On The Legislation Of Administrative Assistance System In China's Environmental Management

The horizontal pattern of environmental administrative mechanism inChina can be summarized as a mechanism including unified supervision andmanagement by separate departments. As a result, the various departmentsresponsible for environment executive administration have always donethings in their own ways with only division of work but no cooperation. Thissituation not only makes all departments fail to fulfill their environmentalprotection functions but also leads to segmentation of government'senvironmental protection functions. For that reason, we maintain thatadministrative assistance system should be fully established in theenvironmental protection law system. Administrative assistance system is anessential part in dealing with the lateral relationship between administrativesubjects. The advantage of administrative assistance system mainly lies inthat it not only respects the pre-existing legitimate authority of administrative subjects but also makes up for the loopholes and overlaps caused bymeticulous administrative division. Under the premise of keeping the existingenvironment administrative system, we can make the best use of thisadvantage to establish administrative assistance system and to ensure thesupport and cooperation of all departments. Once the joint forces of lawenforcement come into effect, then the government environment protectionfunctions can be finally fulfilled completely.As a matter of fact, the experience of administrative assistance aboundsin the practice of environment protection in China. The administrativeassistance involves not only the departments of environment supervision andadministration but also various law enforcement links and environmentadministrative affairs. Specifically, it can be divided into two categories: oneis the administrative assistance between environmental supervision&administration departments and other functional departments, mainlyincluding the assistance between the environmental protection bureaus andPublic Safety, Supervision, Industry and Commerce Departments; the other isthe administrative assistance among all environmental supervision&administration departments, mainly including the assistance between theenvironment protection department and the Environmental pollutionprevention and control department, natural resources protection department, etc.. All the pre-existing experience indicates that it is necessary to set upadministrative assistance system in China's environment administration. Onone hand, the administrative assistance will play a positive role in fulfillingthe government environment protection functions; on the other hand, thereare many administrative assistance subjects and complicated situationbecause the environment protection in China is featured with variousdepartments and environment integrity. Therefore, even if the AdministrativeProcedure Act in China has formulated some general rules on administrativeassistance, it can not completely meet the special needs of administrativeassistance in environment administration. In view of this, the presentenvironment law should be revised to acknowledge the administrativeassistance experience in environment management so as to bring into betterplay its legal function.However,after observing the administrative assistance lawmaking inChinese environmental law, we find that the legislation in this field is almostan uncultivated land with only a few principled legal provisions. Theimperfectness of the legislative system is manifested in that there is not anyprovision on this system in the Environmental Protection Law of the PRCwhich is the comprehensive and basic law for China environmentalprotection and that the environmental administrative law is inefficient in fulfilling its auxiliary legislation role. The imperfectness of the legislativecontent is manifested in that the administrative assistance right of claim hasnot been made clear for the environment protection departments and that thespecific procedures of administrative assistance system have not beenstipulated. The status quo brings about a series of problems in administrativeassistance practice of environment protection. First of all, because theexisting legislation has not explicitly stipulated the conditions ofadministrative assistance, all departments concerned are not clear about theirrespective assistance obligations and rights, hence, ambiguous relationshipamong all parties in environment protection administrative assistance.Secondly, because the existing legislation has not stipulated the controversysettlement and responsibility ownership, with no legal force and muchshuffling and rejection, the actual effect of administrative assistance system isbarely satisfactory. Finally, because of the insufficient legislation, theadministrative means such as superior instruction, joint conference etc. takethe place of legal force to conduct administrative assistance, hence thephenomena of the usurpation of administrative power and the abuse of power,which conceals the rightful value of administrative assistance system.The above mentioned contradiction between the abundant administrativeassistance experience and legislation deficiency in environment protection highlights the necessity of legislation. Furthermore, in order to formulate theadministrative assistance system of China's environment management, it isindispensable to draw lessons from the foreign administrative assistancelegislation experience. Through observing the administrative assistancelegislation experience in overseas environmental law and other overseas anddomestic administrative special law, we have acquired legislativeenlightenment in two aspects: first, the feasible legislative model is a modelcombined administrative procedure act with specific law; second, thelegislation clause combines the principled provisions of separate law with thespecific provisions of supportive law, with the legislation observance ofgranting the right of claiming assistance to the assistance subject.Based on the above-mentioned experience, the administrative assistancesystem in Chinese environment management should be constructed from thefollowing aspects: First, with the environmental supervising administrativemechanism confirmed in Article7of the revised Environmental ProtectionLaw as a premise, the subject of administrative assistance should bestipulated in principle. Second, it should be further clearly stipulated in theenvironmental administrative regulations that the environment protectiondepartments and other departments concerned can ask for mutualadministrative assistance in several basic situations. Third, in the regulations or normative documents constituted by the environmental protectiondepartments, we should regulate and elaborate the specific applicationsituations, operation procedures, cost, dispute settlement, relief mode andlegal liability, etc. in administrative assistance.