环境公私协作:契约行政理路与司法救济进路

Environmental public-private partnership: The theoretical route of contract administration and judicial relief approach

环境公私协作通过在公共部门与私人部门之间引入责任共担、风险分担、互利互倚的合作契约机制的建立,旨在引入社会资本,推进对环境污染、生态破坏的治理以及增进环境公共产品、公共服务供给,它体现了环境行政从传统的监督管理行政到契约行政的法理拓展与机制创新。环境公私协作契约在法律性质上属于环境公益目标导向下的行政契约,并具有公法性和私法性并存、行政目的性和契约合意性兼具的特点。依据环境公私协作契约中契约合意与行政权力优位顺序的差异以及所占比重的不同,可将其类型化为私法性环境公私协作契约和公法性环境公私协作契约。司法救济是环境公私协作法治化、规范化不可或缺的环节,私法性环境公私协作契约以传统的民事诉讼为主要司法救济途径,而公法性环境公私协作契约的司法救济,则可根据具体纠纷起因而选择适用行政诉讼或行政附带民事诉讼。此外,环境公私协作契约行政追求的环境保护公益目标,也为环境公益诉讼司法救济机制的引入提供了必要性基础。

By means of contractual agreement based on the acceptability of burden sharing, risk pooling and mutual benefits, the efficacy of environmental public-private partnership（ EPPP） to control environmental pollution, improve ecological environment and supply environmental public goods and services has been paid much attention in environment protection area. The contract between government and private sections is the legal basis and core of EPPP, which also fully reflects the legal theory expansion and mechanism innovation of environmental administration from traditional supervision administration to contract administration. Due to EPPP contract’s attributes of both administrative orientation and contract desirability： both public nature and private nature, the legal regulation and judicial remedy of EPPP contract is also featured by a duality： public principles and rules private spirits and specifications. Combined with the fact that EPPP contract is essentially an administrative contract under the environmental public welfare guiding, judicial remedy is an indispensable part of legalization of EPPP.According to the different priorities of consensus and power in different EPPP contracts, the contracts could be classified to two types： the private EPPP contract and the administrative EPPP contract. The former mainly depends on civil litigation to settle disputes while the later resorts to means of administrative litigation or administrative litigation incidental civil action. In addition, the attribute of pursuing environmental public benefits of EPPP contracts also makes it possible to introduce environmental public welfare litigation as a new sort of judicial relief mechanism for EPPP contracts.