Study On The Legal Relief System Of Environmental Administrative Guidance In China

Economic development has made great strides with the reform and opening up 30 years in our country, while environmental problems have become serious. To deal with the problem of environment, Traditional way of mandatory environment administration played an important role. While, with the development of society, environmental problems become more and more serious, traditional way of mandatory environmental administration gradually appear disadvantages. In the new period, a new solution of environmental problems are needed, environmental administrative guidance has come into being. Environmental administrative guidance comes from the application of administrative guidance in the field of environmental protection, it firstly appeared in Japan after World Wall Ⅱ, then gradually extended to the whole world. Environmental administrative guidance is a kind of special administrative legal act, it is authoritative, not factual. So, environmental administrative guidance should be included in the scope of administrative litigation.Environmental Administrative guidance also can damage the relative people legitimate rights and interests, so it requires the perfect legal relief system of environmental administrative guidance. The legal relief of environmental administrative guidance is a kind of accountability to the environmental administrative subject, is a kind of disavowal to the effect of the environmental administrative guidance, and is a kind of relief to the relative people. The legal relief of environmental administrative guidance has its basic theory, such as the principle of unifying the rights and liabilities, the principle of protecting the trust and principle of no abuse of power. Our relief system of environmental administrative guidance is not perfect, the administrative procedure law, the administrative reconsideration law, the state redress law, the state compensation law and so on all lack the provision on the legal relief of environmental administrative guidance. In practice, our legal relief of environmental administrative guidance faces many problems, such as its scope and responsibility is not clear, it is lack of supervision and it is lack of the relief of relative people’ rights. In order to perfect our legal relief system of environmental administrative guidance, we investigate Japanese and American legal relief system, such as litigation system, the state redress system, complaint handling system in Japan, and the system judicial review. Through our investigation, we take the enlightenments, such as we should make the principle of unifying the rights and liabilities complement, we should also bring the environmental administrative guidance into the scope of administrative litigation, and perfect our system of letters and visits. Based on the above discussion, we put forward the suggestions to perfect our legal relief system of environmental administrative guidance. Firstly, we make the legislative mode and the contents of the legislation clear. Secondly, we also make the scope of legal relief of environmental administrative guidance, including the concrete environmental administrative guidance and the abstract environmental administrative guidance. Thirdly, we make the responsibility of environmental administrative guidance, and discuss it through the components of the liability, the liability of administrative subject and relative people. Lastly, we put forward the suggestion to perfect the relief way of environmental administrative guidance, such as expanding the scope of administrative proceeding and administrative reconsideration, and perfect the redress system and compensation system of environmental administrative guidance, and the system of letters and visits of environmental administrative guidance. This paper is divided into four parts.The first part, we discus the basic theory of the legal relief system of environmental administrative guidance, including the concepts and properties of environmental administrative guidance, the concepts and properties of legal relief of environmental administrative guidance, end the theory of the legal relief system of environmental administrative guidance.The second part, we discus the present situation of the legal relief system of environmental administrative guidance, including the legislation and the problems in practiceThe third part, we investigate the Japan and American legal relief system, and we get some enlightenment to perfect the system.The last part, we discus the perfection of our legal relief system of environmental administrative guidance, and put forward our suggestions, about legislation, the scope of relief, the legal liabilities, the way of relief and so on.