论环境行政法律责任的创新及专门化发展

Innovation and Specialized Development of Environmental Administrative Legal Responsibilities

环境行政法律责任的实践问题根源于其设计思路不能适应环境行政管理的特殊需要,应基于环境行政应对环境风险的基本立场,充分考虑环境行政的多元主体参与特征和生态环境修复目标,进行环境行政法律责任的理论和制度创新。具体而言,应在合作治理框架下适应环境行政主体角色转变的需要,发展环境质量责任、环境行政补偿责任等制度;基于环境行政相对人义务的特点,合理设置风险的过程性控制责任、环境损害补救性责任和信用约束等柔性责任;进而结合生态环境质量目标设置专门性的生态环境修复责任,并在环境污染和破坏者、环境行政管理者之间进行适当分配。创新的与传统的行政法律责任方式,都应按照体系化要求编排在环境法典中,其中共通性的责任规则纳入法律责任编,对应污染控制等分则各编制度的具体责任规则分别纳入分则各编。

Legal responsibilities are the basic guarantee for the implementation of environmental law and play an important role in the environmental law system.Based on the positioning of the environmental code as administrative legislation,administrative legal responsibilities should be the main focus of the design of legal responsibility rules in the code.The current environmental administrative liability system has such problems as insufficient legal responsibility guarantee for the preventive system,the mismatch between legal responsibilities and social consequences caused by violations of law,and the failure to implement the requirements of ecological environment restoration,the root cause of which is the inability of design approaches to adapt to the special needs of environmental administrative management.Theoretical and institutional innovations of environmental administrative legal responsibilities should be carried out based on the basic position of coping with environmental risks with environmental administration and with full consideration of the participation of multiple subjects in environmental administration and the goal of ecological and environmental restoration.Specifically,in such innovations,China should base itself on the basic framework of administrative legal responsibility,make full use of traditional administrative liability methods under the framework of cooperative governance,adapt itself to the need of transforming the role of environmental administrative subjects,and develop the system of government responsibility for environmental quality and the system of environmental administrative compensation responsibility.Based on the characteristics of the obligations of environmental administration counterparts,it should reasonably set flexible responsibilities such as the responsibility for process control of risks,the responsibility for environmental damage remediation and credit liability.Further,it should set specific ecological environment restoration liabilities in accordance with ecological and environmental quality goals,appropriately distribute them among environmental polluters and destroyers,and environmental administrators,and clarify their specific applicable conditions,subjects and contents in laws and regulations.Innovative environmental administrative legal responsibilities and traditional administrative liability methods should be arranged in a systematic way in the environmental code,with the general responsibility rules incorporated into the book on legal responsibilities,while rules on specific responsibilities for pollution control and other responsibilities incorporated into the corresponding books of the code.The environmental administrative legal responsibilities stipulated in the environmental code should correspond to the fundamental systems stipulated in the code,while their relations with the basic system of administrative legal responsibility and responsibility systems in other environmental laws and regulations should be taken into consideration.