Study On Allocation Of Environmental Administrative Enforcement Power In China

As the law system of environment and resources protection with Chinese socialism characteristics has been formed,how to transform "environmental law on the books" into a comprehensive "environmental law in action" has become the key factor influencing the environment law construction in China.The transformation process is mainly involved in environmental law enforcement.As the top issue facing the problem of environment law enforcement,administrative law enforcement environment configuration mainly involves which subject would be most effective and get strict enforcement to environmental administrative law enforcement : on the one hand,the environmental administrative law enforcement configuration is directly related to the discretion of the environmental administrative law enforcement efficiency;on the other hand whether the configuration of environmental administrative law enforcement is proper or other power restriction mechanism is effective will directly relate to whether the environmental administrative law enforcement will be abused.Therefore,it can be said that rational allocation of environmental administrative law enforcement is one of the important measures to solve the environmental law deficit at the present stage in China.Theoretically,configuration of environmental administrative law enforcement issues of this thesis includes four dimensions: environmental administrative law enforcement of the configuration between the government and society,between the government longitudinal configuration and horizontal configuration of environmental administrative law enforcement and the internal environmental administrative law enforcement of environmental protection department.And the above four aspects of environmental administrative law enforcement configuration is not independent but in a progressive transformation and closely related relationship,which clearly shows how environmental administrative law enforcement transformed from fuzzy power given by people to government to be specific and clear power directly exercised by government internal institutions.Specifically,between the environmental administrative law enforcement configuration of government and society,there are "market failure" and "government failure" problem at the same time,which determining the environment should be balanced by government(administrative)and society(market)to resolve the problem and it should not be ignored and continuously adjusted as time changes.And at present,our country pays attention to solve the "market failure" while ignore the "government failure" problem,while in fact we should focus on building public power supervision and restraint mechanism and strengthening private implementation of environmental law system in our country,finally realizing the combination of environmental law implementation of public and private implementation and cohesion;In intergovernmental longitudinal configuration of environmental administrative law enforcement,the basic jurisdiction standard of our country of the area is "isomorphic responsibility".In order to solve the above problem we should adhere to the principle of accrual matching,including in configuration standards both on jurisdiction and the environmental impact,and make legislative responsibilities clear and adhere to the principle of "center of gravity down” in proving environmental department configuring,finally reaching " triangle "environmental monitoring task model that meet the needs of" triangle "of environmental administrative law enforcement configure security mode and realizing the unity of monopolization of the government power and responsibility of environmental protection department;In the horizontal configuration of environmental administrative law enforcement,as our country views departmentalization principle as configuration and the basic standard,the environmental administrative law enforcement scatters and overlaps.In order to solve the above problems,we should adhere to the principle of ecological systematic management,steadily pushing forward the environmental protection and the super-ministries reform and clear principles of administrative assistance in order to effectively integrate and form the fragmentation of administrative resources;In the internal environmental administrative law enforcement configuration,due to the lack of a clear standard in China,internal decision-making power and executive power in the environmental protection department is not completely separate and lack of effective communication and feedback.In order to solve the above problems,on the one hand,we should adhere to the principle of separation of powers,realizing the appropriate separation of internal decision-making and executive power of environmental protection department,in order to achieve the aim of preventing the abuse of power.On the other hand,we should adhere to the principle of communication and coordination,in order to make timely and efficient communication between decision-making body and actuator and make feasible decision-making mechanism and effective execution.From the practice level,environmental administrative law enforcement configuration shall be first to solve in ecological protection management system reform,strengthening ecological environmental protection management system reform by top-level design of system and policy.And at the same time,we should not promote the reform of a certain level of environmental administrative law enforcement separately,but make a comprehensive consideration of four levels of environmental administrative law enforcement configuration problems:reasonable allocation of environmental administrative law enforcement on the basis of integration of different areas,different departments and different levels of regulatory power;reasonable construction group supervision mechanism of power,ensuring its effective for environmental regulation and administrative law enforcement;eventually forming efficiency,scientific and reasonable ecological environment protection management system.Specifically,administrative law enforcement configuration between the government and the society will locate the problem in the implementation of environmental law-the implementation of public and private,including perfecting public implementation of the environmental law system,strengthening the private implementation of the environmental law system and realizing the combination of environmental law implementation and cohesion;In intergovernmental longitudinal configuration of environmental administrative law enforcement,this problem will locate in configuration mode,establishing vertical management system or setting up regional or basin resident agencies by up-level environmental department.At the present,our country can adopt the above two models at the same time,the provincial vertical management mode in the field of environmental protection,and setting up regional or basin resident agencies by provincial governments according to the actual situation in this area,in order to minimize improper intervention of local government;After a certain ease of the environmental problems,we can take a local or basin agency model,the local government being responsible for the environmental protection in region and exercising the corresponding environmental administrative law enforcement;In horizontal configuration of governmental environmental administrative law enforcement,we should locate the problem in configuration,by promoting environmental protection division of the super-ministries or exercising unified supervision over the management.At the present,our country should gradually promote the super-ministries reform of environmental protection.But due to the difficulty of its process and long term,we should also continue to improve and unify the supervision and management.It is worth noting that even the super-ministries environmental protection reform is completed in our country,this one department cannot completely solve the problem of environment alone,because of the complexity and comprehension,and it also needs help of other administrative department,the justice department's support and coordination and environmental management coordination mechanism across different departments and industry;In the internal configuration of environmental administrative law enforcement,the current focus is to establish clear and unified configuration of standard,promoting communication of the decision-making power and executive power to be appropriately separate and effective and internal supervision to be independent and effective.Specifically it includes setting up internal institutions on the basis of functional integration in "decision-making departments and executive departments" mode,building comprehensive coordination center to ensure appropriate separation of decision-making power and executive power and effective internal supervision.From the point of view of environmental law,the biggest problem of our country's current administrative law enforcement configuration is deviation of rule of law,and four levels of enforcement configuration present characteristics of different levels of administration,non-reciprocity and uncertainty,which leads to the enforcement configuration of environmental administrative law being in a state of extremely unstable,randomness and even conflicts with current law.In order to solve the above problems,the environmental administrative law enforcement configuration shall be included in the category of environmental law,and environmental administrative organization law should be formulated in accordance with the requirements of the principle of rule of law to realize the standardization of law enforcement configuration and stability.On formulating the overall requirements of the environmental administrative organization law,the following five steps should be followed: firstly,formulating four levels of environmental administrative law enforcement regulations at the same time;secondly focusing on the theory of social power on the configuration of the environmental administrative law enforcement specially;thirdly,insisting on the principle of accrual matching in the configuration of environmental administrative law enforcement;fourthly,adhering to the ecological principle and systematic management in horizontal enforcement configuration;fifthly sticking to the separation of powers and communication and coordination in the configuration of internal environmental administrative law enforcement.As for the main content of the environmental administrative organization law,the following four aspects should be included: firstly,the function of the environmental department should include rationalizing the authority of environmental department responsibilities,ensuring environmental administrative law enforcement from the absence of dislocation or offside and paying more attention to private implementation of the environmental law system,and strengthening the supervision of government behavior and constraints and setting up the environmental law implementation of public and private security system;secondly,on longitudinal power level,it includes six steps including taking jurisdiction and environmental impact standards to configure the governmental longitudinal environmental administrative law enforcement,making reasonable configuration between higher and lower government environmental protection department of finance governance,establishing environmental administrative law enforcement system,focusing on strengthening the supervision on lower government environmental protection department from the higher level,establishing vertical management system and perfecting the government environmental protection department of regional or basin local agency system;thirdly,on horizontal power level,is puts forward the long-dated solution of promoting super-ministries reform of environmental protection and near-term step of perfecting supervision and management mode;Fourthly,on internal power level of environmental department,it includes setting internal institutions in "decision-making departments and executive departments" mode on the basis of the integration of functions,building a comprehensive coordination center to ensure appropriate separation of decision-making power and executive power,and building special supervision department to ensure internal supervision independent and effective.