矿业环境行政责任的构建与实现

The Construction and Implementation of Mining Environmental Administrative Responsibility

行政监管不力是矿业开发中污染和破坏环境的重要原因。关于政府监督与管制矿业环境利用的义务,以及未能履行监督与管制义务应承担法律责任的制度安排显得稀缺。矿业立法应为矿业环境行政法主体在矿业市场准入、进入矿业市场的开发以及矿山企业退出市场等全程设定环境保护义务,不履行法定或约定义务则承担不利的法律后果。矿业环境行政责任的构建中应充分考虑制裁率,使制裁效果正确反映违法行为人的预期违法成本而迫使其履行义务。义务设定及违反义务的责任认定,都需要付诸于实现才能达到立法目的。

Lack of administrative supervision is an important reason of the pollution and damage to the environment in the mining development. Government＇s obligations of supervision and control on mining environment utilization, and government failing to fulfill the obligations of supervision and regulation should be liable for institutional arrangements are scarce. Mining legislation should be set for environmental protection obligations for the subject of mining environmental administrative law in mining market access, entering into the de- velopment of the mining market and mining enterprises＇ withdrawal from the market. If their obligations are not fulfilled they should bear the adverse legal consequences. Sanctions rate should be fully considered in mining environmental administrative responsibility, so that the effect of sanctions correctly reflects the misfeasors＇ expected cost of illegal activities and force them to fulfill their obligations. Establishment of obligations and confirmation of breach of obligation need putting in the reality to achieve the legislative purpose.