Construction Environmental Capital Law Review (No. 24)... Three key points to improve the ecological environment damage compensation system.
Published:
2021-09-23
The compensation system for damage to the ecological environment is a new thing in the reform of the ecological civilization system. In recent years, especially since the implementation of the "Several Provisions of the Supreme People's Court on the Trial of Compensation Cases for Ecological and Environmental Damage (Trial)" (hereinafter referred to as the "Several Provisions"), local courts have actively carried out trial work and accumulated useful experience. Environmental violations often trigger administrative, criminal and civil liability at the same time. The author believes that the people's courts should hear eco-environmental damage compensation cases within the civil litigation system, clearly advocate the prerequisites for eco-environmental damage compensation, the specific circumstances of the application of eco-environmental damage compensation, and the jurisdiction level of judicial confirmation of the consultation agreement, so as to achieve coordination without mixing, taking into account the laws of judicial operation and the needs of eco-environmental protection, and constantly develop and improve the eco-environmental damage compensation system. A clear claim to the ecological environment damage compensation preconditions. For illegal and criminal acts that damage the ecological environment, the legal path to investigate the responsibility of the relevant subjects for restoration is not limited to civil compensation, but can also be achieved through administrative law enforcement, including administrative penalties, administrative orders and the implementation of administrative performance. Article 50 of the Administrative Compulsory Law establishes the administrative performance system, the Water Pollution Prevention and Control Law, the Solid Waste Pollution Prevention and Control Law, the Soil Pollution Prevention and Control Law, the Radioactive Pollution Prevention and Control Law, the Forest Law, the Grassland Law, the Flood Control Law, the Water and Soil Conservation Law, and the Sea Area Use Management Law There are also relevant specific provisions in separate environmental resource laws. For example, Article 79 of the Law on the Prevention and Control of Environmental Pollution by Solid Waste stipulates that units that produce hazardous waste shall store, utilize, and dispose of hazardous waste in accordance with relevant national regulations and environmental protection standards, and shall not dump or stack them without authorization. Article 113 stipulates that in violation of the provisions of this law, if a hazardous waste generator fails to dispose of the hazardous waste generated by it in accordance with the regulations and refuses to make corrections after being ordered to make corrections, the competent department of ecology and environment shall organize the disposal on behalf of the hazardous waste. The generator shall bear; if he refuses to bear the disposal expenses, he shall be fined not less than one time but not more than three times the disposal expenses. Based on the principle of administrative law that "law cannot be done without authorization and legal duties must be done" and the requirements of modern environmental governance system of "government-led and administrative priority", and in view of the fact that administrative organs claim civil rights as the "dual identity" of the right holder and the subject of law enforcement, it may lead to the untrue expression of the intention of the obligor of compensation. Specifically, the administrative agency has investigated the administrative legal liability of the compensation obligor in accordance with the law, and there are litigation claims that cannot be covered by the administrative legal liability (such as service function loss, appraisal and evaluation fees, etc.), before applying for confirmation of the compensation negotiation agreement or filing an ecological environment Damage compensation lawsuit. In other words, the administrative agency claims compensation for ecological damage through civil litigation procedures, and it should be based on the premise of exhausting administrative law enforcement methods. II. Clarify the specific circumstances under which compensation for damage to the ecological environment is applicable According to the scope of application determined by the "Eco-Environmental Damage Compensation System Reform Plan", the "Several Provisions" stipulate three situations in which compensation for ecological environmental damage can be claimed, that is, major, and particularly major environmental emergencies occur; environmental pollution and ecological damage events occur in key ecological function zones and prohibited development zones designated in the provincial main function zone planning; other serious consequences affecting the ecological environment occur. Among them, combined with the specific content of the first two situations, as well as the system design of the "Several Provisions" on the subject qualification of the right holder, the level of jurisdiction of litigation cases and the composition of the trial organization, the third situation should be equivalent to the first two situations. That is, it belongs to a more serious environmental pollution and ecological damage incident. Therefore, the third situation can be clearly defined as "other serious situations such as crimes of destroying the protection of environmental resources that cause serious consequences", in order to save limited judicial resources and maintain the seriousness of the ecological environment compensation system. Third, clarify the jurisdictional level of judicial confirmation of the consultation agreement. According to the current legal provisions, it is confirmed that the mediation agreement case shall be under the jurisdiction of the grass-roots court and the judge shall be heard alone. The first paragraph of Article 20 of the "Several Provisions" stipulates that after consultation, an agreement on compensation for ecological environmental damage may be applied to the people's court for judicial confirmation. However, the provision does not clarify the level of jurisdiction, there is no unified understanding in practice, and there is a parallel practice of jurisdiction between the middle and grass-roots courts. The author believes that the judicial confirmation cases of the negotiation agreement under the jurisdiction of the middle and grass-roots courts have their own advantages and disadvantages. The jurisdiction of intermediate courts can better adapt to the professional and technical, stakeholder, and complex characteristics of environmental and resource cases, but it may conflict with the relevant provisions of the special procedures of civil litigation. The jurisdiction of grass-roots courts is basically compatible with the Civil procedure Law, but the deficiency lies in the lack of specialized judicial institutions and professionals, and judges may only conduct formal examination, which is not conducive to safeguarding national interests and social and public interests. It is worth noting that in recent years, local courts have actively promoted the construction of specialized institutions for environmental resource trials, showing a development trend of "high courts are generally established, and middle-level courts are established on demand". More and more grassroots courts are integrating trial resources. The establishment of full-time and part-time environmental resource trial institutions in various ways has laid a practical foundation for the performance of ecological environment judicial protection functions. Under the condition that the construction of environmental resources trial institutions in grass-roots courts is becoming more and more perfect, it can be made clear that the negotiation agreement judicial confirmation is under the jurisdiction of the grass-roots courts, and should generally be handled by specialized environmental resources trial institutions, which not only ensures the quality and efficiency of case handling, but also avoids impacting the civil litigation system. (Source: People's Court, author: Hubei Higher People's Court)
The compensation system for damage to the ecological environment is a new thing in the reform of the ecological civilization system. In recent years, especially since the implementation of the "Several Provisions of the Supreme People's Court on the Trial of Compensation Cases for Ecological and Environmental Damage (Trial)" (hereinafter referred to as the "Several Provisions"), local courts have actively carried out trial work and accumulated useful experience. Environmental violations often trigger administrative, criminal and civil liability at the same time. The author believes that the people's courts should hear eco-environmental damage compensation cases within the civil litigation system, clearly advocate the prerequisites for eco-environmental damage compensation, the specific circumstances of the application of eco-environmental damage compensation, and the jurisdiction level of judicial confirmation of the consultation agreement, so as to achieve coordination without mixing, taking into account the laws of judicial operation and the needs of eco-environmental protection, and constantly develop and improve the eco-environmental damage compensation system.
1Clearly advocate the prerequisite for compensation for damage to the ecological environment.
For illegal and criminal acts that damage the ecological environment, the legal path to investigate the responsibility of the relevant subjects for restoration is not limited to civil compensation, but can also be achieved through administrative law enforcement, including administrative penalties, administrative orders and the implementation of administrative performance. Article 50 of the Administrative Compulsory Law establishes the administrative performance system, the Water Pollution Prevention and Control Law, the Solid Waste Pollution Prevention and Control Law, the Soil Pollution Prevention and Control Law, the Radioactive Pollution Prevention and Control Law, the Forest Law, the Grassland Law, the Flood Control Law, the Water and Soil Conservation Law, and the Sea Area Use Management Law There are also relevant specific provisions in separate environmental resource laws. For example, Article 79 of the Law on the Prevention and Control of Environmental Pollution by Solid Waste stipulates that units that produce hazardous waste shall store, utilize, and dispose of hazardous waste in accordance with relevant national regulations and environmental protection standards, and shall not dump or stack them without authorization. Article 113 stipulates that in violation of the provisions of this law, if a hazardous waste generator fails to dispose of the hazardous waste generated by it in accordance with the regulations and refuses to make corrections after being ordered to make corrections, the competent department of ecology and environment shall organize the disposal on behalf of the hazardous waste. The generator shall bear; if he refuses to bear the disposal expenses, he shall be fined not less than one time but not more than three times the disposal expenses.
Based on the principle of administrative law that "law cannot be done without authorization and legal duties must be done" and the requirements of modern environmental governance system of "government-led and administrative priority", and in view of the fact that administrative organs claim civil rights as the "dual identity" of the right holder and the subject of law enforcement, it may lead to the untrue expression of the intention of the obligor of compensation. Specifically, the administrative agency has investigated the administrative legal liability of the compensation obligor in accordance with the law, and there are litigation claims that cannot be covered by the administrative legal liability (such as service function loss, appraisal and evaluation fees, etc.), before applying for confirmation of the compensation negotiation agreement or filing an ecological environment Damage compensation lawsuit. In other words, the administrative agency claims compensation for ecological damage through civil litigation procedures, and it should be based on the premise of exhausting administrative law enforcement methods.
2Clarify the specific circumstances in which compensation for damage to the ecological environment is applicable.
According to the scope of application determined by the "Eco-Environmental Damage Compensation System Reform Plan", the "Several Provisions" stipulate three situations in which compensation for ecological environmental damage can be claimed, that is, major, and particularly major environmental emergencies occur; environmental pollution and ecological damage events occur in key ecological function zones and prohibited development zones designated in the provincial main function zone planning; other serious consequences affecting the ecological environment occur. Among them, combined with the specific content of the first two situations, as well as the system design of the "Several Provisions" on the subject qualification of the right holder, the level of jurisdiction of litigation cases and the composition of the trial organization, the third situation should be equivalent to the first two situations. That is, it belongs to a more serious environmental pollution and ecological damage incident. Therefore, the third situation can be clearly defined as "other serious situations such as crimes of destroying the protection of environmental resources that cause serious consequences", in order to save limited judicial resources and maintain the seriousness of the ecological environment compensation system.
3Clarify the jurisdictional level of judicial confirmation of the consultation agreement.
According to the current legal provisions, it is confirmed that the mediation agreement case shall be under the jurisdiction of the grass-roots court and the judge shall be heard alone. The first paragraph of Article 20 of the "Several Provisions" stipulates that after consultation, an agreement on compensation for ecological environmental damage may be applied to the people's court for judicial confirmation. However, the provision does not clarify the level of jurisdiction, there is no unified understanding in practice, and there is a parallel practice of jurisdiction between the middle and grass-roots courts.
The author believes that the judicial confirmation cases of the negotiation agreement under the jurisdiction of the middle and grass-roots courts have their own advantages and disadvantages. The jurisdiction of intermediate courts can better adapt to the professional and technical, stakeholder, and complex characteristics of environmental and resource cases, but it may conflict with the relevant provisions of the special procedures of civil litigation. The jurisdiction of grass-roots courts is basically compatible with the Civil procedure Law, but the deficiency lies in the lack of specialized judicial institutions and professionals, and judges may only conduct formal examination, which is not conducive to safeguarding national interests and social and public interests. It is worth noting that in recent years, local courts have actively promoted the construction of specialized institutions for environmental resource trials, showing a development trend of "high courts are generally established, and middle-level courts are established on demand". More and more grassroots courts are integrating trial resources. The establishment of full-time and part-time environmental resource trial institutions in various ways has laid a practical foundation for the performance of ecological environment judicial protection functions. Under the condition that the construction of environmental resources trial institutions in grass-roots courts is becoming more and more perfect, it can be made clear that the negotiation agreement judicial confirmation is under the jurisdiction of the grass-roots courts, and should generally be handled by specialized environmental resources trial institutions, which not only ensures the quality and efficiency of case handling, but also avoids impacting the civil litigation system.
(Source: People's Court, author: Hubei Higher People's Court)
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