《民法典》中生态环境修复责任制度的实施困境及其完善路径

The Difficulties of Implementing the Responsibility System of Ecological Environment Restoration in the Civil Code and the Way to Improve

《民法典》侵权责任编中增加生态破坏责任,使之与环境污染责任相并列,体现《民法典》在保护私权益基础上向着公益保护的转变。将修复责任作为生态环境损害的责任承担方式不仅能实现保护生态环境的立法目的,还能够使绿色原则具体化,促进社会主体参与,贯彻多元共治理念。但是《民法典》第1234条中规定的生态环境修复责任制度仍然存在着受委托的第三方修复主体责任认定规则不明、司法实践中修复目标不清晰、修复费用的实践操作阻碍大等问题。基于此,在修复中发生二次损害时,要对第三方主体进行过错判断以明确其责任分配;在确定修复目标方面应当把技术、成本、生态环境的未来规划用途、受影响公众的需求、修复的整体性作为考量因素;完善生态环境修复基金管理模式,促进资金实现自我增值,同时明确资金的使用程序。

The addition of the responsibility for ecological damage to the tort liability in the Civil Code makes it juxtaposed with the responsibility for environmental pollution,which reflects the transformation of the Civil Code to public welfare protection on the basis of protecting private rights and interests.Regarding restoration responsibility as a way of assuming responsibility for damage to the ecological environment can not only achieve the legislative purpose of protecting the ecological environment,but also make the green principles concrete,promote the participation of social subjects,and implement the concept of multiple co-governance.However,the ecological environment restoration responsibility system stipulated in Article 1234 of the Civil Code still has problems such as unclear rules for the responsibility of the entrusted third party restoration body,unclear restoration goals in judicial practice,and large obstacles to the practical operation of restoration costs.Based on this,when secondary damage occurs during restoration,fault judgments should be made on third-party entities to clarify the assignment of their responsibilities;in determining restoration targets,technologies,costs,the future planned use of the ecological environment,the needs of the affected public,and the needs of the affected public should be determined.The integrity of the restoration shall be taken into consideration.Furthermore,the management model of the ecological environment restoration fund shall be improved,the self-increase of funds shall be promoted and the procedures for the use of funds shall be clarified.