The Functional Design And Institutional Adjustment Of Compensation For Ecological Environmental Damage

The Compensation for Ecological Environmental Damage(hereafter as“Compensation”)follows the logic of the binary division of environmental tort liability system,and more effectively fills the institutional gap in the field of ecological and environmental public governance in China,which is a groundbreaking practical significance for the construction of ecological civilization in China by combining the efficiency of administrative functions and the fairness of the trial function.However,from the respect of the current judicial practice of the Compensation,the existing system can hardly achieve its predetermined function of eco-environmental relief system.In judicial practice,the supporting measures of the Compensation are obviously inadequate,and there is a conflict with the prior judicial relief path,which hinders the realization of other litigation system functions and easily leads to repeated trials for unified ecological environmental damage,resulting in a serious waste of judicial resources;on the basis of jurisprudence,the Compensation is difficult to justify itself in terms of system design,and its typical public-private law duality integration attributes This makes it difficult for the administrative and judicial powers to achieve the relief functions envisaged at the beginning of the system in an effective balance,and even leads to the intervention and overstepping of the judicial power on the administrative power,which is very different from the control idea of administrative law enforcement organs being the first discretionary subject in the field of ecological and environmental governance.In order to better respond to the above-mentioned issues and to combine the requirements of the Compensation,the direction of the improvement and development of the Compensation should be discussed from the perspective of the differentiation and setting of institutional functions.The system should be appropriately adjusted to achieve its proper role as a complementary means to the ecological and environmental governance functions of administrative organs.On the one hand,in terms of the basic function of the Compensation,that is,the ecological environmental damage relief function,it is necessary to go back to the stage of the lawsuit,review its institutional positioning as an effective supplement and extension of the administrative law enforcement means,as well as its institutional functions within the institutional framework,and on this basis,discuss its adaptation options.In other words,according to the general rule of administrative rule of law development,on the premise of maintaining the administrative power as the first subordinate control subject of ecological and environmental governance,focusing on the endogenous contradictions and external conflicts of the system,combining with overseas legislative experience,clarifying the basis of the right to sue for the Compensation,and removing the existing obstacles to the operation of the system by strengthening the pre-litigation consultation procedure of the Compensation and improving its interface with the mechanism of environmental public interest litigation.The system’s operation is hindered and the real implementation of the system’s remedial function is facilitated.On the other hand,it is necessary to try to expand the institutional functions of the system on the premise of improving its basic functions.With regard to the preventive function of ecological and environmental risks,given the breakthroughs in existing judicial practice,the realistic needs of administrative organs should be properly explored,and the possibility of the government initiating risk prevention litigation should be properly explored on the premise of strictly limiting the threshold of government prosecution for new types of ecological and environmental risks that the administrative organs are unable to solve through administrative enforcement means.At the same time,with regard to the disciplinary function of the system,the necessity and feasibility of introducing punitive compensation mechanisms should be fully considered on the basis of the principle of "equal punishment",and its application in the Compensation should be strictly limited in a modest manner.