| Since the 1970s,the social regulation system of the modern western countries has transformed from the social group regulation in welfare state to the social regulation in risk society.As a critical tool during the transformation of regulation system,the ecological environment management by legal means has been widely applied in the juridical practice of the responsibility investigation in ecological and environmental damage.As of now,the socioeconomic structure,cultural type and values of China have gone through a drastic change.In the historical background of reinforcement of ecological civilization construction,it is objectively indispensable to renovate and reform the ecological and environmental management system and mechanism.Therefore,the legalization of the ecological and environmental damage compensation system has become an inevitable question of reality and an arduous task in the transformation development of China.The ecological and environmental damage compensation system reform has been carried out at some pilot areas since 2015 and put into nationwide practice since 2017.The damage compensation system has been preliminarily set up to fulfill the demands laid out in the Third Plenary Session of the Party’s 18 th National Congress,namely to strictly implement the compensation system upon the party liable for causing ecological and environmental damage.The ecological and environmental damage compensation system is also specifically regulated in terms of working principles,scope of application,extent of compensation,subject of compensation,compensation negotiation,procedure rules,evaluation and compensation funds management.However,the inadequate preparation for the policy has disclosed some problems during the implementation of the system,such as the idealistic theoretical basis and the realistic right of claim basis on which the provincial and municipal governments file for the ecological and environmental damage compensation litigation;the dilemma for the State Council to endow the provincial and municipal governments with the legitimacy justification of right of action by means of authorized litigation;the elaboration and optimization of internal rules in the compensation litigation system and their coordination with external associated systems such as environmental nonprofit litigation;as well as a number of theories and practical shackles to be solved.This paper aims to interpret and analyze the theoretical sources and corresponding regulations of the positive law of the ecological and environmental damage compensation litigation system.Based on the review of local practice results of the system,it scrutinizes the problems exposed during the execution of the system so as to sort out the optimization of internal rules and coordination with external systems in a theoretical approach and provide solutions accordingly.The first part is the introduction.On the basis of a review of the background of the ecological and environmental damage compensation system,the paper points out that the Reform Plan fails to manifestly enhance the incremental design of the substantial norms in close association with the ecological and environmental damage compensation litigation system construction,including the basis of right of action,condition of action,object of action,elements of liability and ground for defense,as well as the procedural norms,including the pretrial proceedings,judicial proceedings and executive proceedings.Although it has stressed the problem of coordination between the ecological and environmental damage compensation system and the environmental nonprofit litigation,the problem is merely exposed in the pilot and still to be solved in follow-up practice.Besides,the paper has reviewed the current research situation of home and abroad on the ecological and environmental damage compensation litigation system and introduced the research purport,research method and innovations of the dissertation.It turns out that current research cannot delimit the idealistic administrative attributes of the negotiation and litigation in the ecological and environmental damage compensation,thereby unable to provide proper theoretical support or basis for right of claim to the authorized provincial and municipal governments filing for the ecological and environmental damage compensation litigation.Furthermore,the research is obviously insufficient in terms of the internal optimization and external coordination of the system.The second part is the overview of the ecological and environmental damage compensation litigation system.Through the analysis of the connotation and denotation of ecological and environmental damage,this part has summarized the six general characteristics of ecological and environmental damage,including the publicness of results,diversity of subjects,accumulation of courses,universality of consequences,technicality of delimitation and repair,and limitation of remedy.Next,as a link in the holistic ecological and environmental damage accountability system,the ecological and environmental damage compensation litigation system has developed in three phases,namely “environmental infringement litigation”,“environmental nonprofit litigation” and “ecological and environmental damage compensation litigation”.On such basis,the paper explicates the unique advantages of it in contrast with environmental nonprofit litigation in terms of subject,specialty and cost.In addition,the paper has compared the ecological and environmental damage compensation litigation system with other analogous systems,such as the environmental administrative nonprofit litigation,environmental civil nonprofit litigation,environmental infringement litigation,marine ecological and environmental damage compensation litigation,destroying environmental resources protection crime system and party and government leading cadres ecological and environmental damage accountability system.By the contrast and deconstruction of associated systems in terms of system function,subject of implementation,procedural norms and results,the paper aims to sort out the distinctions of relevant systems in providing legal remedy for the ecological and environmental damage,and to lay a foundation for solving the problem of coordination between the environmental nonprofit litigation and ecological and environmental damage compensation litigation system in practice,and finding an idealistic path.The third part is the theoretical basis of the ecological and environmental damage compensation litigation system.In this part,the paper has tapped into five theories to study the theoretical basis of law for administrative authority to file for the ecological and environmental damage compensation litigation,and argue the source of legitimacy of it.The five theories are the theory of the state environmental protection obligations,the theory of the public trust and the state ownership of natural resources,the theory of the litigation trust and the qualification of litigant,the two-level theory of administrative law and the theory of free choice of administrative form.The paper has stressed that the theory of the state environmental protection obligations should serve as the theoretical basis on the idealistic level for the ecological and environmental damage compensation litigation.However,since China’s positive law system lacks the administrative litigation structure of “officials suing civilians”,we have to compromise and render the state ownership of natural resources as the basis for right of claim on the realistic level.The theory of the litigation trust and the qualification of litigant can provide the provincial and municipal governments with theoretical support in the right of action by means of authorized litigation as stipulated in the Reform Plan.And the two-level theory of administrative law and the theory of free choice of administrative form can reasonably explain the man-made separation of administrative negotiation and civil litigation in the ecological and environmental damage compensation under the current legal framework.The fourth part is the practice investigation of the ecological and environmental damage compensation litigation system.In this part,we have investigated the ecological and environmental damage compensation litigation cases since the implementation of the Pilot Plan and the Reform Plan.With several typical cases as the principal targets of analysis,we come to the conclusion that negotiation cases are much more than litigation cases in the practice of system.There are other traits such as single case clue sources,high configuration of the jurisdiction level and the collegiate bench,diversified reconciliation methods in associated litigation,importance of expert assessor,tendency of taking liabilities by currency,and open and transparent hearing and trial.By virtue of these cases,we analyze the problems exposed during the implementation of the system,including discrepancy in the cause of action,obscurity in case nature,failure in coordination of overlapping litigations,questionable evidence conversion effect in administrative law enforcement,doubtful evaluation result effect,inadequate execution of judgment and multiple methods of taking liabilities.The fifth part is about the internal optimization of the ecological and environmental harm compensation litigation system.After sorting out the idealistic theoretical basis of the ecological and environmental harm compensation litigation and the realistic basis for right of claim,and presenting the domestic practice and foreign experience,the paper puts forward that,in the revision of the Environmental Protection Act,it is advisable for China to apply the theoretical guideline of fulfilling the obligations of environmental protection and playing the functions of environmental protection supervision and management with administrative authority as the representative of the state;to explicit the basis for right of claim of administrative authority filing for the ecological and environmental harm compensation litigation;and to make legitimate response to critical issues such as the pre-trial proceedings of compensation negotiation,the requirements of prosecution and contentious jurisdiction,basis for right of claim,constitutive requirements of liability and ground for defense,evaluation,testification and certification liability,punitive damages,methods of taking social responsibilities and enforcement of the judgment;and meanwhile,to set up and optimize supporting systems including the compensation funds management,environmental liability insurance and environmental mutual fund so as to improve the internal work flow and performance of the ecological and environmental harm compensation litigation system.The sixth part is to study the coordination between the ecological and environmental harm compensation litigation system and associated systems.To understand the coordination between litigation and negotiation of the ecological and environmental harm compensation system,we should first explicit that the negotiation is based on the theory of the state environmental protection obligations,which is attributed to the innovation of administrative authority in the fulfillment of ecological and environmental supervision and management functions.Therefore,it is of administrative nature;second,we should conclude specific scenarios of disagreement and failure in negotiation,and regulate the follow-up litigation and execution.As for its coordination with the environmental civil nonprofit litigation,we should determine the syn-position in litigation of them both as per the object of right.The coordination between the ecological and environmental harm compensation litigation and the environmental administrative nonprofit litigation should be ramped up by improving the transfer of case clues and evidence sharing system between the procuratorial organ and the administrative authority,as well as the pre-trial procuratorial advisory system of the environmental administrative nonprofit litigation.To well coordinate the ecological and environmental compensation litigation with the marine ecological and environmental harm compensation litigation,we should understand the applicable situation of the Environmental Protection Act and the Marine Environmental Protection Law as they are the general law and the special law respectively.Besides,we should balance the assignment of responsibility of the two departments in the background of administrative institutional reform and explicate the authority boundary of relevant department in the ecological and environmental harm compensation.The seventh part is the conclusion.The structural reform of ecological civilization is critical to promotion of the state governance performance and the modernity of the system.And one of the most important approaches to propel the structural reform of ecological civilization is to pace up the set-up of a scientific and full-fledged ecological and environmental harm compensation litigation system.It is noteworthy that there has emerged a series of problems and defects during the four-year reform of the ecological and environmental harm compensation litigation system,including the mix use of theoretical basis and basis for right of claim,the dilemma of legitimacy justification of authorized litigation,inadequacy in the design of internal rules of the system and lack of coordination with external associated systems.The ecological and environmental harm compensation litigation system and other associated litigations in the realm of environment are all crucial components in China’s environmental judicial system.Therefore,from the perspective of the system theory,apart from carrying out the revision of the Environmental Protection Act,the Civil Litigation Law and corresponding special laws,we should also keep up the formulation and update of relevant judicial interpretation and rules so as to optimize the supporting systems and measures accordingly and contribute to the construction of the ecological and environmental harm compensation litigation system with Chinese characteristics. |
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