Construction Engineering Environmental Capital Law Review (No. 30). The similarities and differences between compensation for ecological environmental damage and public interest litigation by procuratorates and environmental protection organizations.

Published:

2021-11-05

The construction of ecological civilization is a long-term plan related to the well-being of the people and the future of the nation. Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping at the core has always placed the construction of ecological civilization in a prominent position, repeatedly emphasized that green water and green mountains are golden mountains and silver mountains, and adopted various measures to comprehensively strengthen ecological environmental protection and ecological civilization construction. What is particularly important is that in recent years, the CPC Central Committee and the State Council have tried out a compensation system for ecological and environmental damage nationwide; procuratorial organs have persisted in trying and exploring in the field of public interest litigation for many years, and have established a procuratorial public interest litigation system with ecological and environmental protection as the main content through the authorization of the National people's Congress and the revision of relevant laws. Institutional origin 1. Procuratorial public interest litigation system In order to strengthen the protection of national interests and social public interests, in recent years, procuratorial organs have taken the lead in the attempt and exploration of public interest litigation in the fields of ecological environmental protection, food and drug safety, which has produced positive social effects. On June 27, 2017, the 28th meeting of the Standing Committee of the 12th National People's Congress voted and passed the decision on amending the the People's Republic of China Civil Procedure Law and the the People's Republic of China Administrative Procedure Law. The public interest litigation initiated by the procuratorial organ was clearly written into these two laws. This indicates that China has formally established the system of public interest litigation by procuratorial organs in the form of legislation. 2, the ecological environment damage compensation system. In November 2015, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued the "Pilot Program for the Reform of the Ecological Environment Damage Compensation System" (Zhongban Fa [2015] No. 57). With the approval of the State Council, the governments of 7 provinces (municipalities directly under the Central Government) including Jilin are authorized as the right holders of compensation for ecological environment damage within their administrative regions to carry out pilot reforms of the ecological environment damage compensation system. Two years later, the ''Ecological Environment Damage Compensation System Reform Program'' was issued, stipulating that starting from January 1, 2018, the ecological environment damage compensation system will be piloted nationwide, clarifying the scope of ecological environment damage compensation, the subject of responsibility, the subject of claims, and damage compensation. Ways to solve, etc., and form a corresponding appraisal and evaluation management and technical system, financial guarantee and operation mechanism, and gradually establish a restoration and compensation system for ecological environmental damage, accelerate the construction of ecological civilization. Difference between the two 1. Different in nature The public interest litigation of the procuratorial organ is the application of judicial power and has the relevant characteristics of civil and administrative litigation. The system of compensation for damage to the ecological environment, in which the administrative body is the subject of rights, mainly belongs to the category of administrative power, emphasizing how to use administrative means to solve the problems of compensation and restoration of damage to the ecological environment. The ecological environment damage compensation system requires the government and relevant departments to directly carry out investigation, appraisal and evaluation, compensation consultation, litigation, supervision and implementation and other ecological environment damage compensation work. 2. The main body of the plaintiff is different The plaintiff subject of environmental civil public interest litigation initiated by social organizations is a social organization that is registered with the civil affairs department of the people's government at or above the city level divided into districts in accordance with the law, and has specialized in environmental protection public interest activities for more than five consecutive years and has no illegal record; The plaintiff subject of environmental public interest litigation brought by the procuratorial organ is the procuratorial organ; The main body of the plaintiff in the ecological environment damage compensation lawsuit is the provincial and municipal governments (including the district and county governments under the jurisdiction of the municipality directly under the Central Government) and their designated departments or institutions. 3, the defendant subject is not exactly the same The defendant subject of environmental civil public interest litigation brought by social organizations is the civil subject that pollutes the environment, destroys the ecology and harms the public interest of the society; The main body of the defendant in the ecological environment damage compensation lawsuit is the compensation obligor, that is, the unit or individual that violates the laws and regulations and causes the ecological environment damage, but each region can expand the scope of the ecological environment damage compensation obligor according to the need, and put forward relevant legislative proposals; The defendant subject of environmental civil public interest litigation initiated by the procuratorial organ is the same as the civil public interest litigation initiated by social organizations, but the environmental administrative public interest initiated by the procuratorial organ is aimed at the administrative organ with the responsibility of supervision and management to illegally exercise its functions and powers or omission, resulting in the infringement of national interests or social public interests, Therefore, the defendant subject of environmental administrative public interest litigation initiated by the procuratorial organ is the administrative organ. 4, the scope of application is not exactly the same The scope of application of environmental public interest litigation initiated by social organizations, environmental civil public interest litigation initiated by procuratorial organs, and ecological environmental damage compensation litigation is generally inclusive or overlapping, and they are all applicable to environmental pollution or ecological damage that harms the public interest of society. Subject behavior. The scope of application of administrative public interest litigation initiated by procuratorial organs is only applicable to administrative acts that illegally exercise their functions and powers or omission by administrative organs responsible for supervision and management, resulting in infringement of national interests or social public interests, covering many fields, such as ecological environment and resource protection, food and drug safety, protection of state-owned property, transfer of state-owned land use rights, and so on. The system of compensation for damage to the ecological environment is limited to the field of ecological environment protection. 5, the prosecution time and conditions are different. According to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Environmental Civil Public Interest Litigation Cases, social organizations can deal with environmental pollution and ecological damage that have harmed the public interest or have a major risk of harming the public interest. File an environmental public interest lawsuit. Therefore, in the time of prosecution, social organizations can bring environmental public interest litigation before the damage occurs or after the damage occurs. In terms of prosecution conditions, social organizations can file environmental public interest litigation under the condition that social public interest damage has occurred, or although the damage has not occurred, it has a significant risk of damaging social public interest. According to the "Pilot Program for the Reform of the Ecological Environment Damage Compensation System", first of all, the ecological environment damage compensation litigation must start in time after the ecological environment damage occurs. Secondly, the ecological environment damage compensation litigation has the pre-procedure of consultation, that is, after the ecological environment damage occurs, the compensation right holder should organize and carry out the ecological environment damage investigation, identification and evaluation, and the preparation of restoration plan, and according to the ecological environment damage identification and evaluation report First, negotiate with the compensation obligor to reach a compensation agreement. Only when the two parties negotiate on the ecological environment damage compensation but fail to reach an agreement, only the right holder of compensation and the department or institution designated by it have the right to file a civil action for compensation for ecological environmental damage. For the environmental civil public interest litigation initiated by the procuratorial organ, after the procuratorial organ discovers the behavior that harms the public interest in the performance of its duties, the procuratorial organ can only bring a lawsuit to the people's court if there is no organ and organization prescribed by law to sue, or if the organ and organization prescribed by law does not sue. For the environmental administrative public interest litigation initiated by the procuratorial organ, after discovering the behavior that harms the public interest of the society, the procuratorial organ should first put forward procuratorial suggestions to the administrative organ to urge it to initiate civil public interest litigation and perform its duties in accordance with the law. Only under the condition that the administrative organ fails to perform its duties according to law, the procuratorial organ should bring a lawsuit to the people's court according to law. 6, the litigation request is different. In the environmental civil public interest litigation filed by social organizations and the environmental civil public interest litigation filed by procuratorial organs, because the defendants are all civil subjects that cause environmental pollution or ecological environmental damage, the litigation claims are similar. Generally, the defendants are required to stop the infringement and eliminate Danger, restore to the original state, compensate for the cost and loss of ecological environment restoration, publicly apologize, and pay legal fees and litigation fees. For the environmental administrative public interest litigation initiated by the procuratorial organ, because it is aimed at the administrative act that the administrative organ fails to exercise its functions and powers or omission according to law, resulting in the infringement of national interests or social public interests, the litigation request of the procuratorial organ generally requires the administrative organ to perform its duties in accordance with the law. In the ecological environment damage compensation litigation, from the current practice of China's ecological environment damage compensation litigation cases, although the provincial, municipal and prefecture-level governments as the ultimate goal of compensation rights holders is to repair the damaged ecological environment, but considering the ecological environment damage compensation litigation is the compensation rights holders and compensation obligors in the pre-litigation consultation procedure for a series of issues such as repair and liability to bear no agreement before the lawsuit, therefore, the right holder's claim against the defendant in the ecological environmental damage compensation litigation mainly focuses on the defendant to pay the ecological damage repair costs and attorney's fees and litigation costs, so as to carry out alternative repair. 7. Different means to achieve the goal Although the ultimate goal of environmental public interest litigation and ecological environmental damage compensation litigation filed by different subjects is to prevent the ecological environment and other national interests and social public interests from being damaged, the focus of the three litigation systems, that is, the means to achieve the goal, is different. Public interest litigation initiated by social organizations focuses on achieving the ultimate goal by imposing civil sanctions on civil subjects that harm the public interest of society, and by providing relief or repair to the damaged or destroyed environment; Ecological environmental damage compensation litigation focuses on the repair of ecological environmental damage that has occurred by urging provincial and municipal governments to consult with the obligor for compensation and filing a lawsuit; The procuratorial organ's environmental public interest litigation focuses on ensuring and urging the administrative organ to exercise its power according to law through legal supervision and restriction on the administrative acts made by the administrative organ, so as to prevent the damage of national interests and social public interests. Two links 1. Mutual support According to the "Ecological Environment Damage Compensation System Reform Plan", the provincial, municipal and prefectural governments, as the right holders of compensation, find that the ecological environment damage needs to be repaired or compensated after investigation, and no agreement is reached after consultation with the compensation obligor, the provincial, municipal and prefectural governments and their designated departments or agencies shall promptly file a civil lawsuit for compensation for ecological environment damage. At the same time, according to Article 55 of the Civil procedure Law, organs and relevant organizations prescribed by law may bring a lawsuit to the people's court for acts that pollute the environment and infringe upon the legitimate rights and interests of many consumers, and the people's procuratorate may support the prosecution. The "Ecological Environment Damage Compensation System Reform Plan" also clearly stipulates that the Supreme People's Procuratorate is responsible for guiding the procuratorial work related to ecological environment damage compensation. When procuratorial organs initiate public interest litigation, especially civil public interest litigation, they also need the support and cooperation of relevant administrative organs in investigation and evidence collection, appraisal and evaluation, etc., in order to effectively perform their functions. 2. Complement each other The "Ecological Environment Damage Compensation System Reform Plan" limits the scope of compensation rights holders from the provincial government during the pilot period to the municipal and prefectural governments, but it still does not give the county and municipal governments the qualifications of compensation rights holders. At the same time, the "Eco-Environmental Damage Compensation System Reform Plan" also imposed certain restrictions on the scope of application, which is limited to "the occurrence of large and above environmental emergencies" and "designated in the national and provincial main functional area planning. There are three situations: key ecological function areas, prohibition of environmental pollution and ecological damage in development zones", and "other serious consequences affecting the ecological environment. If the scope of the impact of ecological environment damage fails to reach the severity of the above provisions, even if it causes damage to the local social and public interests, it can not be investigated for the responsibility of compensation for ecological environment damage according to the reform plan of ecological environment damage compensation system, and this phenomenon of ecological environment damage in local areas is just a common chronic disease in all parts of the country. In this case, only in accordance with the relevant provisions of the Civil Procedure Law, the procuratorial agency can support the "organs and related organizations prescribed by the law", or initiate civil public interest litigation on its own, and fully perform the public interest litigation functions through the procuratorial agency to make up for the above-mentioned system design. The blank caused by the restrictions. In addition, when the compensation right holder is negligent in performing his duties, the procuratorial organ can urge him to actively perform his duties by means of procuratorial suggestions, and jointly promote the compensation and restoration of ecological environment damage.

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