A Study On Legal Issues Concerning The Government’s Right To Claim For Ecological And Environmental Damage

The reform plan for the system of compensation for ecological environmental damage(hereinafter referred to as the reform plan)stipulates that the right to claim ecological environmental damage shall be exercised by the provincial and prefectural governments(including the district and county governments of municipalities directly under the central government)and their designated administrative departments;In areas where the national natural resources assets management system is relatively sound,the departments authorized by the authorized provincial government to uniformly exercise the ownership responsibility of the national natural resources assets may exercise the right to claim for ecological environment damage.It may also authorize the administrative department entrusted by the state council to act on behalf of the state council in exercising the functions and duties of natural resources assets owned by the whole people to exercise the right to claim for ecological and environmental damage.In terms of the way the government exercises the right to claim for ecological environmental damage,the reform plan stipulates that the government exercises the right to claim for ecological environmental damage through consultation or litigation,and sets basic rules such as "pre-consultation procedure","government consultation on its own initiative" and "consultation does not lead to litigation".In terms of monitoring government claims for ecological and environmental damage,the reform plan is based on the principles of "information disclosure" and "public participation",so as to realize the supervision of government’s right to claim for ecological and environmental damage.Is on behalf of the government,the principal of the exercise of the ecological environment damage resulting therefrom,the reform plan did not establish a clear "on behalf of the government to exercise the right mechanism"-government claims jurisdiction is unclear,the division of labor is not clear wait for a reason,which specific on behalf of the government of the ecological environment damage resulting therefrom government level,specific government department is not clear,easy to cause the government exercise the right of non-standard.In terms of the way the government exercises the right to claim for ecological environmental damage,after the occurrence of the ecological environmental damage compensation dispute,the government is faced with such problems as whether the consultation procedure must be started,whether the "consultation fails" must be transferred to the lawsuit,the connection between the consultation and the lawsuit,and the scope of application of the consultation.Relying on the system of "information disclosure" and the principle of "public participation" to supervise the government to exercise the right to claim for ecological and environmental damage may lead to unsatisfactory supervision effect--this kind of supervision lacks strong legal deterrent force,and is likely to make the purpose and function of this supervision method invalid.It is suggested that "district and county governments" should be taken as one of the subjects to exercise the right to claim for ecological environmental damage on behalf of the state,and the scope of specific implementation subjects to exercise the right to claim for ecological environmental damage on behalf of the government should be appropriately expanded,so as to timely repair the damaged ecological environment and provide "main supply" for the indemnity responsible person to fulfill the "indemnity responsibility".In addition,it may be considered to authorize special government departments to exercise the right to claim for ecological environment damage on behalf of the state--that is,departments in charge of ecological environment and resources,and strengthen the auxiliary role of state-owned assets management committee and natural resources department.The bankruptcy,death or disappearance of the person liable for compensation may lead to the government’s "failure to consult" or "unnecessary consultation".At this time,it should be considered to relieve the damaged ecological environment in the form of "ecological environment restoration fund".Limit number of "consultation",between the government and the compensation responsibility "for consultations," prevent "never long Cuo","repeated punishment",limiting the procuratorial organs,public welfare organizations,social environment for the government on a particular environmental events ongoing ecological environment damage fact launched a "claim","litigation claims" initiate civil environmental public interest litigation,the set preconditions "prosecution" and "inform obligation before litigation","consultation" government ecological environmental damage claim and to prevent the system of the "government ecological environment damage compensation lawsuit" failed and function failure.Finally,based on the principle of "public participation" and the system of "information disclosure",the government should establish a legal supervision mechanism with procuratorial organs as the main body in the exercise of ecological and environmental damage claims,so as to enhance the effectiveness of external mandatory supervision.At the same time,the government should strengthen the construction of "performance evaluation mechanism" and "reward and punishment mechanism for the right to claim compensation",so as to improve the enthusiasm of the specific implementation subjects who exercise the right to claim for ecological and environmental damage on behalf of the government,and improve the effectiveness of the internal supervision mechanism.