生态环境损害赔偿制度下的磋商行为性质研究

Research on the Nature of Negotiation Behavior under the Compensation System for Ecological Environment Damage

目前学界对磋商行为之性质存在争议。行政行为说认为私法解释论会导致手段凌驾于目的之上的解释论扭曲及陷入行政控权困局;民事行为说认为行政机关与污染者并无行政法律关系,且以平等性替代命令性。考虑到环境损害的特性,结合实务中损害判定和追责的种种困境,基于效率与公平、实际可操作性、利益最大化等因素的考量,将磋商行为认定为民事行为,不仅符合法律规定,更能克服磋商过程中出现的难题,确保赔偿及时有效开展,不失为当前最为高效且兼具公平的选择。

At present, the academic circles are controversial about the nature of the negotiating behavior. The administrative act says that the private law interpretation theory will lead to the distortion of the interpretation of the means above the purpose and the administrative control power dilemma. The civil behavior says that the administrative agency and the polluters don’t have administrative and legal relations, and replace imperative with equality. Taking into account the characteristics of environmental damage, combined with the various dilemmas of damage determination and accountability in practice, based on considerations of factors such as efficiency and fairness, practical operability, and maximization of interests, the negotiation behavior is recognized as a civil act, which not only conforms to the law, but also can overcome the difficulties that arise during the consultation process and ensure timely and effective compensation, which is the most efficient and fair choice at present.