生态环境监测服务社会化的法律与政策“共治”研究

Research on Law and Policy “Co-governance” of Socialization of Ecological Environment Monitoring Service

我国的生态环境监测服务社会化走过十年有余,在以《生态环境监测条例(草案)》为标志的行业统一性立法加快出台的背景下,作为制度工具的法律与政策之间互助共济的"共治"格局将成为未来生态环境监测服务社会化的重要制度特征。本文以部分省、市出台的25份行政规范性文件为分析样本,发现各地出台的政策存在生态环境监测范围过窄且市场准入条件不合理、监管模式、职权划分及措施未摆脱体制束缚、机构运营环节缺乏公法边界、市场退出及责任承担环节对"弄虚作假"的界定过于主观化等四点制度缺陷。应取消针对社会化机构的环境监测范围限制并凸显市场准入条件的"专业性",构建与社会化性质相适应的政府监管体制,明晰机构运营环节的公法边界,进一步规范由"弄虚作假"引致的民事、行政法律责任,助推政策的法治化。应通过对生态环境监测信息开放的边界、各主体在生态环境监测信息的获取和使用上的权限分配与责任承担、负责生态环境监测数据平台的技术机构与政府监管部门之间关系等的探索,助推政策的创新化。

The socialization of China’s ecological environment monitoring services has gone more than a decade. In the context of accelerating the introduction of industry uniform legislation marked by the "Ecological Environment Monitoring Regulations"(draft soliciting opinions),as the "co-governance"pattern of mutual assistance between laws and policies of institutional tools will become an important institutional feature of the future socialization of ecological environment monitoring services. Using 25 administrative normative documents issued by some provinces and cities as analysis samples,quantitative analysis is carried out.It is found that the policies issued by various regions have too narrow scope of ecological environment monitoring and unreasonable market access conditions,regulatory models and division of powers and measures have not got rid of institutional constraints,the lack of public law boundaries in institutional operation links,market exits and responsibility-taking links are "fraudulent"define the four-point system defects such as too subjective. In view of this,the "professionalism"and construction of market access conditions should be lifted from the limitation of environmental monitoring scope for social institutions. The government supervision system adapted to the nature of socialization,the clarification of the public law boundary of the organization’s operation,and the further standardization of civil and administrative legal responsibilities caused by "fraud"promote the rule of law of policies. Exploratory assistance should be provided through the boundaries open to ecological environment monitoring information,the distribution of authority and responsibility of each subject in the acquisition and use of ecological environment monitoring information,the relationship between the technical agency responsible for the ecological environment monitoring data platform and the government regulatory department,etc,in order to push policy innovation.