Study On Consultation System Of Compensation For Ecological Environment Damage

In 2015,the Pilot Program for the Reform of the Ecological and Environmental Damage Compensation System established a consultation system for ecological and environmental damage compensation and launched a pilot program in seven provinces and cities.Since then,China has promulgated the Program for the Reform of the Ecological and Environmental Damage Compensation System,Several Provisions of the Supreme People’s Court on the Trial of Ecological and Environmental Damage Compensation Cases(for Trial Implementation),and the Law on the Prevention and Control of Solid Waste Pollution,and Regulations on Management of Compensation for Ecological and Environmental Damage,which provide for the consultation system for ecological and environmental damage compensation at the policy,judicial interpretation,and legal levels,respectively.However,the consultation system still has many problems at the theoretical,institutional and practical levels.At the theoretical level,there are disagreements among academics on the nature of consultation and consultation agreements,resulting in the lack of a solid theoretical foundation for the institutional structure of consultation;at the institutional level,there are imperfections in the institutional structure of consultation in terms of substantive and procedural contents,including the lack of clarity in the subject and content of consultation,as well as the lack of clarity in the initiation,termination,frequency and duration of consultation;and the imperfection in the provisions of the consultation system.At the practical level,the consultation system is confusing in practice due to the shortcomings at the theoretical and institutional levels,including the imperfect judicial confirmation system of consultation agreements,the poor connection between consultation and other remedial procedures,and the unsound supervision mechanism.Currently,China is in the process of codifying the environmental code,and the consultation system,as an important part of the ecological and environmental damage compensation system,should be an important content of the ecological and environmental liability part of the environmental code.In view of this,this paper conducts a comprehensive study on the theory and institutional structure of consultation,and at the same time sorts out the practical situation of consultation system,takes the problems existing in the practice of consultation as an opportunity to propose the improvement plan of consultation by taking the codification of consultation system as an opportunity: at the theoretical level,it discerns the existing views on the nature of consultation in the academic circles,clarifies that the legal nature of consultation is determined by the double-class interpretation,and takes the legal nature of consultation On the theoretical level,it is clear that the legal nature of consultation agreement is a civil agreement based on the double-class interpretation.The system of consultation should be constructed from both substantive and procedural aspects,and the scope of subjects of consultation,the content of consultation,as well as the initiation,termination,frequency and duration of consultation should be refined.At the practical level,the judicial confirmation system of consultation agreement should clarify the review mode,period and jurisdictional court;the supervision of consultation should be improved in terms of subject,content and form;between consultation and administrative remedy,it should be clarified that administrative remedy is the primary remedy for ecological and environmental damage,and the principle of priority should be given to consultation to smooth the connection between consultation system and environmental civil public interest litigation.Finally,the codification of consultation should be discussed in the context of the codification of China’s environmental code,and the consultation system should be stipulated in the ecological and environmental responsibility part of the environmental code,and the provisions should be designed in terms of the principles,substantive and procedural provisions of consultation and related supporting mechanisms.