Judicial Application Of Alternative Restoration Methods In The Responsibility Of Ecological Environment Restoration

The problem of ecological damage is not only a problem faced by countries all over the world,but also an issue to which China attaches great importance.In the context of building a "beautiful China",in the field of environmental legislation,the Eco-environmental Code is in the process of being formulated,and in the field of environmental justice,China has explored many solutions to the problem of environmental damage.Due to the diverse circumstances of ecological damage,the high cost of repair,and the fact that not all environmental damage can be repaired,it is difficult to cope with the complex environmental problems of today by relying solely on the remedies of the previous tort liability law,and the alternative liability for ecological restoration has emerged.However,from the existing regulations,the way of undertaking is yet to be improved.Alternative restoration is a form of liability based on the responsibility for ecological restoration,which means that when the environment cannot be repaired or fully repaired,the court will decide the responsible person to take remedial measures for the damaged ecological environment through alternative restoration according to the specific damage situation,so as to compensate for the damaged ecology and restore the service function of the ecological environment.Through screening the cases of alternative restoration on "China Judicial Documents Network" and "Beida Fabao-Judicial Case Search System",sorting out the judicial practice and conducting a macroscopic empirical analysis,the ways of undertaking can be roughly divided into two categories: the first category is the performance of acts the first category is to fulfill the obligation of conduct,and the second category is to fulfill the obligation of monetary payment.According to the statistical analysis,there are three situations in which the premise of alternative restoration is applied in the judgment: the first one is permanent damage to ecological environment,the second one does not include permanent damage,and the third one is when the perpetrator is objectively incapable of performing.Next,the sample cases were studied and judged to identify the loopholes in the application of the law for alternative restoration,the contradictory points in the understanding of the scope of responsibility for alternative restoration by different judges in the adjudication process,as well as the problems of poor expert participation,lack of detail in the content and blind application of monetary compensation in the selection of specific programs,and the false position of adjudication value in the implementation issues due to the lack of clarity in the subject and content of responsibility supervision.The phenomenon.Overall,the improvement of alternative restoration needs to be addressed at the legislative and judicial levels.At the legislative level,it is necessary to reasonably determine the appropriate boundaries of alternative restoration methods,and to clarify the restoration goals under the framework of ecological restoration responsibilities so that they can be followed by law.To supplement the legislative loopholes,guiding cases can be issued to guide the typological application of alternative restoration and reduce the occurrence of different judgments in the same case.At the level of judicial practice,we should clarify the logical level and the use of subordination between direct ecological restoration,alternative restoration and monetary compensation,and clarify the relationship between their application and monetary compensation,so as to prevent the proliferation of the phenomenon of "one compensation for all" in judicial practice.Specifically in the process of developing alternative restoration programs,we should focus on the importance of expert supporters,and focus on the relevance of the restoration site to the infringement site when determining the specific implementation site,so as to better achieve a balance between efficiency and substantive fairness.Finally,only the implementation of specific programs can truly achieve the purpose of restoring the ecological environment,so the support and assistance of administrative organs are needed to design the evaluation and acceptance mechanism of alternative restoration,so as to guarantee the implementation of the responsibility of alternative restoration back to its place.