海洋生态环境损害赔偿的新问题及其解释论

The New Issue and Its Theory Based On the Interpretation Of Marine Environmental Damage

无论是对海洋环境要素的污染或破坏,还是因污染或破坏造成的海洋生态系统功能退化,都可归结为广义的海洋环境领域的"公益损害",即海洋生态(环境)损害。海洋生态利益是海洋生态(环境)损害赔偿请求权的利益基础,但是,在现行法尚未对海洋生态利益作出规定的情况下,需要确定由国家依据其法定责任率先提出赔偿要求,主张以修复受损的海洋生态(环境)为优先考虑的责任形式,以承担生态(环境)修复费用为替补责任形式。同时,由环保组织提起的公益诉讼与之配合,形成社会驱动、政府保障的法律救济机制,全面维护海洋生态利益。

Whether the damage to marine environmental elements,or the degeneration of marine ecological functions caused by pollution,we can classify both the damages as the＂damage of public interest of marine environment＂,which is called marine environmental damage. The marine ecological interest is the foundation of right to claim the compensation of marine environmental damage,however,under the circumstance that there are no regulations of marine ecological interest at present,the official agencies should submit a claim for compensation firstly for their statutory duties to preserve the state ’s marine rights and interests,which means they should consider repairing the damaged marine environment as the prior liability form,or having the polluter to burden the rehabilitation expense as the complementary form to deal with the current situation of marine environmental damage.Meanwhile,we should promote the cooperation of the state’s claims and the public litigation initiated by environmental organizations,and set up a legal remedy institution engineered by the public and guaranteed by the government step by step.