民族地区生态环境保护的法治探讨

A Discussion on Ecological Environment Protection via the Law in the Ethnic Minority Areas

民族地区已初步建成生态环境保护法治体系,但是生态环境监察执法体系不完善,生态环境法治建设仍存在诸多问题。完善民族地区生态环境保护的法治举措是:构建自然资源资产产权制度,建立生态环境效益补偿制度,健全生态环境损害赔偿制度,完善生态环境治理公益诉讼制度,强化生态环境治理督察制度。

Ethnic areas are not only areas withthe most abundant mineral and ecological resources,but they are also the areas with the mostvulnerable natural vegetation and ecological environments. At present,the laws for the protectionof the environmental have essentially been established in ethnic areas,but the system of monitoringand enforcement still needs improvement. We arestill facing many very real problems with the operational process of the system,including：1）relevant legal norms are incomplete;2）litigation related to the environment is limited by jurisdiction;3） it is difficult to manage environmental cases professionally due to the lack of judges or clerks whohave knowledge of environmental protection andenvironmental resources; 4） It is difficult to managecrossregional ecological environment cases due tothe lack of crossregional coordination;and 5）legal supervision of environmental protection isweak.This paper proposes the following legal measures for the protection of the ecology and environment in ethnic minority areas：1） Establish a property rightssystem of natural resource assets in ethnic minority areasSome general problems exist in current ethnicminority areas,for instance,the owners of naturalresource assets are not present,and the ownersrights have not been put in place ;or the ownership of some natural resource assets is unclear,and the ownership is virtual. So,it is difficult to create a mechanism for incentives and restrictionswith regard to ecological and environmental protection. In light of the problems mentioned above,itis suggested that the national legislature should establish a diversified property rights system for theownership of natural resource assets according tothe actual situation of the ethnic areas,so as tomobilize and encourage elements from all venues ofsociety,and attract local people to participate inprotecting natural resources and the environment inthe ethnic areas. A system of natural resourcesproperty rights with a clear requirement for rightsand responsibilities should be established,and therights of all kinds of property owners of natural resources should be clarified through the form ofmaking an authoritative list.2） Establish a compensation system for ecological and environmental benefits in ethnic minority areas Ecological compensation refers to a compensation regarding the degradation of the ecosystemfunction or quality due to economic development oreconomic construction by improving the conditionof the damaged area,aiming to maintain the balance and stability of the ecosystem. This is not only an effective measure to solve the problem of natural resources and ecological environment damage,but is also an institutional arrangement which canadjust the environmental damage and protect therelationships of interest among the subjects in theenvironment. The premise for establishing an ecological compensation system in ethnic minority areas should be in accordance with the principle of theunity of the ecological environment cost and revenue;should speed up the system of reform concerning the natural resources and their productprice,set up a mechanism for evaluating the costof natural resource development,and include theresource owner,occupant,consumer rights and interests,as well as the harm to the ecological environment into the system concerning the natural resources and its product value. It is suggested thatwhen the legislature amends the provisions of thelaw on ecological and environmental protection,itshould include both the compensation standardsand the compensation methods,and the subject,object,liability share in the ecological environmentcompensation should be prescribed in the law system so as to provide legal guarantees for the implementation of the ecological compensation system inethnic minority areas from the legal perspective.3） Improve the compensation system for ecological and environmental damage in ethnic minority areasThe ascertainment of the facts and extent ofthe damage to the ecological environment shall bedetermined by the rights holder of the compensation or a third party who shall,on the basis of theecological damage,investigation,and appraisal,reach a consensus of the compensation through mutual consultation between the two parties. If theparties fail to reach an agreement after consultation,the claimant of compensation may file a lawsuit to a court which has jurisdiction. The generaloffices of the CPC Central Committee and the StateCouncil jointly issued a document entitled Shengtaihuanjing shunhai peichan zhidu gaige fangan （ Reforming Plan for the Ecological and EnvironmentalDamage Compensation System ） ,which makes thedecision that a system concerning compensation forecological and environmental damage would be piloted in the whole county from January 1,2018,and that a systemic and integrated compensationsystem with a clear definition of property rights,responsibilities,and plural participation would beformed by the end of 2020. The compensation system for ecological and environmental damage showsthe ecological function value of environmental resources,which is beneficial for the obligatory compensator to fulfill consciously,the responsibility ofecological environment restoration. And if the environment cannot be restored,economic compensation should be given as “ alternative restoration” .4） Improve the public welfare litigation systemfor the governance of the ecology and environmentin ethnic minority areasProcuratorial organs are not only national organs,but also organs for legal supervision. Theconstruction of an ecological prosecution system isa new requirement for constructing an ecologicalcivilization with supervisory organs. The ecologicalprocuratorial system is composed of an ecoenvironmental information sharing system,ecoenvironmental reporting system,ecoenvironmental lawenforcement monitoring system ecoenvironmentaldamage restoration system,and an eco-environ-mental reporting system,ecoenvironmental lawenforcement monitoring system ecoenvironmentaldamage restoration system,and an ecoenvironmental public interest litigation system. Nationalprocuratorial organs at all levels located in ethnicminority areas are dutybound to protect natural resources and the environment. To be specific,theecological prosecution,in accordance with thelaw,is to perform the function of legal supervision;to arrest,and prosecute criminal suspects whodamage the ecological environment. It should investigate workrelated crimes committed by competent departments and personnel of ecological administration;initiate public interest lawsuits against those who abuse their power or neglect theirduties to cause environmental harm,and no criminal would be allowed to escape from legal punishment. The ecoprocuratorial organ is in the positionof a supervisor in the construction of ecological civilization in ethnic minority areas,and they havetheir specific way of taking action.5） Strengthen the supervision system for ecological and environmental governance in ethnic minority areas An ecoenvironmental governance system andpollutant discharge system must be established andimproved in accordance with the law;the governance system for rural environments should be improved ;a compensation system for ecological andenvironmental damage should be strictly implemented ;the producers legal responsibility for ecological and environmental protections should bestrengthened in accordance with the law;and thecost for breaking environmental law should be increased significantly. The monitoring system forecological and environmental governance should bestrengthened,particularly in ethnic minority areas;those behaviors that violate ecological and environmental laws and regulations should be severelypunished ; those people who cause serious damageto the environment shall be ordered to pay compensation according to the law,and those behaviorswhich bring serious consequences for the environment in ethnic minority areas shall be investigatedfor their criminal responsibility in accordance with law.