论生态损害救济的模式选择

On the Mode Choice of Ecological Damage Relief

围绕着环境民事公益诉讼和生态环境损害赔偿诉讼,我国建立了私法主导的生态损害救济体系。这一体系在发展环境法治的同时,也带来了相关主体角色错位、政府主导的修复和司法判决难以衔接以及法院主导修复能力有限等问题。而生态损害的公法救济在现行立法中未得到足够重视。影响生态损害救济模式选择的主要因素有:法律体系对公私法划分的影响;行政机关在救济生态损害方面的权能和保障以及私法救济的困难程度。基于这些因素的考量,我国应通过立法授权、行政执行能力的强化和行政公益诉讼制度的完善,建立公法主导的生态损害救济制度。私法救济在公法框架建立前或无法适用的情况下,可发挥补充作用。

Based on environmental public interest litigation and the governmental right of claim, a private law oriented regime for ecological damage relief has been established in China. On one hand, this regime has promoted the development of environmental rule of law. On the other hand, it has caused problems such as the mismatching roles between stakeholders, the lack of link between administrative activities and judgments, as well as the limited capacity of courts in deciding and supervising remediation. Less attention has been paid to the public law approach in ecological damage relief in current legislative framework. Based on the comparative study of Dutch and American systems, this article summarizes the factors influencing the choice between public and private law approach : the influence of legal systems on the division between public and private law, the authority and capacity of administrative agencies in remediating ecological damage as well as the difficulties for private law to accommodate this new type of damage. Considering Chinas characteristics in these aspects, this article proposes to establish a public law-oriented relief regime via legislative authorization, strengthening administrative capacity and improving the administrative public interest litigation regime. Private law approach can play a supplementary role before public law obligations are imposed or are not applicable.