Study On The Priority Compensation Of Government Responsibility For Soil Pollution Remediation

In the field of soil ecological protection,the increasingly severe soil pollution status and the high restoring cost are urging legislators focusing on this field to explore new theoretical and institutional supports for dividing the restoration responsibility of soil pollution,and meanwhile to adjust and reshape a new order in ecological environment.Under the basic principles on damage and beneficiary's responsibility in our environmental law,many problems in reality that the government pays for the enterprises' pollution can be avoided by the priority compensation-receiving system for government's soil pollution remediation responsibility.A guarantee mechanism for the government's soil pollution remediation responsibility should be established through giving them a prior right in some appropriate range after their cleaning up of the soil pollution,which can effectively prevent the responsibility of soil pollution being evolved into a unidirectional public-finances-relying responsibility of the government.With the advent of China's ecological civilization era,public health and soil ecological damage centered on ecological environment and public health have gradually attracted the attention of legislators,and led experts to explore the theory and system of soil pollution remediation responsibility.As for soil pollution,the government bears three different types of responsibilities.However,in many cases,because of the basis of public ownership of land ownership and the administrative management system in China at the present stage,the government often acts as a representative of the landowner to prevent the spread of soil pollution damage and to fulfill the state responsibility of cleaning and repairing contaminated soil.This responsibility makes the amount of land repair costs that the government spends is hard to recover.Faced with this dilemma and the undoubted public welfare characteristics of soil pollution problems,the government has almost lost the possibility of independent and free choice in practice due to the concerns about public health and environmental protection duties.Then the government becomes the “Silent payer” of soil pollution inevitably.What is even more tragic is that China's existing institutional level lacks an effective response to this problem,so the reality runs counter to the spirit of environmental law which we uphold.In order to implement the polluter burden principle better,the pollution remediation costs of polluters are avoided and passed on to the government and the public.Besides,in order to demonstrate the fairness and efficiency value in the environmental legal system,the priority compensation system should be introduced into the field of soil pollution prevention and restoration in China,and a guarantee mechanism for the state responsibility of the government should be constructed.The scope of responsibility and priority limitation are the core of the government's priority compensation system for soil pollution remediation,and it is related to the legitimacy of the government's priority status.Taking the preferential rights of the United States,the preferential rights of Japan,and the preferential compensation system for pollution cleanup costs in Taiwan as reference,China should grasp the meaning of priority on the basis of the responsibility of the state,and establish the government's soil pollution remediation responsibility priority compensation system under the priority principles of common interest,public interest,survival right and costly security right.Enable the government to pursue the soil pollution actors including their rights and obligations,and at the same time,the government has the right to claim for compensation from the soil stakeholders and the potential beneficiaries within a certain range.The pollution clean-up expenses incurred by the government in taking responsibility for soil remediation pollution are general priorities and are established on the debtor's entire property.The priority of government responsibility lies behind procedural costs,common debt and personal damage priority claims,but is given priority over labor claims and state taxes,as well as other general and ordinary claims of property-guaranteed claims.At the same time,in order to avoid the unlimited expansion of the government's responsibility for soil pollution remediation which may impede the rights of other creditors,the right to fight against the responsibility of soil pollution remediation of “the innocent third parties” was established,and the government's priority is reasonably limited in terms of reason,period,amount,retrospect,etc.