On The Application Of Restorative Justice In Cases Of Environmental Resources

Judicial governance dilemmas,in which "the lawbreakers are sentenced or penalized,the damages to eco-environment persist,the government has exhausted its options,and the public pay the bill",are likely to arise in the application of traditional judicial mode in cases of environmental resources.On the surface,the judicial system has played its role in meting out legal punishment and ascertaining responsibilities,but in essence the substantial fairness and ecological righteousness of the environmental justice haven’t been achieved.The restorative justice for eco-environment has been put forward to address the misalignment and governance dilemmas of traditional judicial mode in special eco-environment cases,and attend to the urgent need of realities.It is born out of case by case explorations in judicial practice,so it has obvious features in prospective guidance.In the meantime,practical problems like inadequate direct jurisprudential basis researches in current eco-environment restorative justice practice,focus of scientific principle studies on environment-related criminal governance measures,theoretical issues like ambiguity in concepts and unbalanced development,application discrepancies in similar cases and low coordinated application of legal responsibilities,have to be resolved,in a bid to standardize the guidance of practical development with eco-environment judicial order.As a new judicial concept and mode rooted in the current practice of environmental justice of China,it has cast off the shackles of anthropocentrism,taken human society and eco-environment as a community of life with legal interests to be protected,and laid emphasis on equivalent protection of public eco-environment,environmental rights and interests of contemporary people as well as the survival and development rights of future generations and other species.On the basis of lawbreakers undertaking equivalent and balanced adverse legal consequences,they are stimulated and guided to actively participate in damage remedy and environmental protection activities through various eco-environment restorative justice measures.Besides,relevant entities are also mobilized to get involved in judicial governance,to protect eco-environment,restore damaged social relations and uplift overall quality of eco-environment to the maximum degree,and ultimately realize the integration of judicial effect,social effect and environmental protection effect.It guides the practical operation,system design and concept shaping of eco-environment justice with its unique values,on the strength of solid theoretical foundations.Environmental righteousness and ecological righteousness extend the theory of righteousness,lending fundamental references to the protection of the present and future of human society as well as the rights and interests of creatures in nature.It is displayed by substantial righteousness,procedural righteousness and preventive righteousness in terms of realization model as well as intragenerational equity,intergenerational equity and interspecies equity in terms of protection targets.Then the single object protection in the narrow sense has shifted to multi-value balance in the broad sense in justice.Restorative righteousness theory has provided practical references to focus of environmental justice on restoration of damaged eco-environment and social order,respect for the legitimate rights and interests of lawbreakers,and stimulation to guide them to participate in repair remedy and environmental protection through ideological enlightenment and system incentive,with an emphasis on preventive protection and substantial judicial governance.Eco-civilization theory explains the intrinsic connection and interactive logic between mankind and nature,economic development and environmental protection from the angles of rise and fall of civilizations,community of life and eco-environment productivity,and unveiled the inspirations in the values of judicially safeguarded coexistence between mankind and nature as well as green development from the angles of policies and practice.It is displayed as pursuit of specific environmental justice values of environmental fairness,environmental order,environmental safety,eco-benefit,judicial efficiency and sustainable development.Cost-benefit theory provides the basis of efficiency theory and methodology for inclusion and exclusion of different values,selection of different restorative measures and application of eco-environment restorative justice in practice.Judicial activism facilitates to break through shackles of traditional behaviors,by actively applying various measures at different steps to realize environmental protection efficiency and coordinating entities to ensure judicial outcome.It has responded to the public confusion and doubt to enhance the jurisprudential foundations of righteousness,practice,value and methodology for eco-environment restorative justice.Based on the foregoing and combining the legitimate,reasonable and feasible foundations of other law cultures,policy basis and social rule by law,detailing,concretization and operable practice of eco-environment restorative justice in abstract conception have been explored.It includes establishment of conformity to the principles of wholeness,initiative,balance and green priority,standardization of undertaking eco-environment restoration responsibilities like existing complementary planting and restoration of green,enhanced reproduction and release and land reclamation,innovation of measures like environmental protection learning order,public-benefit environmental order,environmental protection preventive order and negative information disclosure order as well as coordinated application of undertaking different types of legal responsibilities.Then it comes to the establishment of typical judicial application rules,such as judicial damage,prior intervention,procuratorial hearing and corporate conformity mechanism at the pre-litigation stage,eligible subject extension and special judicial mechanism at the case-filing stage,restorative behavior incentive and multiple coordinated judicial mechanisms at the trial stage,damage control,mode innovation and supervision and evaluation mechanism at the execution stage,hence sorting out the organizational,systematic and standardized development of eco-environment justice under the guidance of eco-environment restorative justice.