On Compulsory Enforcement In Chinese Environmental Administration: Problems And Strategies

As one type of Administrative Enforcement, Environmental Administrative Compulsory Enforcement primarily refers to the following situation: when the Administrative Relative Person refuse to perform their obligations after administrative authorities made a decision according to law requiring them to fulfill their obligations, in order to ensure the result of protecting the environment and natural resources can be reached, or to maintain the ecological balance or harmony between human beings and the nature, the environmental administrative authorities take compulsory measures to force the Administrative Relative Person who refuse to fulfill their obligations fulfill their obligations or reach the same status as fulfill their obligations. Because of the special nature of the field of the environment, Environmental Compulsory Enforcement has its own special characteristics like: the influence of precautionary principle, the specialty of pursuit of the value, and the complexity of the relationship among different interests. Under current legal system, the Environmental Administrative Compulsory Enforcement Authority belongs to the court according to the power distribution model; the environmental administrative authorities don't have any this authority. This model refuses to give the environmental administrative authorities any compulsory enforcement authority for the reason that there is a possibility the authorities may abuse the power, but this reason does not stand. This model failed to take the technological and professional issues into consideration in environmental administrative field. After a study of the environmental enforcement legal system, we find out that, under the administrative authorities -led model, it's very helpful to maintain the integrity of administrative power as well as to promote efficiency and effectiveness of administrative law enforcement. Under the Judiciary-led model, they do have a system background like judiciary independence, judicial justice and judicial efficiency, which we don't have in China. And further more, the environmental administrative agency do have more or less Environmental Administrative Compulsory Enforcement Authority in both models. However, the current system which give court all the enforcement authority, cannot clarify the nature of the enforcement, cannot guarantee the efficiency of enforcement and cannot protect citizens'legal rights in all aspects such as the subject who carry out the enforcement and its authority, the manners and means, the procedure and remedy of enforcement.In conclusion, the proper system design for China's Environmental Administrative Compulsory Enforcement system should include the following components: under direction of the principles of the protection of basic human rights, the principle of proportionality, the principle of trust protection, the principle of openness, justice and efficiency. The environmental administrative agency should be given adequate and comprehensive Environmental Administrative Compulsory Enforcement Authority. Court can only intervene under two circumstances: first, the need to conduct compulsory enforcement against the freedom of the Administrative Relative Person; second, the need to conduct an irreversible compulsory enforcement against the major property of the Administrative Relative Person. To make sure the environmental administrative agency can use the administrative compulsory enforcement authority effectively, we must ensure that the necessary personnel, funds, equipment, etc. are all available. Meanwhile the Responsibility system of Environmental Administrative Enforcement must be established, there should be well designed procedures, and must encourage public participation and supervision to help the environmental administrative authorities to do their job under the law, and therefore ensure the efficiency and effectiveness of environmental law enforcement.