment of ordinary courts and non professional judges is not conducive to the review of professional and complex compensation agreements.The third part analyzes the reasons for the dilemma.First is that the legislature does not agree to expand the scope of judicial confirmation,resulting in insufficient legislation.The second is the lack of practical test and the recognition of theoretical scholars and practitioners.It has not experienced the process from point to area and then to the whole country.It has risen to the height of top-level design under the condition of uncertain social practice effect and unclear social acceptance and recognition.At the last,civil act is the premise of judicial confirmation,and the dispute over the nature of compensation agreement affects the application of judicial confirmation.The fourth part is The way out.Firstly,it needs to improve the legislative provisions by stages,first make special provisions on them by judicial interpretation and policy provisions and then make exceptions in laws such as the civil procedure law.Secondly,it is to improve the specific program setting.Thirdly,the compensation obligee’s claim and supervision functions are entrusted to different departments to eliminate the administrative attribute of the agreement,and build an internal self-supervision and external supervision system to strengthen supervision.Finally,continue to carry out practice,find the legitimacy basis for the system,and increase social acceptance and recognition.