The Study Of Legal Mechanisms Of Ecological Interest Of The State Compensation

Since the mid1980s, the concept of ecological compensation has begun to appear in the academic circle in China. In August2007, the Ministry of Environmental Protection issued the Guiding Opinions about Developing Experimental Work of Ecological Compensation and raised the idea that policies and mechanisms of ecological compensation should be determined on the basis of the service value of ecological system, the cost of ecological protection and the cost of developing chance,etc. As a result, the scope and the connotation have been further broadened. Yet up to the present, there still exist many disputes over what is ecological compensation, its basis and nature, what are the contents and scope of compensation, the particularity of its subjects and others.This dissertation firstly analyses the legal meaning of ecological compensation.In addition,it does the critical research on some representative views of the connotation and scope of the ecological compensation from the academic circle, the legislature and practical departments, and points out some of the fallacies concerning its basic theories and definition.And then it makes an induction and abstraction over its theoretic basis, the externality theory, and with the agriculture of western area, goes through a positive analysis for the environmental positive externality of agriculture and the agricultural property damage.Finally,it demonstrates the rationality of state compensation over the ecological interest,and puts up the legal design over the system of state compensation. The main research achievements of the dissertation are as follows.(1)The Ecological compensation in environment science,in the sense of social science,especially law,should be the compensation of ecological interest, and the rehabilitation and remediation to the ecological system by human being which can fall into four specific relation forms,including the remediation of rehabilitation from the developer, the remediation of governance from the polluter,the remediation of proliferation from the user and the remediation of function from the user.Among that,the remediation of rehabilitation from the developer, the remediation of governance from the polluter,the remediation of proliferation from the user have been put under the regulation of current relative policies and law,and yet the remediation of function from the user is still beyond the framework of current policies and law. The ecological compensation,as a new system phenomena, is not only a simple substitution of the existing one,but it should be in allusion to the remediation of function from the user which has been beyond the control of current policies and law.(2)The remediation of function from the user,from the angle of its relationship with current policies and law, compared with other three relation forms,has its uniqueness including the particularity of social relationships, the complex nature of participating subjects and the fuzziness of the legal interests,etc. The main reason of economics is that the remediation of function of the environment is of the character of typical positive externality or external economy. According to the idea of the positive externality of economy,basic spirit of law and some specific regulations,the remediation of function of the environment naturally becomes the regulatory objects of legal system of ecological compensation. As a result,legal meaning of ecological compensation is abstracted and its specific scope is nailed down.(3)After defining the legal meaning of ecological compensation, it exams and studies the analysis and definition of ecological compensation from the academic circle especially the jurisprudential circle,and gets the idea that there exist fallacies of understanding in current research,including confusing ecological with the relevant concepts of environment law,confusing ecological compensation with the relevant system of compensation for damages,broadening the extension of the concepts,and lacking veracity of use of relevant basic concepts,etc.It further puts forward the questions and principles which should be noticed and held in definition.(4)It applys the compensation and the economic basis,the externality theory,to the analysis of agriculture in western area of China,obtains a result that the agriculture of west China has the clear feature of external economy,and makes a conclusion to the external economy of agriculture of west China from three aspects including its general form,its scissors effect,and extrinsic effect on protection of the rare species of the agriculture in western areas.In addition,it analyses the specific contents and forms of property rights damages that the external economy has produced to the labour elements of agriculture,the non-labour elements of agriculture and other elements.(5)With the analysis paradigm of Coase theorem,it studies the basis of law and economy and jurisprudence basis,holding the idea that under the situation or occasion of environmental positive externality,from the angle of law,there exists the unbalance phenomenon of different types of environmental functionality interests among different subjects resulting from different positive externalities.Therefore,some legal mechanism or way is needed to change the unfair condition of interests unbalance,and it is the construction of legal system of state compensation that is exactly the mechanism to change the condition of interests unbalance.(6)It designs legal mechanisms of state compensation under respective conditions, respectively from the angle of vertical unbalance of interests and from the angle of transversal unbalance of interests.The contents mainly include the specific rules concerning the composing elements and realization patterns of state compensation responsibility,the subjects of state compensation,the items and standard of state compensation,the process of state compensation,the guarantee measures of the state compensation,the periodic analysis of the state compensation,and the legal effect of the restricting measures when state compensation is not achieved, as well as some questions concerning the implication among those rules,the necessity and rationality of those rules.Therefore,the relatively systemic design of system for state compensation of ecological interests has been made.