生态环境损害赔偿磋商制度省思——兼评生态环境损害赔偿磋商十大典型案例

Reflection on the Consultation System of Compensation for Ecological and Environmental Damage——Comment on the Ten Typical Cases of Consultation for Ecological and Environmental Compensation

自2018年试行开始,生态环境损害赔偿制度已在全国范围内掀起了实践探索的热潮。在协商行政理论框架下,赔偿磋商本质是行政机关发挥公权优势,借助与赔偿义务人平等对话的私法途径以填补生态环境损害之公法目标而启动的特殊协商式执法行为。从生态环境部2020年生态环境损害赔偿磋商典型案例可以发现,赔偿磋商制度在规范层面立法滞后和引导不足,导致磋商结果保障缺陷、组织形式欠规范、公众参与虚置、制度效益存疑等亟待解决的问题。为推行生态环境损害赔偿制度在全国范围内初步建成和不断成熟,现阶段有必要围绕赔偿磋商在鉴定评估、司法衔接、监督机制方面的优化拓展,促其合规合理实现修补环境生态公共利益之旨趣。

Since the trial started in 2018,the ecological and environmental damage compensation system has set off a nationwide enthusiasm in its practice and exploration.In the framework of consultative administration theory,the essence of compensation consultation is a special consultative law enforcement initiated by the administrative organ who,making full use of its public power advantage,tries to realize the public law goal for ecological and environmental damage by means of the private approach of equal dialogue with the compensation obligor.Focusing on the typical cases of ecological and environmental damage consultation from the Ministry of Ecology and Environment in 2020,the author finds out that the compensation consultation system lags behind in legislation with insufficient guidance in the level of regulation,which result in some urgent problems to be solved,for example,the guarantee of consultation results has defect,the organizational form is not standardized,public participation is in vain,and the benefit of the system is questionable.In order to promote the ecological and environmental damage compensation system to be established and become mature in the whole country,it is necessary to optimize and expand the compensation consultation in terms of appraisal,judicial connection,and supervision mechanism at the present stage,so as to promote the realization of public interests in repairing the environment and ecology reasonably and legally.