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On Establishing The Mechanism Of Alternative Dispute Resolution Of Environmental Dispute In China

Posted on:2008-12-30Degree:MasterType:Thesis
Country:ChinaCandidate:Z Y WangFull Text:PDF
GTID:2166360215953445Subject:Environment and Resources Protection Law
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With the improvement of people's living standard and the environmental awareness, environmental problems have become a hot issue that people concerned. As more and more environmental disputes face to the courts limited judicial resources hardly to bear hot cases. However, as China has not yet to establish a sound mechanism for resolving environmental disputes and litigation, that's say ADR mechanisms, it made a lot of problems when solve the problems, so I chose this topic for exploration and research, aimed at scholars, the judiciary and environmentalists will pay attention to ADR mechanism and China's environmental disputes ADR mechanism will gradually consummate.The first chapter of the article outlines the environmental dispute settlement mechanisms.First of all, the first chapter analyses the concepts and features of the environmental disputes. Environmental disputes, also called hazard disputes."Hazard"first come from Japan means that the because of the daily activities of the humans that bring the environmental pollution and destruction media harm be destroyed. From the legal nature of the dispute, environmental disputes and civil disputes can be divided into the environment, environmental disputes and administrative environment criminal dispute. We usually refer called environmental disputes exactly the civil disputes. This paper is to discuss the ADR mechanism environment's civil disputes. Features include: environmental disputes and the complex causes of environmental disputes; the main object is environmental disputes and uncertainty; environmental community disputes; regional environmental disputes. Compared environmental disputes to other civil disputes involve extensive and complex, confliction and interest, technical and difficulty in handling characteristics. Environmental disputes to be taken seriously or it will make sharper and timely treatment. Otherwise, the dispute will further intensification of the contradictions that affect social stability, and does not help the development of environmental management. The difficult environment for the solution of disputes, in addition to its own characteristics, environmental dispute settlement mechanism is a more important aspect of the defect. Therefore, it is necessary to establish a diversified environmental disputes settlement mechanism.Secondly, the chapter also gives a dispute settlement mechanism. From the experience in the world, the environmental dispute resolution methods can be generally divided into two categories: litigation and non-litigation. Environmental litigation means the victim of environmental disputes to the courts. The courts handled the case through the courts. According to the fact that identified and recognized and in the name of the country, the courts make out the responsibility which the two parts must bear. Environmental disputes legal judgments or rulings made by the dispute settlement methods. The so-called non-litigation means all methods except of dispute resolution to resolve environmental disputes. There are mainly three ways: consultation, mediation and arbitration.Finally, through compared litigation and non-litigation settlement of environmental disputes, it shows that ADR mechanism is more simpler and easier. With flexibility in the application of standardized dispute settlement reached with the actual benefit, the agreement acceptable to both sides. In the executive branch of the parties under the auspices of the conditions under their own interests and carry out full consultation and transaction each make certain concessions, compromise, thus making it possible for both sides to the conflict from the tit-for-tat confrontation to a symbiotic mutually beneficial and win-win cooperation.The second chapter describes the paper ADR mechanism's legislation and practice in environmental disputes. This chapter is divided in three parts:The first part is the ADR mechanism for the selection and development of environmental disputes. ADR is applied to the field of environmental disputes in the 1960s, under economic globalization. ADR mechanism diversification theory is the ideological foundation of the creation of environmental disputes. The surge in environmental litigation and environmental litigation had provided an opportunity for the rapid development of its own limitations. ADR mechanism in the world, is not synchronous the development of environmental disputes. Due to limited space in this paper, I only take the United States as an example of ADR mechanisms in the development of environmental disputes. The United States can be said the modern movement and the main source of the practice of ADR, the United States is a multi-ethnic and multi-cultural country. This social structure is diversified diversify its dispute settlement mechanism favorable conditions. From the development of ADR has a practical exploration of theoretical knowledge from the institution-building process to this.Second respectively in the United States, Japan, South Korea, Taiwan's development and environmental disputes and ADR mechanisms to solve disputes, I took these as ADR mechanisms from environmental disputes.Part III describes the current situation of China's environmental problems and disputes ADR mechanisms. In China, the environmental dispute is the main provisions of Article 41 of the "Environmental Protection Law". It provisions relating to environmental liability and the amount of compensation disputes, "according to the request of the parties concerned. by the administrative departments in charge of environmental protection in accordance with laws and regulations or other exercise of the right of supervision and management departments; If they do not accept the decision of the parties to deal with to the people's court. The parties also can apply directly to the people's court "in the light of China's environmental legislation, I summed up this field of environmental disputes and the use of ADR in the following categories: consultation, mediation, administrative decisions, arbitration Petition, including mediation and conciliation administrative mediation.Environmental disputes through ADR mechanism: reference to the United States, Japan, Taiwan, South Korea ADR system from environmental disputes. Meanwhile, look at China's development of environmental disputes and ADR. Environmental disputes ADR system is found many shortcomings: lack of environmental legislation to resolve disputes; without an independent dispute settlement body. Environmental Arbitration systems have not been set up; not empowered to enforce the validity of administrative decisions; ADR less than the legal effect of environmental disputes.Finally, the third chapter discuss to improve our environmental disputes ADR mechanisms. By drawing on the experience of advanced countries and analyzing of the actual situation of China, it updated from the concept to solve environmental disputes, strengthen the resolve environmental disputes legislation and establish environmental disputes and arbitration agencies, environmental administrative decisions not to pursue the administrative organs, ADR clear the legal effect of these areas showed improve our system of environmental disputes and ADR it's hope to eventually resolve environmental disputes diversified situation eventually.
Keywords/Search Tags:Environmental
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