生态环境损害政府索赔制度的困局与出路——以公私法融合为视角

The Dilemma and Outlet of the Government Claims System for Ecological Environmental Damage——From the Perspective of the Integration of Public and Private Laws

我国正在推行的生态环境损害赔偿制度存在着内源性与外源性的问题,即以纯粹的私法思维主导政府索赔制度存在逻辑障碍,无法反映政府索赔制度的全貌,以公法模式应对生态环境损害也面临着适用困境。究其原因在于"非公即私"式的解释路径。随着公法与私法的交融渗透已成为趋势,可建立公法与私法协作的模式来解决生态环境损害政府索赔的理论与实践障碍。在理论上,政府索赔理论依据为宪法上的国家环境保护义务,可将索赔磋商视为一种体现合作性、对话性的协商行政;在具体的制度层面,宜采取一种混合责任体制,规范政府索赔的适用程序,完善问责机制推动积极索赔。

The eco-environmental damage compensation system that is being implemented in China has internal and external issues,that is,there are logical obstacles in the government claim system with pure private law thinking,which cannot reflect the full picture of the government claim system,and the public law model to deal with the ecological environment damage is also faced with the dilemma of application.The reason lies in the"non-public is private"interpretation path.With the integration and penetration of public law and private law has become a trend,a model of collaboration between public law and private law can be established to solve the theoretical and practical obstacles of government claims for ecological damage.In theory,the theoretical basis of government claims is the national environmental protection obligation in the constitution,and the claims negotiation can be regarded as a kind of cooperative and conversational negotiation administration.At the specific institutional level,a mixed liability system should be adopted to regulate the application procedures of government claims and improve the accountability mechanism to promote active claims.