论利益博弈视域下环境污染第三方治理的义务分配

The Distribution in Obligation of Environmental Pollution Third-Party Governance Under the Perspective of Interest Game

环境污染第三方治理过程中,政府、排污企业和治污企业这三方主体各有利益,且三者之间均存在着良性和恶性两种关系,在此博弈的过程中,这三方主体都必须承担与其收益相当的积极义务,而当积极义务履行不能时,也必然承受相应的法律责任,厘清这三方主体的义务分配才能更好的发展这一模式。当前法律对环境污染第三方治理的主体义务分配没有明确的法律规定,不仅混淆了行政责任和民事责任,而且也导致设租寻租、利益合谋现象的出现,应结合《环境保护法》《合同法》《行政法》《侵权责任法》等法律、法规规定,构建符合我国实际情况的环境污染第三方治理义务分配制度,明确积极义务违反后的法律责任,建立健全义务监督制度。

In the process of the third-party participation in environmental pollution control, contains thine parties, government, the polluting enterprises and environmental protection enterprises. These thine parties have their respective self-interests, each party has both positive and negative relationship with the other or others. During the process of their mutual game, all thine parties must bear the positive obligations that are equivalent to their benefits. Otherwise, they will inevitably bear the curresponding legal responsibility. This model can be only developed under a clear and propor- tionate distribution of the obligations of the thine parties. At present, there is no clear legal regula- tion on the distribution of the main obligations of the third party for environmental pollution, which not only confuses the administrative responsibilities and civil liabilities, but also leads to the appear- ance of rent-seeking and interest collusion. It is necessary to take all related law into consideration, which includes ＂Environmental protection law＂,＂ Contract Law＂, ＂Admiistrative Law＂, ＂Tort Liability Law＂, and establish a system of a third party participation in the distribution of the responsibil-ities for environmental pollution control which compliance with the actual situation in our country. To clarify the legal responsibilities if the parties fail to pefform their duty, and develop the system of supervisory obligation.