Research On Administrative Relief Of Ecological Environmental Damage

No remedy,no right.The existence and quality of the ecological environment damage relief path directly determines the effectiveness of the protection of the public interest of the ecological environment.Traditional environmental administrative relief methods are questioned because they cannot compensate for the functional loss and permanent functional loss during the ecological environment damage.In addition,traditional environmental administrative relief has problems such as power rent-seeking and profit capture.The academic and practical circles Begin to explore other relief paths to deal with the ecological environment damage.On May 28,2020,China’s Civil Code was formally passed for deliberation.The code included ecological environmental damage into the scope of adjustment of tort liability.Compared with the traditional environmental administrative relief,the greater advantage of the private law relief path is that it can fully compensate for the functional loss and permanent functional loss during the ecological environment damage with the help of private law through litigation procedures.Whether the era of the Civil Code means that the legal remedy path of my country’s ecological environment damage has chosen the civil law remedy and abandoned the administrative remedy path is still inconclusive.Administrative power and judicial power have their own advantages and disadvantages in dealing with ecological environment damage.The proponents of the two approaches are hard to distinguish between their own advantages and the others disadvantages.Rather than struggling in the theoretical quagmire of comparing the advantages and disadvantages of the relief path,it is better to analyze the essential relief needs of the ecological environment damage from the relief object itself,and then choose a path that meets its essential needs and design specific system specifications to respond to the ecological environment damage.The grim reality.It is necessary to proceed from the essential laws of the ecological environment to explore the relief needs of ecological environmental damage.Arzanov proposed the theory of division of legal departments.The division is determined by normative functions and adjustment objects and adjustment methods.The prerequisite for choosing which legal remedy path to deal with ecological environmental damage is to analyze the essential needs of ecological environmental damage.Under this premise,we will screen the basic functions and operating logic of each legal remedy path,and choose a relief method that meets the essential needs of ecological environmental damage.specification.First of all,ecology generally believes that the ecological environment as a whole,its damage identification and relief should be carried out on this basis.As a scientific ecosystem,there is always an exchange of energy between the elements of the ecological environment.From a scientific point of view,the essential requirement of ecological environment damage relief is to realize the overall restoration of the ecological environment in a timely and professional manner.Secondly,from a legal perspective,the nature of ecological environmental damage is the loss of ecological environmental benefits,and pure ecological environmental damage points to the loss of ecological environmental public benefits.Therefore,the ecological environment damage relief demand that the legal relief path responds to is the timely and professional overall restoration of the damaged ecological environment and the comprehensive relief of the damaged ecological environment for public welfare.After clarifying the need for relief of ecological environmental damage,it should be used as a yardstick to examine the main problems of the path of ecological environmental damage relief.Traditional public law relief led by administrative power faces insufficient targeted legislation on ecological environmental damage relief,heavy punishment and light remedy,unable to organize and implement ecological environmental restoration in a timely manner,standard structure deformity and heavy fines cannot fully fill the damaged ecological environment public welfare,government legitimacy crisis is questioned Realizing the legitimacy of environmental justice disputes;the judicial power-led private law relief path also has doubts about the foundation of the request,the difficulty of the compatibility of the private law responsibility system,the lag and delay of the judicial power,and the poor effectiveness of the adjudication implementation,which directly lead to the ecological environment Untimely,unprofessional repairs,poor overall effects and other embarrassing situations.The new administrative relief path that combines high power administration and service administration theories can meet the essential relief needs of ecological environmental damage.Administrative relief is not a strict legal term.In a broad sense,administrative relief refers to the protection of private legal rights and public interests through the operation of administrative power.The nature of damage to the ecological environment is the reduction of public interest in the ecological environment.As the trustee of public property,the state is of course obliged to provide relief to the damaged ecological environment.The obligation of state relief is not equivalent to the obligation of the government.The performance of state obligations is achieved through the allocation and operation of state power.The essential attributes of the traditional three powers are different,and the state obligations they undertake are also different.The essence of judicial power is the power of judgment,and its advantage lies in the resolution of disputes.Administrative power refers to public administrative services,controlling public resources such as the country’s finances and professional personnel.The complexity of modern public affairs requires administrative power to have unilateralism and initiative under the theory of high-power administration,and moreover,it needs to have the characteristics of enthusiasm and negotiation under the theory of service administration.The above advantages meet the needs for timely,effective and professional overall relief of ecological environmental damage,and should take the initiative to assume the first priority of ecological environmental damage relief obligations.The ideal responsibility method in the field of ecological environment damage relief is "restoration",but due to the systematic and open nature of the ecological environment and the limitations of the times of science and technology,it is almost impossible to restore the ecological environment to its original state.Ecological environment restoration can be used as a sub-optimal way to achieve effective relief of ecological environment damage.According to the result,whether ecological restoration is needed for ecological environmental damage,there are mainly seven different patterns,which can be abstracted into three types: those that can implement restoration relief,those that do not involve restoration but can be compensated,and those that are incapable of restoration and compensation.According to three different types of ecological environmental damage,the legal relief led by administrative power can be dealt with through administrative remedial relief,administrative private law compensatory relief and administrative remedial relief.The administrative remedial relief of ecological environment damage mainly deals with the ecological environment damage that can be repaired for relief.Administrative remedial relief is mainly realized through administrative orders,administrative law enforcement reconciliation,and environmental compensation projects.Administrative orders play an important role in timely intervention to contain damage and organize and implement restoration.However,through non-mandatory administrative methods of administrative reconciliation and compensation for environmental projects,a win-win game between ecological and environmental public welfare and personal benefits can be realized simultaneously,which is important for reducing enterprises.The cost of compliance has a positive effect on improving the compliance rate of enterprises,especially when it comes to cases where the cost of ecological restoration is relatively high,the Pareto optimal remedy of ecological environmental damage can be achieved through settlement or compensation of environmental projects.The administrative private law compensation relief for ecological environmental damage mainly deals with ecological environmental damage that only involves monetary compensation.According to the theory of administrative private law,the administrative power achieves the purpose of filling environmental public welfare damages by borrowing private law regulations.Administrative power is based on the procedural activities of private law in its form,and it is basically for the realization of public service obligations set by public law.In the face of cross-examination,the positioning of the ecological environment damage compensation system should be corrected,and the key relief only involves cases of monetary compensation.The basis of the government’s right to claim compensation is not in private law but in the public law that regulates its environmental and public welfare public affairs.By limiting the scope of the damage compensation system,all cases involving ecological environment restoration are resolved by administrative remedial relief methods,and judicial power is returned to trial.At the same time,the difficulty of court enforcement was solved once and for all.The administrative supplementary relief for ecological environmental damage is mainly used as a relief method to deal with the loss of the responsible subject and the unknown ecological environmental damage.In order to realize the comprehensive and integral relief of the public interest of the ecological environment,when there is no one to repair and no compensation,the state as the public trustee should undertake the supplementary obligation to avoid loopholes in the relief of the ecological public interest.However,in order to prevent the abuse of administrative supplements,the conditions for administrative supplementary measures should be clarified.For example,the above two remedies must be exhausted and the remedies cannot be activated before such remedies can be initiated.Through the three core measures of administrative remedy,compensation,and supplement,the administrative relief of ecological environmental damage can effectively realize the timely,professional and overall relief of ecological environmental public benefits,which meets the relief needs of ecological environmental damage.At the same time,through the effective integration of high-power administration theory and service administration theory,the new administrative relief path can reduce the frequency of government legitimacy crises from within.However,to overcome the government legitimacy crises requires external supervision,such as strengthening administrative public interest litigation.The way is alleviated.