论生态环境损害赔偿与生态补偿的适用甄别——以流域生态保护为视角

A Comparison of the Application of the Eco-environment Damage Indemnification and the Ecological Compensation in the Perspective of Basin-related Eco-protection

在生态文明体制改革全方位推进的背景下,流域生态保护的制度构建迫在眉睫。现有关于流域生态保护的核心制度是生态补偿机制的合理构建。学界普遍认为生态补偿机制应发力于对上游地区的机会补偿,然而却不能兼顾流域水质恶化后上下游之间关系的处理。因此有必要在流域生态保护中厘清补偿以及与之相关的生态环境损害赔偿的关系。目前生态补偿机制与生态环境损害赔偿制度就制度目的与运行机理上表现为广泛的“链接”与“交叉”。当下尚未有任何规章制度阐释二者之间的关系,应从生态补偿与生态环境损害赔偿之间的关系入手,剖析并界定二者之间的制度真空、制度冲突与制度耦合等三种关系。同时从生态补偿与生态环境损害赔偿之间的制度依据、制度配置状态角度对两种制度的适用情形、责任序位以及资金的配置使用关系做出合理“区分”。

Against the background of all-round promotion of the institutional reform of ecological civilization,the construction of the ecological protection system is imminent.The existing core system of the basin-related eco-protection is the rational construction of the ecological compensation mechanism.Scholars generally believe that the ecological compensation mechanism should focus on the opportunity compensation for the upstream area,but the treatment of the upstream-downstream relationship after the deterioration of water quality cannot receive adequate attention at the same time.Therefore,it is necessary to distinguish the relationship between the ecological protection compensation and the eco-environment damage indemnification in the basin-related ecological protection.At present,the ecological compensation mechanism and the eco-environment damage indemnification system show a wide range of“link”and“intersection”in terms of the institutional purpose and operation mechanism.However,due to the fact that there are no rules and regulations to explain the relationship between the two systems,it is necessary to classify their relationship,that is,there are three relations between them,the institutional vacuum,the institutional conflict and the institutional coupling.Meanwhile,it is also necessary to make a reasonable distinction between the ecological compensation and the eco-environment damage indemnification from the perspective of their institutional basis and their existing institutional practice,including their application,their order of responsibility and their allocation and use of funds.