中国资源法律规制的演进、评价与展望

Review and Evaluation of Natural Resource Legal Regulation in China

资源法律规制、规划规制、标准规制和指标规制构成资源规制的基本体系,其中资源法律规制是最高层次的规制,规制效力最强。本文在对资源法律规制的规制主体、规制内容和规制强度的演进历程进行梳理的基础上,将建国以来中国资源法律规制分为四个阶段:起源阶段(1949年-1966年)、停滞阶段(1967年-1976年)、起步阶段(1977年-2000年)和拓展提升阶段(2000年-)。研究认为,目前中国的资源法律规制存在诸多问题:资源法律规制体系尚未建立,缺乏系统性的自然资源基本法;规制主体繁多,但是缺乏独立的规制主体;惩罚性手段多,奖励性手段少;规制内容不全面、不协调,存在规制交叉、重叠和冲突的情况;规制结果考核有效性不足,缺乏对规制者的规制。未来,中国应从完善资源法律体系、明确资源法律规制主体及其责任、提高资源法律规制的强度、实现资源规制手段的多元化等方面建立健全中国资源法律规制体系。

Regulation through laws, plans, standards and control indicators constitute the basic framework of natural resource regulation. Natural resources regulation through law is the strongest regulator of regional economic development and so it is essential to review its evolution and provide a theoretical and practical basis for making and executing resource regulatory policy in the future. According to the evolution of regulatory subjects, content and intensity, four stages of natural resources regulation have been conducted across China since 1949. Sporadic laws from 1949 to 1966 can be regarded as prototypes and sources of resource regulation by modern means. When the Cultural Revolution commenced, the regulation of resources through law was suspended and paralyzed. Under the market economy of 1977, the regulation of resources re-commenced. In the 20 years that followed, a great many laws were issued, covering all kinds of natural resources. In modern times, resource regulation through law has been dramatically extended and promoted. On average, six pieces of legislation or regulation were issued each day in 2006. Though remarkable achievements have occurred in the past 60 years, conspicuous shortcomings remain. In general, a comprehensive system of resource regulation through law has not been established in China because of the absence of an integrated natural resources legal framework. Though a multitude of regulatory bodies have administrative power to regulate natural resources, independent ones are rare and this has lowered the executive efficiency of resource regulatory policy. An excess of punishment is unable to stimulate positive natural resource protection effectively. Incomplete and uncoordinated regulatory contents result in crossed and overlapping domains and conflict among resource regulation legislation. More than that, an imbalance of regulatory intensity among natural resources remains serious. For example, regulations on land and water are stricter than others. A lack of validity and no regulation of regulators means that the continuity of different policies is affected. Much work is required to improve the regulatory quality of legislative resource regulation, including the development of an integrated resources legal system, clarifying regulatory agencies and their responsibilities, increasing resource regulatory intensity, and diversifying regulatory mechanisms.