Damage compensation 丨 Promote the reform of the compensation system on the track of the rule of law

From comprehensive deepening reforms to comprehensively governing the country according to law, reform and rule of law, such as two wings of birds and two rounds of car, the two are indispensable. The implementation of ecological environmental damage compensation system is a major reform launched by the country. During the pilot of the reform, from the central to the local area, they attach great importance to the use of rule of law thinking and the rule of law. Therefore, since the pilot, the reform of the ecological environmental damage compensation system has achieved remarkable results in practice, and it has also provided valuable practical experience for relevant legislation in the future.

Compensation litigation rules are continuously improved

In August 2015, a company commissioned the 640 tons of waste acid liquid to produce 640 tons of waste acid liquid to the waste coal well. Two months later, another company poured the 23.7 tons of waste alkali to the same place by the same means. Due to severe chemical reactions in waste acid and waste alkali, four suspected illegal discharge of hazardous waste personnel were poisoned on the spot, and surrounding soil and groundwater were polluted. After investigation and appraisal, the case involved 6 companies.

After the major emergency environmental incident, the former departments designated by the compensation rights person to the former Shandong Provincial Department of Environmental Protection and the compensation obligations of the 6 enterprises involved in the case have been negotiated with 4 rounds of consultation and reached a compensation agreement with four of them. Because of the failure to negotiate with the above -mentioned companies, the former Shandong Provincial Department of Environmental Protection filed a lawsuit against the Jinan Intermediate People's Court. The request ordered the defendant to bear more than 230 million yuan, such as the loss of emergency response costs, the functional loss of ecological environmental service, and compensation for ecological environmental damage.

In this case, the claiming department used two ways to claim two ways and litigation, and timely repaired the ecological environment in a timely manner. The case was not only selected as one of the top ten typical cases of ecological and environmental damage compensation for the Ministry of Ecology and Environment in 2020, but also one of the "five typical cases of the five typical cases of the reform of the Ecological Environmental Damage Compensation System Reform" issued by the Supreme People's Court in June 2019. The significance is evident.

The people's court is an important participant in the reform of the compensation system of ecological environment. The "Reform Plan for Ecological Environmental Damage Compensation System" (hereinafter referred to as the "Reform Plan") clearly requires and improves the rules of compensation litigation. In June 2019, on the basis of summing up the trial experience of various places, the Supreme People's Court issued the "Several Provisions on Hearing Ecological Environmental Damage Compensation Cases (Trial)" (hereinafter referred to as "Several Provisions"). In December 2020, the Supreme People's Court actively carried out the judicial interpretation and cleanup of the Civil Code, and promptly revised the "Several Provisions", providing the latest legal basis for the liability for the liability for the damage to the responsibility of the ecological environment.

Yu Wenxuan, director of the Institute of Environmental Resources Law, China University of Political Science and Law, told the "Environmental Economy" that the "Several Provisions" of the litigation subject, jurisdiction rules, proof liability, certification rules, liability methods, litigation connection, compensation agreement judicial judicial justice The confirmation and enforcement implementation issues have provided regulations, especially for the connection model of the convergence of compensation lawsuits and environmental civil public interest lawsuits of ecological environmental damage. Priority and order order solves the problem of poor connection between the two complaints in judicial practice, which will help unify the rules of the referee.

Qin Tianbao, director of the Institute of Environmental Law of Wuhan University, mentioned that the "Several Provisions" implemented a reform intention to ensure that the damaged ecological environment was repaired in a timely and effective repair. In the specific trial, highlighting the restoration of the damaged ecological environment is the primary responsibility of the responsible person, and the principle of priority is clarified. In the enforcement of enforcement, the referee and the judicial confirmation of the compensation agreement confirmed by the judicial confirmation of the ecological environmental damage compensation agreement was clarified. The implementation of relevant departments and institutions to ensure that the damaged ecological environment can be repaired in a timely manner, and the environmental protection tasks of "ecological restoration priority" are guaranteed to ensure the implementation of judicial practice.

"Since the implementation of the" Several Provisions ", it has played an important role in promoting the comprehensive implementation of the system of compensation for ecological environmental damage." Sun Youhai, Dean of Tianjin University Law School, noticed that in recent years, the case of ecological environmental damage compensation has increased significantly. At the same time, due to the "Several Provisions", the consultation was determined as a compulsory pre -procedure, and cases that successfully reached the consensus of the successful consultation increased significantly, which greatly accelerated the process of restoration of the ecological environment. Sun Youhai believes that the consultation procedure has greatly improved the case management efficiency, reduced administrative and judicial costs, and promoted the transformation of environmental management methods to refined, quantitatively, and standardized direction.

It is understood that in July 2021, the Supreme People's Procuratorate issued the "Rules for the Public interest proceedings of the People's Procuratorate", which further regulated the rules of the procuratorial organs participating in ecological environmental damage compensation litigation. If the right holder does not start the compensation procedure or fails to reach a negotiation, and does not file a lawsuit, the procuratorial organs shall file a public interest lawsuit; the procuratorial organs support the compensation right holder to file a lawsuit such as ecological environmental damage compensation lawsuits.

The functions of procuratorial organs continue to expand

Prior to the emergence of provincial and municipal government -level governments in 2018, the emergence of ecological environmental damage compensation lawsuits, the new environmental protection law implemented in 2015 gave eligible social organizations to the main qualifications of environmental public interest lawsuits. The public interest litigation case was mentioned by social organizations, which sounded the loud prelude to the new environmental protection law.

It was also in 2015 that the public interest lawsuit filed by the procuratorial organs began to pilot. In June 2017, the Standing Committee of the National People's Congress amended the Civil Procedure Law and the Administrative Procedure Law to formally establish a system of procuratorial public interest litigation, and implemented it on July 1. One of the most important areas of procuratorial public interest lawsuits is the field of ecological environmental protection. In the past two years, the highest prosecution has handled the damage to the ecological environment of the Wanfeng Lake Basin and the project damage project of the ecological environment of the South Four Lake Basin has achieved good results. Today, what responsibilities of the procuratorate in the ecological environmental damage compensation system? In January 2018, the relevant person in charge of the Civil Administrative and Procuratorate of the Supreme People's Procuratorate summarized when interpreting the "Pilot Plan": As the legal supervision authority of the country, the procuratorial organs will be based on the legal supervision function in the ecological environmental damage compensation system and through supervision of supervision and urging Prosecution, procuratorial suggestions, and public interest lawsuits have played a variety of performance methods, play a legal supervision and guarantee role, and cooperate with various subjects to jointly maintain a harmonious and beautiful ecological environment.

"Given that the procuratorial organs filed a public interest lawsuit as the last line of defense of public welfare protection, before filed a lawsuit, the relevant administrative agencies should be urged to perform legal supervision duties in accordance with the law or urge the government agencies and relevant social organizations stipulated in the" Pilot Plan "to file a lawsuit." This name The person in charge said that the administrative organ is the first responsible person to investigate the illegal acts of ecological environmental damage. In the ecological environmental damage compensation system, in addition to handling public interest litigation cases, the procuratorial organs also have the duties of litigation supervision on civil litigation trials and enforcement of compensation for ecological environmental damage.

It is based on such a responsibilities that Sun Youhai believes that during the previous consultation stage, the procuratorial organs can supervise whether the consultation procedure is started, the negotiation procedure and results are obviously improper. Maintenance of national interests or social welfare. If the administrative organs are negligible to perform their duties and improper performance of their national interests or social welfare, the procuratorate shall promptly express their opinions in order to ensure the orderly development of the consultation in accordance with the law. If the administrative organs fail to correct the errors on the spot, the procuratorial organs shall further issue procuratorial suggestions. If qualified, the administrative public interest litigation process shall also be started.

Qin Tianbao said that as a supporter and supervisor, the procuratorial organs objectively participated in compensation consultation, and provided legal opinions The compensation agreement has judicial authority and credibility. This is not only conducive to giving full play to the positive role of the consultation mechanism, improving the consultation mechanism, but also conducive to the connection between the compensation consultation and environmental public interest litigation of ecological environmental damage, and realize information sharing.

Some provinces and cities have clearly incorporated the consultation procedure into the scope of legal supervision, and the functions of procuratorial organs have gradually expanded in practice. Yu Wenxuan said that in March 2022, the "Regulations on the Connection of Ecological Environmental Damage Compensation and Procuratorate Charity Litigation Cooperation (Trial)" jointly issued by the Gansu Provincial People's Procuratorate and the Provincial Department of Ecology and Environment stipulated that the procuratorial organs may be the consultation process, A legal consultation agreement for the negotiation opinion and the intended ecological environmental damage compensation agreement will be provided; when the compensation right holder filed a litigation of ecological environmental damage compensation, the procuratorial organs can support the prosecution; The actor will negotiate and apply for judicial confirmation after forming a negotiation agreement.

Legislative curing reform results

As of the end of 2021, there have been about 11,300 cases of compensation for ecological environmental damage across the country, compared with the 27 cases during the initial pilot period, which has increased significantly. Sun Youhai believes that this shows that the improvement of legislation is very prominent in the advancement of reform. The achievements of the rule of law with "environmental valuation and damage and responsibility", and the achievements of the rule of law of ecological environmental damage compensation are worthy of recognition.

The most prominent achievements in this are the official codes for officially implemented in 2021, which specifically stipulates the responsibility mechanism for ecological environmental damage compensation. "The Civil Code clarified the results of the reform of the central ecological environmental damage system through basic laws, and increased basic systems such as the principles of responsibility and scope of compensation in the practice of reform into the law." The person in charge evaluated this, and the Civil Code established the physical rules of ecological environmental damage compensation, which laid the foundation for the content of ecological environmental damage compensation for the environmental protection law or the single -line law.

However, in the interview, Yu Wenxuan talked to reporters that there are also opinions that the liability for ecological environmental damage compensation should be responsible for public law, and it should not be based on private law specifications. The system and its accountability provide a standardized basis.

Sun Youhai proposed that the Civil Code, as the basic law of the autonomy of private law, is not a universal method of "everything". He believes that he should give full play to the unique role of environmental law and formulate a special "Ecological Environmental Damage Compensation Law" to make comprehensive and systematic legal norms on the relief of ecological environmental damage.

In addition, the revision of the 7 special laws such as soil pollution prevention and control, forest law, solid waste pollution environmental prevention, Yangtze River protection law, and wetland protection law all specifies the content of ecological environmental damage compensation. Sun Youhai noticed that, especially for the first time, the consultation procedure for the compensation of ecological environmental damage compensation for the first time was stipulated.

The achievements in the construction of the rule of law in the rule of law of the ecological environmental damage system are also reflected in the party's regulations. Article 24 of the "Provisions on the Work of Ecological Environmental Protection Inspection" formulated in June 2019 stipulates that if the inspection finds that the need for compensation for ecological environmental damage is required, the provincial government shall be transferred to the provincial government in accordance with relevant regulations. Among the 13 provincial -level ecological environmental protection inspections including Jilin, Xinjiang, Anhui, etc., they also specifically specifically stipulated the content of ecological environmental damage compensation. Local legislation has also made important breakthroughs. Recently, 21 provinces including Jilin, Jiangsu, Fujian, Sichuan, etc. When revised or introduced environmental protection regulations on relevant places, they clarified the liability for compensation for ecological environmental damage. There are also some provinces and cities to formulate the clauses of the liability for compensation for innovative ecological environment damage for special regional environment or special protection objects.

According to Qin Tianbao, the "China Capital Protection and Management Regulations" implemented in June 2020 specifically stipulated the liability for compensation for the ecological environmental damage in the waters of the Chinese 鲟 inhabitation. Similar to Shanghai, the "Jiangxi Provincial Migratory Bird Protection Regulations" implemented in January 2022 also stipulates the liability for compensation for migratory bird resources and their habitat ecological environment. The "Regulations on Geological Environmental Protection of the Xinjiang Uygur Autonomous Region" revised in 2020 specifically specifies the liability for ecological environmental damage compensation for relevant geological damage. The "Regulations on the Environmental Protection of Water Environmental Protection in the Hanjiang River Basin in Hubei Province" revised in 2021, for the water environment of the Hanjiang River Basin in Wuhan, it stipulates the liability for compensation for ecological environment damage. The "Regulations on the Protection and Repairing of Natural Forests in Shaanxi Province" implemented in January 2022 will innovate "natural forests" as individual protection objects, which stipulates that damage should be liable for compensation.

Several issues worth exploring

Legal nature of ecological environmental damage compensation litigation

Qin Tianbao said that compared with the legal nature of the negotiation agreement, there is a "civil contract theory" and "administrative contract theory" in the academic community. For the legal nature of ecological environmental damage compensation lawsuits, although the academic community has the dispute between public and private benefits, the mainstream views are currently considering its views on it. It should be a public interest litigation. As for the theoretical foundation positioned in public interest litigation, the controversy is large. Qin Tianbao introduced that there are "social public interest theory" and "state obligation theory" and "public property litigation theory" based on state ownership.

In Sun Youhai's opinion, the foundation of ecological environmental damage compensation is not a lawsuit that administrative organs have filed by the administrative agencies to protect their rights or strive for their own interests, but a lawsuit to achieve environmental interests shared by the whole people. However, at the same time, there is a special feature of ecological environmental damage compensation lawsuits, especially in terms of pre -procedures from environmental public interest litigation. Therefore, he believes that the litigation of ecological environmental damage compensation should be characterized into a special environmental public interest litigation.

How to avoid two types of lawsuits "collision"

The criminal attached civil public interest lawsuit and ecological environmental damage compensation litigation filed by the procuratorial organs. Due to the different nature of the two, there are certain problems in procedure connection. From time to time, the phenomenon of "collision" occurs in practice, which also wastes administrative resources and judicial resources. For how to avoid this, experts mentioned the pre -announcement procedure.

Yu Wenxuan said that the procuratorial organs found the clue of the case of ecological environmental damage during the criminal prosecution stage. They should timely notify the compensation right holder and urge them to actively perform their duties within a certain period of time. A person filed a lawsuit. Only when the right holder does not carry out ecological environmental damage compensation work within the prescribed period, the procuratorial organs can file a civil public interest lawsuit. Qin Tianbao also mentioned the establishment of a two -way transfer mechanism to strengthen the cooperation in the case.

The "Supreme People's Court, the Supreme People's Procuratorate on the Supreme People's Court and the Supreme People's Procuratorate on the People's Procuratorate's Criminal Civil Public interest lawsuit should perform the approval of the pre -announcement of the pre -announcement procedure" (hereinafter referred to as the "two high batches") clearly stated that "the People's Procuratorate mentioned that the People's Procuratorate filed a filed by the People's Procuratorate. Criminal and civil public interest lawsuits should be fulfilled to perform pre -claim announcements. For those who have not fulfilled pre -complaint announcements, the people's court should explain and inform the People's Procuratorate after the announcement of the announcement. "

"This batch clarifies the criminal attachment of civil public interest lawsuits to perform the pre -announcement procedure, but the legal level is low and still needs to be refined." Sun Youhai understands There is no other qualified subject to file a lawsuit, which shows that the litigation enthusiasm of other qualified subjects is not high, and on the other hand, it also highlights the poor practical effect of the pre -announcement procedure. Therefore, he suggested that in the future, the specific implementation measures for pre -announcement procedures for the pre -announcement procedure are clearly stipulated through legislation and the negative consequences that the procedure should assume.

How to implement the existing law

The damaged ecological environment is often difficult to repair. Only by paying the money to make a cost, can environmental violations pay a price, enhance the warning effect, so that potential illegal people can feel the strong deterrence, so that they will no longer take risks. "The so -called compensation, simply speaking, the elements of the compensation must be fully lost, and the amount of the compensation must be lost." Qin Tianbao believes that the law implementation should be compensated. First, it is necessary to refine and supplement the Civil Code specified by the Civil Code. The elements of compensation are more operable to the scope of compensation; the second is to improve the damage compensation appraisal and evaluation system, so that the amount of compensation amount is more scientific and comprehensive assessed; Violation companies take measures to "restrict and increase encouragement" to ensure the implementation of the amount of compensation for ecological environmental damage.

Sun Youhai added that in accordance with the Civil Code and the "Explanation of the Supreme People's Court on the Application of Punishment Compensation for Ecological Environment Infringement Disputes", it is difficult for the damaged ecological environment and its ecological service functions When the ability is completely lost, the illegal actor shall bear the corresponding compensation liability according to law; on the premise of meeting the legal conditions, punitive compensation can be applied to the case of ecological environment damage compensation cases.

The reform of the ecological environmental damage compensation system pays special attention to the priority of the responsibility for the restoration of the ecological environment, and requires that the ecological environment damage is difficult to repair or cannot be fully repaired, and can implement the "depletion of compensation" by implementing monetary compensation to replace repair. Essence Yu Wenxuan noticed that the management measures for the management methods of ecological environmental damage compensation from the central government to the local area will help better regulate the management and use of funds. At the same time, it is difficult to repair or not completely repair the ecological environment damage. The implementation of "dedication to compensation" is guaranteed.

To this day, this reform has made important breakthroughs in promoting national and local legislation, standardized lawsuits rules, and improvement of technical and funding guarantee. It can be considered that the national environmental environmental damage compensation system has been initially constructed. But it is undeniable that this system still needs to be improved, and the reform is still on the way.

"It is worth looking forward to the introduction of the" Regulations on the Management of Ecological Environment Damage Compensation "to a certain extent to strengthen the compilation of the Civil Code infringement liability compilation and the relevant provisions of the environmental protection law. Realize continuous acceleration, independent and special ecological environmental damage compensation standard systems and legal system establishment to be placed on the corner. "Qin Tianbao said.

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