Study On The System Of The Ecological Environment Damage Compensation Litigation Filed By The Provincial Government

The“Pilot Program of Eco-environmental Damage Compensation System Reform”firstly firstly established the system of the eco-environment damage compensation litigation filed by the provincial government on the aspect of eco-environmental damage remedy itself.However,it took only 3 months from the central authorities put forward the system design to finally published the official document.So it remains to be turned over weather the preparation work of the system has been prepared well.This paper demonstrates the immanent rationality of the system and its functional orientation from the aspect of studying the theoretical basis of the system and its related systems’ theories,and then examines the realistic predicament that the authorized litigation,which is also the core of the system and the source of provincial government’s right of action,faces in practice.Meanwhile,this paper learns lots of legislative experience from the foreign examples of eco-environmental damage compensation litigation.At last,it proposes some coping strategies and system suggestions for the standardization and improvement of the eco-environmental damage compensation litigation system in China.This paper firstly starts from an overview of the system,analyzing the connotation and the extension of basic conception relating to eco-environmental damage and pointing out three characteristics of eco-environment damage.Then,it demonstrates the immanent rationality of the system from three different aspects,respectively are the ethical bases of sustainable development concept,the economic foundation of common resources and externality,and the legal foundation of proprietary remedy and damage liability principle.Besides,it makes a comparative analysis among other three highly relevant systems and makes their immanent mechanism as well as functional orientation clear.Secondly,this paper examines the justifying predicament that authorized litigation,which also serves as the core of the eco-environmental damage compensation system and the source of provincial government’s right of action,faces in practice based on the current laws of China and basic theories of law.These justifying difficulties show as a breach of the principle of law reservation in legislation law,the relevant principles between proprietorship and its remedy,and the correspondence between litigation claims and the object of litigation.On the other hand,this paper disproves some scholars’ idea that justifying the authorized litigation’s legality on base of discretional litigation substitute theory.Thirdly,this paper studies the foreign experience of eco-environmental damage compensation litigation systems to summarize experience for the standardization and improvement of the eco-environmental damage compensation litigation system in China.Finally,on the basis of learning from the abroad experience,this paper proposes that legislating a single law to establish and standardize the eco-environmental damage compensation litigation system,introducing the social compensation system and properly coordinating the relationship between the ecological environment damage compensation litigation and environmental public interest litigation would be the optimal route selection for breaking the legal dilemma of authorized litigation and standardizing the eco-environmental damage compensation litigation system.And it puts forward some specific system design suggestions on the legislation of the single law on the basis of the analysis of the necessity of legislation,such as the subject and foundation of claim,the responsible person and the constitution of the liability and the plea reasons,the appraisal of eco-environmental damage,the procedure of the compensation negotiation,the rules of compensation litigation,the punitive compensation and the management of compensation fund.