Research On State Remedy Of Environmental Violation

The remedial mechanism for environmental violation is not only related to the compensation for damages caused by environmental violation effectively,but also involves the allocation of environmental violation risk fairly.The current remedial mechanism cannot fully meet the needs for environmental violation remedy,and exists two defects.Firstly,it cannot solve the problem of remedial validity owing to unknown infringers or the infringers' lack of ability to assume responsibility and social relief system such as environmental liability insurance.Secondly,it focuses on compensation for the victims rather than restoration and remediation of environmental damage,which cannot solve the problem of risk distribution of environmental damage under the background of risk society.As these defects are intrinsic,they cannot be solved by themselves.Therefore,the limitations of the current remedial mechanism call for the reconstruction of the State Remedy System(hereinafter referred to as SRS)which can implement collaborative remedy function together with tort liability system.In order to achieve this objective,this thesis will describe the reality of SRS system for environmental violation and analyzes its cruxes,following with analysis on the legitimacy,efficiency and rationality of SRS.In the meanwhile,this thesis will analyze the implementation path and the establishment of the SRS system.Specific chapters are as follows:Chapter one mainly makes a definition on the corn concept of environmental violation and remedial mechanism,and analyzes the reality of the SRS for environmental violation and its defects in order to define the basic perspective of this thesis.By comparing different legislative terms and theoretical concepts which were used to define environmental pollution or destruction,it can be concluded that the concept of"environmental violation" is more inclusive than the other concepts and more compatible with the essence of environmental violation remedy.Since the consequences of environmental infringement have the duality character of "human" damage and "ecological environment" damage,"remedial mechanism" have a better protection of personal rights and public environmental interest than "compensation".Due to the failure of environmental violation remedy function of tort liability system and social remedy system,SRS(mainly administrative-dominated remedies)have became a necessary remedy path.It can overcome the defects of current environmental violation remedy system,but it should be remould in order to make it to become a normal and legislation national remedy system.Chapter two will mainly focus on the legitimacy of SRS for environmental violation,that is,analyzing the reason of the State should assume the remedy responsibility for environmental damages caused by a third party's violations.This chapter selects the three dimensions of national environmental protection obligations,environmental infringement"risk sharing" and national capacity enhancement to analyze the necessity and rationality of the environment infringes on national remedy system,these are the theoretical basis of SRS.First of all,with the evolution of the state of the state and national tasks under the change of the law and order,the content and level of the national obligations of basic rights have also been continuously evolving and expanding,especially the countries derived from the environmental rights of the collective human rights that were created by the environmental crisis.The obligation of environmental protection requires that the government should make every effort to take appropriate precautionary measures to prevent environmental risks from harming the future ecological environment.Intervention measures should be taken for the possible occurrence of environmental infringements to eliminate or mitigate the harm or damage,and it is inevitable that The ecological environment damages will be cleared and repaired,and personal and property damage will be compensated.Secondly,the inevitability of the risk of environmental infringement in a risk society determines the need for the state to share the risk of environmental infringement.The national relief system aims to give play to the key role of the government in organizing and sharing the risk of environmental infringement.To solve the problem of system dilemma and practice that cannot be properly shared due to environmental infringement of the responsibility of the subject whose principal is unknown,lacking or sharing responsibility,and lack of social remedies.Finally,the rapid enhancement of national capabilities such as the extraction,redistribution,and environmental governance of public finances provides institutional foundations and organizational guarantees for the effective operation of environmental remedies against state remedies.Chapter three mainly to identify and select possible paths for environmental violations of state remedies.The construction of national remedy system for environmental violations should help the realization of national remedy goals.It can not only achieve the prevention of environmental violation risks,but also provide necessary and substantive remedy for ecological damage and human damage which cannot be remedied through tort law remedy and socialized remedy systems.The path selection is aim to fulfilling SRS is closely related to its nature.According to the level of social economic development and the state remedy capability,SRS should be defined as legal obligations and the right to obtain remedy from the state should be recognized within a certain range.By screening different paths of the state remedy,it can be found that the remedy path of administrative disposal,which acts as an alternative way to litigation,does not have the function of environmental hazard allocation.While some purely social payments such as social insurance,social assistance and state payments are difficult to meet the needs for the construction of SRS system.SRS system should consist of the compensation system for victims and the remediation system for the environment wherein the former refers to the emergency response and remediation to environmental damage,while the latter refers to the compensation for victims that suffered from environmental violation.Although SRS has a lot of impact on the structure and function of tort liability and responsibility insurance,it is not the replacement of other remedy mechanisms.As an important supplement to the liability transfer and dispersion mechanism,SRS for environmental violation will enhance the overall capacity of the environmental violation remedy mechanism in environmental hazard allocation and environment damage compensation.Chapter four emphasis on the design of the government emergency response system and government restoration system for ecological environmental damage.The government's environmental emergency response and rehabilitation system for ecological environmental damage not only meets the internal needs of ecological environmental damage remedy,but also enhances the governance capacity of environmental risks.Government responsibility for environmental emergency is designed to prevent environmental damage from occurring,to eliminate or mitigate the consequences or influence of environmental damages.While the remediation responsibility means that the government should take precautions to restore the damaged environment to its normal function or environmental quality.The governmental environmental response system should be established on the objectives and principles of environment and health safety on which the governmental environmental response organizations can be established at different levels and environmental response responsibilities can be defined at different stages.The main objective of government environmental remediation system is to maintain the environmental quality in order to meet people's basic needs for survival.Government environmental remediation system follows three steps such as assessing environmental damages that have occurred to determine the object and scope of environmental renovation,formulating environmental remediation programs,carrying out environmental remediation programs,and evaluating the effect of implementation.Environmental remediation fund can be taken to ensure the system operation effectively and the funds mainly come from financial allocations,extraction of environmental pollution taxes,environmental fines and social donation.The construction and improvement of the government's environmental emergency relief system should aim at ensuring the health and safety of the ecological environment.The principle of combining prevention with emergency relief,unified leadership,and comprehensive response should be the principle.A "graded" government should be established based on this principle.Environmental emergency relief decision-making command and linkage mechanism,clear "phased" government environmental emergency relief legal system.The government's environmental remediation system should focus on maintaining the human's basic living needs and the quality of the ecological environment.It should follow technically feasible,economically reasonable,and socially acceptable principles.The government's environmental remediation system generally follows three steps or phases.First,the organization conducts appraisal of the ecological damage that has occurred to determine the object and scope of the remediation;second,it organizes the development of ecological remediation programs;and third,it organizes and guides the ecology.The implementation of environmental remediation programs and post-evaluation of the implementation effects.Chapter five mainly focus on the discussion for construction of national compensation system for environmental health damage.State compensation for environmental health damage is a remedy process in which the government uses public power to intervene in environmental infringement.The government raises funds through channels such as financial appropriations,collection of environmental pollution taxes and fees,environmental law violations,and the recovery of funds from responsible persons.The compensation conditions and procedures for a country where it is impossible or difficult to compensate the victims who have been compensated for damages through civil remedies,social liability insurance claims,and environmental damage compensation fund payments as a representative of social remedies Relief system.As an equitable compensation,state compensation responsibility for environmental violation shares the features of public purposes,alternative and supplementary,and should follow the principles of statutory,timeliness,validity and necessity.State compensation system not only has the function of remedy to victims,but also has the value to disperse or transfer environmental risks.The damages which can be filled by the State are not due to "acts of state".Also,the damages are limited to the victim's significant interests caused by particular environmental pollution and they are unable to obtain compensation through other remedies.The state compensation system should be designed from the compensation elements such as the range,standards,ways and procedures of compensation.State compensation system can take the form of Environmental Damage Compensation Fund to operate state compensation system effectively and make sure Environmental Damage Compensation Fund will be responsible for raising and managing the funds and so on.