A Theory Of Responsibility Of Soil Ecological Restoration

The soil ecological problems has become increasingly prominent,which are mainly due to the accumulation and transformation of hazardous substances caused by the development of non-standardized industrialization in China in the past 40 years.Due to the accumulation and concealment of soil ecological problems,China has not yet designed a special system to manage them,and the solutions are still under discussion.At the theoretical level,many scholars have conducted valuable research on this issue,but they mainly focus on the fields of environmental science,soil science,economics,and so on.The contents discussed are mostly limited to science,technology,and production models,but the governance system is rarely involved.This is also the case in the legal field of formal institutional design.Only a few scholars have conducted studies on the specific issues under the topic of soil ecological destruction in traditional responsibility cognition.Therefore,the systematic discussion on the responsibility system of soil ecological restoration is urgently needed.As a "filter" for environmental systems such as the atmosphere and water,soil has accumulated many harmful substances brought about by economic development in the past forty years.These harmful substances are affecting human health and development seriously.The above-mentioned pollution is mainly concentrated in areas such as the "Yangtze River Delta" and the "Pearl River Delta" as well as the old industrial bases in northeastern China.The areas of pollution are mainly concentrated on land for polluting enterprises,industrial waste,sewage irrigation areas,and on both sides of highways.For solving the above problems,our country's governance system is extremely poor.When we examine China's environmental protection legal system,it is not difficult to find that the legal system of soil ecological restoration in China generally presents issues such as unresponsiveness,high information costs,inadequate law enforcement,and lack of judicial relief.These problems are all rooted in the lack of responsibility system for soil ecological restoration.Therefore,we,from the perspective of responsibility,should expand the subjects scope of the responsibility and even socialized the responsibility for soil ecological restoration to solve the system dilemma.The dilemma of soil ecological restoration system under the perspective of responsibility is essentially the issue of the distribution and implementation of responsibility.The focus of this issue lies in the distribution of responsibility.The traditional theory of responsibility tends to focus only on the ecological restoration responsibility of soil polluters.Although these theories may be able to solve the problems of point-sourced soil pollution and realistic soil pollution in practice,in the face of the diachronic and diffusion problems of soil pollution,these traditional theories are often out of use.Therefore,we should find new ways to find a new paradigm of soil ecological restoration responsibility and establish a system that can fully allocate the responsibilities for soil ecological restoration.Through examining the subjective and objective factors of the responsibility of soil ecological restoration,we can find that the interest is the driving force of soil pollution,and the interest runs through the entire process of soil occupation,use,pollution,and restoration.Based on the inherent link between the interest and corresponding subjects,examining the distribution relationship between interests in different subjects,we can discover that such three sorts of interests as the direct interests of land use,the interests shared by land management,and the interests of land use that are derived from land use belong to polluters,rights holders of the land and the public.These three kinds of interests exhibit scattered characteristics and have a certain level of hierarchy.Based on the corresponding relationship between interests and subjects,the third-order paradigm "interests-sharing sequence" can be constructed.Polluters,as the initiator of soil contamination,should be responsible for all the responsibility.The right-holders of land,based on the interest-sharing from land use and the land's management,should be also responsible for soil ecological restoration.And the public is ultimate responsible for soil ecological restoration because they are the land-use-drivers and ultimate beneficiaries.Then,according to this "interests-sharing sequence",the responsibility for soil ecological restoration can be divided into three types:behavioral responsibility,state responsibility and social responsibility.These three types of responsibilities are not only different from each other but also related to each other.The order of their responsibilities,triggering conditions,imputation factors,limits of liability,and legal consequences are all related and different from each other.The construction of the responsibility system for soil ecological restoration needs to discuss the three types of responsibilities.Firstly,behavioral responsibility means that the soil polluting actor bears the responsibility for soil ecological restoration,and the reasons for liability is based on subjective negativity and objective accountability of actors.Its constituent elements are divided into factual elements and legal elements.The factual elements include the destructive behavior,the result,and the causal relationship between the destructive behavior and the result,and the legal elements include mandatory regulations,illegal behavior patterns and negative evaluation.The specific types can be divided into different categories according to different standards,mainly including operating responsibility and non-operating responsibility,direct and indirect responsibility,separate responsibility and joint responsibility.Its realization mechanism is centered on judicial remedy mechanisms and principles,including the responsibility clearness,responsibility initiation,responsibility implementation,and responsibility supervision.Secondly,state responsibility is the responsibility of the rights-holders of the land to take up the ecological restoration of the soil within the scope of his income because he shares the benefits of the land.The basis of its imputation lies in the rights holder's possession of the land,the benefits of land use and the benefits of soil ecological restoration.Its constituent elements include factual elements and legal elements.The factual elements include the facts of control and damage,while the legal elements contain statutory subjects,obligations and negative evaluations.Its types can be divided into primary responsibility and supplementary responsibility,prevention responsibility and restoration responsibility,public responsibility and alternative responsibility.The state-responsible subject is also the owner of the land,so the subject for requesting compensation for soil ecological restoration is likely to be absent.Therefore,the state responsibility of soil ecological restoration should be statutory responsibility.The responsibility can only be achieved with the aid of administrative agencies.The mechanism includes two aspects:statutory obligations and administrative compulsion.The statutory obligation is that the responsible person should be responsible for maintaining a good state of the soil.If he does not fulfill its obligations,he will be forced to bear the responsibility of soil ecological restoration.And the administrative compulsion is stipulated by the administrative agency.The person responsible for the ecological restoration should be enforced take his obligations in accordance with the law when his own responsibility not being assumed.Lastly,it is the social responsibility of soil ecological restoration.The social responsibility of soil ecological restoration refers to the responsibility of the public to share the responsibility for soil ecological restoration due to the sharing of the overall benefits from land use.The imputation basis includes the correlation between social development and soil ecological pollution,the need for social sustainable development and the limitation of individual responsibility.Its constituent elements also contain factual elements and regulatory elements.The factual elements include the social public's laissez-faire and assistance for soil pollution and the enjoyment of soil ecological benefits.The regulatory elements include the subjects statutory,formal statutory and content statutory.The social responsibility of soil ecological restoration is different from the state responsibility and behavioral responsibility.The subject of social responsibility is not only an independent t but also a collective concept.Social responsibility cannot be achieved through the traditional responsibility mechanism.Its realization mechanism is the principle and system centered on the national macro-control measures.The country(government)collects the benefits of the social public transfer through these macroscopic institutional arrangements and also collects the responsibility of the individual's to realize the ecological restoration of the soil.The three types of soil ecological restoration responsibilities can be institutionalized.The design of responsibility should be based on the principle of "interest-sharing sequence",fair attribution and the necessity of soil ecological restoration.Based on this principle,the behavioral responsibility will be embodied in the soil ecology tort liability system,and the fault liability and no-fault liability system will be set.The state responsibility is embodied as a responsibility system for the state of soil ecological restoration,and the starting conditions,system structure,and liability commitment system are set.The social responsibility is embodied in the system of soil ecological restoration of social responsibility,and budget and final accounting system,taxation system,and financial transfer payment system are set up to establish the collection and implementation of social responsibility.In addition,the system of supervision and relief should also be set up in the institutionalization of the responsibility for soil ecological restoration.