金钱类环境责任的司法样态及序位重构

Reconstruction of Judicial Pattern and Pecuniary Environmental Liability Order

金钱类环境责任,是指因行为人存在对生态环境有损害或损害之虞的行为,而需从其合法财产中施以一定数额金钱的环境法律责任。经实证分析发现我国金钱类环境责任的序位形态显示出民事责任劣后、刑事责任激进的序位特征,引发法理和效果的双重困境,不得不对金钱类环境责任的序位做出体系化安排。以法律责任的主要功能为区分标准,可将金钱类环境责任分为补偿救济型和惩罚威慑型,前者包括私益同质赔偿、公益同质赔偿和行政强制之代履行费用,后者包括公私益惩罚性赔偿、行政罚款、刑事罚金。遵循利益平衡法理逻辑和功能导向实用逻辑,序位重构方案从金钱类环境责任的施加与履行两个层面展开,责任施加层面确立生态环境损害赔偿优先于环境民事公益诉讼,责任履行层面确立环境私益同质赔偿优先于环境私益惩罚性赔偿,再优先于环境公益同质赔偿,最后优先于行政罚款、刑事罚金或环境公益惩罚性赔偿。为调和理想与现实的矛盾,设立金钱类环境责任错位补救与过渡机制,以变通责任之履行。

Pecuniary environmental liability refers to the environmental legal liability that requires a certain amount of money from the legal property of the actor because of his behavior that has damaged or may damage the ecological environment. Through empirical analysis, our research found that the order form of China′s pecuniary environmental liability shows the characteristics of inferior civil liability and radical criminal liability, which leads to the double predicament of legal principle and effect. There has to be a systematic arrangement of the pecuniary order of environmental liability. According to the main function of legal liability, the pecuniary environmental liability can be divided into two types: compensation relief type and punishment deterrent type. The former includes homogeneous compensation for private interests, homogeneous compensation for public interests and performance costs of administrative compulsion;while the latter includes punitive damages for public and private interests, administrative fines and criminal fines. Following the legal logic of interest balance and the practical logic of function orientation, the program of order reconstruction is carried out from the two levels of the imposition and implementation of pecuniary environmental liability. At the level of liability enforcement, the compensation for ecological and environmental damage takes precedence over environmental civil and public interest litigation. At the level of liability performance, the compensation for environmental private interest takes precedence over punitive compensation for environmental private interest, then the compensation for environmental public interest, and finally,the priority of administrative fine, criminal fine or environmental public welfare punitive damages. In order to reconcile the contradiction between the ideal and the reality, we should set up a mechanism to redress and transit the dislocation of the pecuniary environmental liability.