| General Secretary Xi Jinping attaches great importance to the construction of marine ecological civilization and proposes to strengthen the prevention and control of marine environmental pollution and protect the marine ecological environment.The marine ecological environment damage compensation system plays an important role in protecting the marine ecological environment.Compared with the rapid progress of the reform of the ecological environment damage compensation system,the development of China’s marine ecological environment damage compensation system has been slow.China’s land-based sources of pollution,ship pollution,oil platform pollution constantly,the marine ecological environment has caused serious pol ution and ecological damage.Although the Reform Program of Ecological and Environmental Damage Compensation System was promulgated and implemented,it does not apply to marine ecological and environmental damage compensation.Marine ecological environment damage compensation has its own special characteristics,marine ecological environment damage compensation system is not perfect problem is still relatively prominent,compared with the requirements of ecological civilization there is still a large gap,mainly in the scope of compensation confusion,the main body of responsibility is vague,the responsibility of a single way and so on.These shortcomings show that it is still necessary to strengthen the construction of marine ecological environment damage compensation system under the guidance of ecological civilization.First of all,in terms of the scope of compensation,China’s law currently does not have the concept of"the scope of compensation for damage to the marine ecological environment",and the closest thing to it is the description of "the scope of compensation for damage to marine natural resources and ecological environment" in the "Provisions on Several Issues Concerning the Trial of Marine Natural Resources and Ecological Environment Damage Dispute Cases".The scope of compensation for damage to marine natural resources and ecological environment".This expression is basically consistent with the connotation of the scope of compensation for damage to marine ecological environment to be constructed in this article.After the promulgation of the judicial interpretation,the issue of the scope of compensation for damage to the marine ecological environment has still not been resolved.Due to the historical situation of "nine dragons ruling the sea",the scope of compensation for damage to the marine ecological environment in China has multi-departmental legislation,judicial interpretation,departmental regulations and other provisions are inconsistent,and judicial practice also has the problem of inconsistent trials.Therefore,the scope of compensation for damage to the marine ecological environment has not been solved yet.Secondly,in the subject of responsibility,China’s laws and regulations on ship collision oil spill damage to the marine ecological environment of the subject of responsibility varies,and more abstract,the parties understand different,in practice there are often difficult to identify the problem.Many cases in judicial practice are not consistent,such as the case of "Duffy Florida" and "Zhoushan" oil spill in Shanghai waters in 2013.The two vessels should be jointly liable according to the proportion of collision responsibility.The academic and judicial circles have commented differently on this judgment.Therefore,China’s marine ecological environment damage compensation liability subject issue has not been fully resolved.Again,in terms of liability,although China’s law in the Civil Code and the Supreme People’s Court on the trial of ecological and environmental damage compensation cases(for trial implementation)clearly restoration of the ecological environment this way,but the judicial interpretation stressed that it does not apply to marine ecological and environmental damage compensation.In other words,the liability for damage to the marine ecological environment does not include "repairing the marine ecological environment",and there is a problem of how to apply the new general law and the old special law to the application of the Civil Code,and the current legal provisions cannot meet the real needs.In addition to the cases of oil pollution by collision between the Zorro and Ellington in December 2018 in Jiaxing,Zhejiang,the dumping of garbage in the sea channel of Zhongshan Municipality in July 2016,and the dumping of garbage in the sea channel of Zhongshan Municipality in May 2021.In addition to the case of "marine ecological restoration costs"awarded in the case of illegal dumping of waste by the vessel "Jinhua 118" in the sea near Liuwudian,Fujian,there are few cases on "restoration of marine ecological environment" in China’s existing judicial practice."The judicial practice of "marine ecological restoration costs" cannot be equated with "restoration of marine ecological environment".In other words,the legal system on the liability of marine ecological environment damage in China cannot keep up with the development of practice.This article will start from the following parts.The first part analyzes the impact of ecological civilization on China’s marine ecological environment damage compensation system.This part first makes a basic definition of the marine ecological environment damage compensation system,including the conceptual analysis of marine ecological environment damage compensation,the special nature of marine ecological environment damage compensation,and the nature of marine ecological environment damage compensation;the history of marine ecological environment damage compensation at home and abroad is sorted out.Following that,it clarifies the core connotation of ecological civilization and points out the requirements for improving the compensation system of marine ecological environment damage in the perspective of ecological civilization,including the general requirements and specific requirements.The second part mainly elaborates the current situation and problems of the compensation system for damage to marine ecological environment.This part firstly analyzes the current situation of China’s marine ecological environment damage compensation system,including the main content and basic features;secondly,it analyzes that the current marine ecological environment damage compensation system in China is difficult to meet the needs of ecological civilization construction,mainly including three aspects: the scope of compensation is relatively confusing,the main body of responsibility is relatively vague and the way of responsibility is relatively single.After that,the causes of the above problems are analyzed,including the fact that the system is based on anthropocentric ethics and morality,the lack of systematic and holistic ecological values,and the consideration of compensation for damage to the marine ecological environment only from the perspective of private law.The third part mainly studies the rationale for the improvement of China’s marine ecological and environmental damage compensation system in the context of ecological civilization.This part firstly argues the necessity of improving the damage compensation system of marine ecological environment from three aspects: improving the damage compensation system,protecting marine ecological environment,and promoting international common governance of the ocean;then it argues the policy and legal basis for improving the damage compensation system of marine ecological environment in China,the damage compensation system of marine ecological environment is an important part of the ecological civilization system,ecological civilization will promote the damage compensation system of marine ecological environment The feasibility of improving the compensation system for damage to the marine ecological environment has been argued from four aspects,including the reference provided by the Reform Program of the Ecological Environment Damage Compensation System;then the basic theories of improving the compensation system for damage to the marine ecological environment have been proposed,including the theory of ecological justice,the theory of obligation and the theory of comprehensive ecosystem approach;final y the value and significance of improving the compensation system for damage to the marine ecological environment have been elaborated.Finally,the value and significance of improving the compensation system for damage to the marine ecological environment are explained,including the benefits of constructing a complete legal system for compensation for damage to the marine ecological environment,improving the ability to compensate for damage caused by major pollution accidents at sea,and better safeguarding national maritime rights and interests.Part IV examines the basic ideas of improving the compensation system for damage to marine ecological environment in the context of ecological civilization.This part first analyzes the guiding ideology that should be adopted to improve the marine ecological environment damage compensation system,including the integration of land-based pollution and sea pollution,and the realization of marine ecological green development;then analyzes the basic principles of improving the marine ecological environment damage compensation system,including the principle of liability for marine ecological environment damage,the principle of comprehensive compensation for marine ecological environment damage,and the principle of restoration of marine ecological environment.It also analyzes the legitimacy of the state ownership of marine natural resources as the basis of rights,and analyzes the relationship between the state ownership of natural resources and ecological environmental damage in terms of its object,content and subject structure.The fifth part mainly studies the main contents of the improvement of the compensation system for damage to marine ecological environment under the perspective of ecological civilization.This part studies the improvement of the compensation system for damage to marine ecological environment from the aspects of the scope of compensation for damage to marine ecological environment,the main body of responsibility,the way of responsibility,and the realization mechanism.In terms of the scope of compensation for damage to marine ecological environment,the current legal provisions on the scope of compensation for damage to marine ecological environment are analyzed from two dimensions: domestic legal provisions and the provisions of international conventions;the judicial practice on the scope of compensation for damage to marine ecological environment is discussed and the problems in judicial practice and legal provisions are analyzed;finally,the study on how to unify the scope of compensation for damage to marine ecological environment is conducted,including the use of Final y,the scope of compensation for damage to marine ecology and environment is studied,including the establishment of the scope of compensation for damage to marine ecology and environment on the theoretical basis of state ownership of natural resources and the conceptualization of the contingent content of the scope of compensation for damage to marine ecology and environment.In the aspect of the main body of liability,the jurisprudential basis of the main body of liability is studied,including the polluter pays theory and the benefit sharing theory;the current legal provisions on the main body of liability for marine ecological environmental damage compensation;the problems in judicial practice of the main body of liability for marine ecological environmental damage compensation are analyzed;finally,suggestions are made for the improvement of the main body of liability for marine ecological environmental damage compensation.In terms of the liability mode of compensation for damage to marine ecological environment,the legal provisions of the liability mode of compensation for damage to marine ecological environment and the judicial practice of the liability mode of compensation for damage to marine ecological environment are analyzed from two dimensions:domestic laws and international conventions;the judicial practice of the liability mode of compensation for damage to marine ecological environment,including the judicial practice of restoration of original state,restoration of marine ecological environment,alternative restoration,compensation for loss,etc.;final y,suggestions are made on how to improve the liability mode of compensation for damage to marine ecological environment.Final y,we propose suggestions on how to improve the liability mode of compensation for damage to marine ecological environment,suggesting that the concept of restoration of marine ecological environment should be given priority,abandoning restoration of original state,alternative restoration second and compensation for damages should be supplemented.In addition to improving the above three main aspects,it is necessary to study how to achieve the above mechanism.We should establish a consultation mechanism for compensation of marine ecological and environmental damages,a mechanism for identification of marine ecological and environmental damages,and a mechanism for the improvement of the connection between marine ecological and environmental damages litigation and marine environmental public interest litigation.In the establishment of the consultation mechanism for compensation for damage to marine ecology and environment,the consultation mechanism has not been established in the field of compensation for damage to marine ecology and environment,and the Reform Program clearly proposes that consultation should be a prior procedure.It is necessary to draw on the provisions of the Reform Program to establish the consultation mechanism for marine ecological and environmental damage as soon as possible.In the identification of damage to the marine ecological environment,we analyze the problems that exist,including the small number of official identification institutions,the quality of identification personnel to be improved,and the excessive cost of identification,and make suggestions to improve the identification of damage to the marine environment in China in terms of introducing market mechanisms,improving the quality of identification,and reducing the cost of identification.In the marine ecological environment damage compensation litigation mechanism,marine ecological environment damage compensation litigation and ecological environment damage compensation litigation have a high degree of homogeneity,and should draw on the provisions of the Supreme People’s Court on the trial of ecological environment damage compensation cases(for trial),and establish a marine ecological environment damage compensation litigation mechanism,mainly marine ecological environment damage litigation,supplemented by marine environmental public interest litigation.Marine environmental supervision and management departments to bring ecological environmental damage compensation lawsuits in the subordinate priority.In the marine ecological environmental damage compensation litigation for various reasons did not start,it is necessary to connect through the marine environmental public interest litigation,as its necessary complement. |
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