The Research On Legal Mechanism Of Eco-Compensation

Ecological environment and natural resources are basic conditions and material bases for the survival of human beings and the social economic development. However, the human beings, influenced by the concept of "priceless ecological environment" for such a long time, have been unscrupulously exploiting and using the natural resources in excess of the eco-bearing capacity, thus damaging or destroying the ecosystem functions. The human's acts have affected the regular operation of the ecosystem but the human fails to take some effective measures to repair and maintain the service function of the ecosystem, thus the ecological debt is inevitable. The constructing of eco-compensation law system plays a very important role of coordinating the interest conflicts between the interested personnel, protecting and maintaining the social fairness, paying off the ecological debt and protecting the ecological environment. The eco-compensation, a complex projects involved such specialized knowledge in areas of the environmental service evaluation and cost estimate, could not be duly implemented or executed without the practical application of such special knowledge related to ecology, economics, statistics and law theories. To obtain good results, one institution needs to be safeguarded and protected by the laws to ensure its further implementation, and the eco-compensation is not an exception. The legal issues of the eco-compensation in China are now in a developing stage. No special laws in relation to the eco-compensation is formulated or enacted in the environmental law system, and the content of eco-compensation is only embodied in or limited to the principles of individual provisions, which is not helpful to resolve the problems existing in the eco-compensation practices. In consideration of that, the author makes research on the relevant basic theories of the eco-compensation, and gives some advices on how to construct eco-compensation legal system in such four fields as the natural reserves, important ecological functional reserves, mineral mining, and watershed.This dissertation is divided into six chapters and chapter one is the foreword. Chapter two mainly mentions the basic theories of the eco-compensation and the following four chapters respectively make a brief introduction to the implementation of eco-compensation and the current legislation of the natural reserves, important ecological functional reserves, watershed and mineral mining and then outline the author's ideas and suggestions in respect of the constructing of eco-compensation law system.Chapter two is about the basic theories of eco-compensation. Eco-compensation is a complex project, and can be given different concepts from different subjects. Before eco-compensation's definition is clearly clarified from the perspective of law theory, the purposes, scope, method, standard, responsibility principle of eco-compensation must firstly be analyzed. The author argues that eco-compensation may be defined from the perspective of law theory as follows:eco-compensation is a type of legal action to sustainable use ecosystem services, to realize ecological fairness and safe, to adjust of economic and ecological relations between the stakeholders, and to reduce poverty, that the government uses kinds of economic ways to incent the sustainable supply of ecosystem service and charge the damage of ecosystem. The main reason of the ecological debt is the human beings' unscrupulously exploiting and using the natural resources and that, the human beings' must pay off the ecological debt for the following two reasons:one is the reasonable requirement by the ecological ethics and the other is the inevitable requirement for pursuing the ecological fair. Eco-compensation is a reasonable institutional arrangement for paying off the ecological debt. Eco-compensation can maintain the ecosystem balance by incenting to protect ecosystem and preventing destroying ecosystem. Environment services are public goods which result in the market supply being lower than what is socially optimal level and eco-compensation can overcome this defect. China has begun legislation for eco-compensation from both central and local levels. There are some shortages for the current law system, such as not perfect legal system, inadequate compensation funds. This chapter outlines the direction of perfecting the current law system on the basis of analyzing the shortage of the current law system and exploring the laws and regulations in relation to the eco-compensation in China.Chapter three is about the constructing of eco-compensation law system in natural reserves. The natural reserves strictly protect the natural resources and prohibit human beings from using them. In nature reserves, local communities and government are forbidden to use their traditional resources in order to protect ecological environment, which brings about huge economical loss and opportunity cost to local resident and government, so the beneficiary of natural reserves should compensate them. This dissertation, in this chapter, maintains that the eco-compensation is based on the external theories, the ecological fair theory, and the public goods theory of biodiversity, and, on the basis of the analysis and exploration of the relevant practices and legislations in relation to the eco-compensation in natural reserves both at home and abroad, this dissertation is of the view that, the main problems of the current eco-compensation in natural reserves in China are that the concept of eco-compensation has not been well established, the relevant laws and regulations related is not perfect, and the capital channel in relation is too single. Based on these problems, it suggests the constructing of the relevant law systems in relation to the legislation mode, capital management mechanism, implement mechanism, compensation mode. In chapter four, the constructing of eco-compensation law system in the important ecological functional reserves. The important ecological functional reserves play a key role in protecting ecological safe for the whole country and some areas. It is different from those special environmental reserves, such as the natural reserves, scenic area, national park, forest park, because it emphasizes on protecting the important ecological functions which belongs to limiting development areas. This dissertation maintains in this chapter that, in case of any overlap of the above mentioned reserves and special environmental reserves, the function area division should be firstly conducted and, then, different protection policies for different functions should be adopted. This chapter, after analyzing the implementation of eco-compensation in the important ecological functional reserves, is of the opinion that, the main problems are the lack of funds and the low compensation standard, which is far from the satisfactory compensation to the victims; the controversies and disputes between the economic development and ecological protection in the important ecological functional reserves are the main problems; and that the unreasonable setting of the management system is also an obstacle preventing the smooth implementation of the eco-compensation. The author is of the view that the government should mainly assume the compensation responsibility, strengthen its investment efforts, regulate the actions in their development and utilization of the ecological resources and widen the financing channels by means of levying or imposing the eco-compensation fees, in order to finally resolve the conflicts and controversies between the economic development and ecological protection.Chapter five is about the constructing of eco-compensation legal system of mineral mining. This chapter, after describing and analyzing the paid use system of mineral resources in mineral mining, which reflects the economical value of natural resources and owner's equity, clarifies the essential differences between the paid use system of mineral resources and eco-compensation. This chapter also emphasizes on the introduction to the typical systems in areas of eco-compensation in mineral mining in China:performance bonds system, abandoned mine reclamation fund, repairing the damaged land ecosystem, eco-compensation fees system, and makes an analysis of their defects. We should make sure of the clear undertaker, responsibilities and the ambit of liability. The environmental damage is sorted in two parts:the old damage and the new damage. The old damage is taken charge by the government through the establishment of abandoned mine reclamation fund and the new damage must be burdened by the mining enterprises absolutely by means of performance bonds system. Finally, the author makes an analysis and summary on how to construct the eco-compensation legal system in mineral mining from the two perspectives of general ideas and specific systems of the eco-compensation legislation in areas of mineral mining.Chapter six is about the constructing of eco-compensation legal system of watershed. The foreign practices on watershed eco-compensation are instructive and helpful to construct eco-compensation legal system in China. There are some cases about using eco-compensation agreements and water rights transfer to realize eco-compensation in China. The existing problems are that there is no intermediary to play a key role in reaching the eco-compensation agreement; the compensation standard doesn't include the opportunity costs. Then, based on the current legislation on the watershed eco-compensation, the author outlines ideas and suggestions as to how to improve and perfect the mechanism of water rights transfer, how the intermediary could play its role, the subject liability and the compensation mode.