[] Environment, environment and environmental issues, rule of law
Environmental comparison center. Associated with a center, things around it and things in the center of the environment are called. The most important thing is that the concept of environment is different. Compared with human beings, the environment affects various natural and artificially transformed natural factors for human survival and development, including atmosphere, water, ocean, land, minerals, forests, grasslands, wildlife, natural heritage, cultural relics, nature reserves, scenic spots, cities and rural areas. "(1), including the living environment, including the ecological environment, is a first-class environmental problem. Environmental problems caused by changes in human activities around people can be divided into two categories, such as earthquakes, volcanic eruptions, landslides and other natural disasters. In the phenomenon of environmental quality, and this change in turn has a harmful impact on human production, life and health. (2) The second kind of problems, the environmental problems expounded by the author in this paper are also called the second kind of environmental problems.
In recent years, China's environmental problems have become increasingly prominent, which is not only a link of social development, but also a major practical problem of overall development. The track of rule of law and governance rules based on law should be the best solution to today's environmental problems in the process of gradual maturity of market economy and legal system construction. This paper attempts to do some research on environmental problems and environment and rule of law in China.
Environmental problems, the present situation and causes of environmental problems in China.
(A) environmental issues and the development of social productive forces.
Since ancient times, environmental problems have been different in different historical periods. According to different historical periods, we can divide environmental problems into two types. One is environmental protection in the traditional sense, which mainly refers to the unreasonable exploitation of resources by people during the industrial revolution, resulting in environmental damage and waste of resources. This is due to excessive land reclamation, deforestation, overgrazing, predatory fishing, soil erosion, land desertification, grassland degradation, aquatic. For example, residents in Mesopotamia, Greece, Asia Minor and other parts of the two river basins destroyed forests in order to obtain cultivated land, but they never dreamed that today he has become barren and barren. Because they make these places lose forests, they also lose the center of accumulation and storage of water, another environmental problem in the post-modern sense. It is an environmental problem with serious "three wastes" (waste gas, waste water and waste residue), noise pollution, radioactive pollution and pesticide pollution in the process of industrial revolution, variable high-speed development of industry and agriculture and urbanization. The breadth and depth of its pollution have caused a large number of "environmental risks that greatly exceed pollution" (also known as public environmental risks, which refer to people's living environment and ecological environment, causing social harm, including environmental damage), because we all know1the gas leak in Bhopal pesticide plant on February 3, 984 and1the Chernobyl nuclear power plant leak in the Soviet Union on April 26, 986.
(2) Analysis of the current situation and causes of environmental problems in China.
The present situation of environmental pollution and destruction in China has developed into a global social problem that threatens human survival and development. The new global and wide-area environmental problems facing mankind can be divided into three categories: first, the global wide area? Environmental pollution, second, large area? Ecological destruction; The third is a sudden serious pollution accident.
Environmental pollution in developed countries and environmental damage in developing countries, in China, there are two kinds of environmental problems, environmental damage and environmental pollution, both of which are very serious. According to statistics, China is one of the countries with the largest emission of environmental pollutants in the world, with an annual emission of more than 43 million tons of pollutants (about 280,000 tons,146,000 tons of sulfur dioxide smoke), and the total industrial wastewater discharged by 1988 is 268 million tons, with a treatment rate of 27%, which has also caused serious damage to the natural environment. At present, the area of soil erosion liberated in China at the beginning of the year? 1 160000 square kilometers expanded to 1500000 square kilometers. (3)
The economic losses caused by environmental pollution and destruction in China are amazing. Now let's look at a set of data: according to incomplete statistics, in the early 1980s, the annual economic loss caused by environmental pollution was 69 billion yuan, the annual economic loss caused by some natural ecology that destroyed the environment was 2.65 billion yuan, and the death of * * * was 95.5 billion yuan, accounting for about 14% of the total industrial and agricultural output value of the country. From such a set of data, we can clearly see that our serious environmental problems have seriously hindered the healthy development of China economic countries, which is bound to be extremely unfavorable to our future economic development.
The causes of environmental problems in China are analyzed.
It should be said that there are many reasons for such serious environmental problems, including natural and geographical factors, economic, cultural and social factors, and the specific national conditions of China. It is unique, and I will focus on it here.
(1) Economic factors
At present, China's economy is in a transitional period from traditional planned economy to market economy, but it is also a period of rapid economic growth in China. The eco-environmental problems of economically developed countries in history can bear the heavier pressure of China's eco-environment during this period, which is the most serious period.
Environmental problems caused by the deterioration of economic development. China's economic reform and the liberation of social productive forces have stimulated the rapid growth of the national economy, but at the same time, the scale of resource development and utilization and industrial pollutant discharge will also accelerate. However, because the national economy is still in the transition period from extensive to intensive, people only pay attention to the figures of economic growth, but often ignore the heavy price behind it: predatory exploitation of resources has caused great damage to the environment, and ecological and environmental problems have multiplied in recent years.
Second, the conflict between economic interests and environmental protection. The development of market economy is to pursue high profits, which is relative to the interests of a few people. Protecting the environment is the interest of most people. The two are mutually exclusive, and the dominant law of social relations can easily be standardized. China's economy is a unified subject of economic and environmental benefits based on public ownership. However, in recent years, the deterioration of rural environment in China is particularly obvious. Some farmers in township enterprises help the poor, and the country has environmental pollution, where collective injuries, I would rather endure. In this regard, the state has to take compulsory measures to close small enterprises during the Tenth Five-Year Plan. But in a sense, the government is the mediator of the conflict between the two sides, and often becomes one side of the conflict (places of interest). The camp is illegal and it is extremely difficult to enforce the law.
(2) Human and social factors
As a science, ecology has been inextricably linked with "human society" since its birth. If pre-ecology learned more natural attributes, then modern ecology will have stronger social attributes. "(4) environmental problems, the most obvious are human and social reasons, China's environmental problems, and from the current point of view, other people's huge factors in this regard.
First, China has a large population, and the pressure of resources and environment, environmental problems and population are closely related. Under certain social development stage, certain geographical environment and productivity level, population growth should be an appropriate proportion of population and environmental problems, which is the main challenge faced by the development, huge population and rapid growth of contemporary China, causing a series of socio-economic problems and having a great impact on the environment. It can be said that the population problem in China is the biggest irreversible social problem. In a short time, there is no need to avoid it. The population problem has led to the absolute shortage of resources in this country, and at the same time, accompanied by amazing waste, it has caused great pressure on the implementation of China's economic sustainable development strategy.
Second, public awareness of environmental protection is generally poor. The so-called environmental awareness, cognitive state of the environment and understanding of environmental rules are all based on people's consciousness and basic values? Participating in environmental protection is ultimately reflected in the behavior protection that is beneficial to the environment. "(5) Most people lack a clear understanding of the objective conditions for judging the environmental conditions of countries with environmental problems in China. Judging from the survey results, most of them are mild-mannered, insensitive, and lack of understanding or even understanding of the fundamental problems of the environment, but a considerable number of citizens do not want to take the initiative to acquire knowledge. Around the "World Environment Day" in 2000, the State Environmental Protection Administration and the Ministry of Education jointly launched a nationwide environmental awareness campaign. Environmental awareness and our understanding of the results of the investigation report must also deal with low-level and weak environmental ethics. The public's environmental awareness in China strongly depends on the type of government, and the government plays a decisive role in improving the public's environmental awareness. From these many surveys, we can see how China's national environmental awareness is different. The environmental awareness of citizens in a country is so poor that you can imagine what the environmental problems in this country are like.
Environmental problems are intertwined with social problems such as poverty, and at the same time, they form a vicious circle trend. There are different forms of environmental problems in today's world, but on the whole, we can conclude that the environmental problems in rich countries mainly involve environmental pollution and pollutants, while those in poor countries are mainly environmental damage related to natural resources. The former is easier to control and recover, while the latter is much more difficult. There are similar environmental problems in China. In plain areas, coastal areas, big cities and economically developed areas, environmental pollution control has been continuously alleviated, and the ecological environment in relatively poor areas in the west has deteriorated and the environmental damage has been serious, showing a trend of synchronization of environmental problems, and poverty has deepened, forming a vicious circle.
Reflections on environmental legal system Environmental legal system is a systematic project, including all aspects of social life. Here, based on the following investigation of China's environmental legal system, the author makes legal thinking on China's environmental problems: the change of ideas and the strengthening of legislative practice, the improvement of legislation, law enforcement and justice, the strengthening of legal supervision, the improvement of citizens' environmental awareness, the strengthening of law-abiding behavior, and the concept of ownership of environmental components.
(1) transformation
Since the promulgation of China's environmental protection law for 20 years, the legislative concept and practice of strengthening environmental protection have basically changed. The adjustment scope of environmental law is still the traditional environmental legal system with environmental law-pollution prevention and control law as the core. In fact, environmental protection is not only to control the existing pollution, but also to protect the existing environment. However, our legislation is not enough to protect natural resources in this respect, which has long been ignored. This is an important reason. The State Environmental Protection Administration is responsible for. When talking about the western environment, he stressed that "prevention and protection must be given priority in accordance with the requirements of General Secretary Jiang" and insisted on the balanced combination of pollution control with urban pollution control, ecological environment construction and rural environmental protection.
The Environmental Protection Law is a national law and regulation promulgated or confirmed by the state to enforce the environment and protect natural resources, prevent pollution and other public hazards, and bring environmental protection into an institutionalized, standardized and scientific track. It is the general name of central legislation. Based on the principle of seeking truth from facts and in accordance with a unified legal system, an environmental management system must be established in a comprehensive and balanced way, and an efficient organization should be established to guide and coordinate environmental management institutions. And punish criminals according to law, so as to effectively protect the human rights of victims. At present, China's environmental pollution crimes and national environmental legislation are the basis of a national environmental law, the fundamental guiding principle of national environmental legislation, and the local legislation and key environmental legislation of people's legitimate environmental activities. Today, there are some defects in our country, such as pollution control norms and limited measures to protect ecological resources, which should be the focus of future environmental protection laws and regulations.
Local environmental protection laws and regulations enjoy the legislative power of local competent departments and local administrative organs to formulate local environmental protection laws and regulations. Its main means is to bring environmental protection into the track of rule of law, and to implement national environmental protection laws and regulations and important safeguard measures for local environmental protection management. Local environmental protection laws and regulations must have a strong guiding ideology of environmental management, highlight key points, give consideration to both, adhere to the environmental protection work of environmental management service centers, especially the key environmental protection laws and regulations, and follow the following principles: (1) Establish the principles and systems of environmental legislation. As mentioned above, national environmental legislation has standards for environmental pollution control, defects in protecting ecological resources, and pollution prevention and control legislation is focused. The phenomenon that eco-environmental protection legislation is ignored is equivalent to local environmental protection laws and regulations, so that the prevention and control of heavy pollution in practical work can protect the ecological environment, while global environmental protection work is ignored. Abide by the principles of environmental legislation. According to the requirements of local laws, from the ecological point of view, it is considered that in order to protect the ecological environment, prevent pollution and various disasters, and treat both the symptoms and the root causes, the living environment and ecological environment of an organism should be regulated. (2) The principle of pollution liability should be strengthened. Local legislation should become the polluter and the embodiment of responsibility of national legislation, and whoever pollutes should be treated is always the basic principle of environmental protection. Under the market economy system, the main body pursues profits in the market, and some enterprises often prefer to be fined rather than control pollution for short-term economic benefits. Therefore, strengthening local environmental legislation has become an indispensable principle to strengthen the responsibility of polluters, which should be said to be the embodiment of the principle of rights and obligations of environmental law. (3) Adhere to the principle of realism and progressiveness, and combine pollution in different places with specific tasks of environmental protection, which requires local legislation to adapt to local conditions, adhere to the principle of national legislation, and combine with local flexibility. Summative legislation often has obvious lag and constantly develops social relations. Local legislation should be based on scientific prediction in advance to make up for the lag of national legislation. Improve law enforcement and justice.
& gt China's environmental protection emphasizes that the executive-led government should play a leading role. Judging from the development trend in recent years, the government led by environmental protection administration in China has been showing a trend of continuous strengthening. At present, strengthening the administrative-led process of environmental law enforcement in key environmental protection work has its advantages, such as high efficiency, which can adapt to China's ecological environment, but its limitations are also obvious. First, it is mainly applicable to pollution prevention, natural resources protection and ecological environment construction, which is another matter; Secondly, the executive-led government has a strict subordinate relationship, which is prone to the division and fragmentation of departments and the confusion of the overall business system that cannot form an organic connection. In addition, the administrative-led approach reduces the status and role of environmental justice, and also reduces the intensity of environmental law enforcement. The role of the judiciary is negligible. Therefore, in order to realize the rule of law environment, we must improve law enforcement and justice. It should be how to improve law enforcement and justice. In my opinion, efforts should be made in the following aspects:
First, the prevention and control of administrative criminal law pollution, the integration direction of administrative responsibility and criminal responsibility, the current administrative punishment has increased the nature of criminal responsibility, and procuratorial organs should actively participate.
Second, the scope of ecological protection and civil protection gradually expands and narrows the scope of criminal responsibility, which depends on the perfection of civil law, which depends on correctly handling economic construction and environmental protection, public environmental awareness and other factors.
The procuratorate, which re-established the public interest litigation system with the procuratorate as the main body, represents the victims of environmental damage litigation. The existing environmental tort litigation needs the general principles of civil law. A wider range of environmental infringers are prone to "hitchhiking" victims in litigation, which is not conducive to the establishment of a public interest litigation system in which * * * claims from litigants. This shortcoming can be overcome. Under today's circumstances, the legal awareness of the public in China is generally weak, which may be a good policy.
Finally, we should correctly understand and grasp the strengthening of environmental law enforcement. In my opinion, the system is feasible in China's environmental legal system, and the law enforcement link ends here. The previous problem has not been solved. There is only one sub-rule for everyone at the end of the year, which is no different from flood default. Tackling the symptoms but not the root cause, even intensifying contradictions, has laid hidden dangers for the development of the environment and the rule of law.
(3) Strengthen legal supervision
Because China's environmental protection is an executive-led government, and its power is relatively concentrated, legal supervision with greater discretion of the administrative department is particularly important. "If the legal norms, legal relations and legal adjustment mechanism of the rule of law are important means to realize the obligation of legal phenomena, then the activities of legal supervision bring together measures to make the rule of law become law at all stages. A country has no strict and effective legal supervision, and there are no rules and laws. " The real value of visible legal supervision lies not in form, but in effort.
China's environmental laws generally include: administrative supervision, public opinion supervision and political party supervision. Social organization supervision, mass supervision, judicial supervision and other categories.
Organ supervision has played an important role. This paper reports the work of the Environmental Resources Committee of the National People's Congress in recent years. The State Council of the Supreme People's Court has put forward many constructive suggestions on resources and environmental protection, and how to implement and promote the sustainable development of China's economy in order to strengthen environmental protection. It has also insisted on legal supervision and public opinion supervision, organized environmental protection century and environmental law enforcement inspection activities in China, and has always insisted on supervision of administrative organs.
Environmental supervision, the establishment of specialized environmental supervision institutions, aimed at strengthening environmental law enforcement.
The form of public opinion supervision, but in China, the social organizations of major political parties have a low degree of supervision in their supervision system, so the overall effect is very limited.
Judicial supervision, environmental supervision in the field of judicial supervision functions and supervision by people's procuratorates are basically blank. mankind
The content of public participation in the EIA system mainly reproduces the supervision of the masses. Public participation depends first on the public's environmental awareness, followed by the guarantee of the system. There are many problems in both areas. In China, people who are supervised by the masses are basically in the initial stage, lacking operational norms, and their efforts are very limited.
(D) Strengthen citizens' awareness of environmental protection and law-abiding behavior.
Citizens' environmental awareness and law-abiding behavior are not only the reasons for legal education and judicial authority, but more importantly, citizens' cultivation of laws, the deep-rooted democracy and freedom in developed countries such as Europe and America, the 300-year rule of law and the road to modernization, and China's belief in modern bourgeois revolution due to long-term feudal rule. Law is not a native product, and the law always holds an exclusive attitude, especially the tradition of environmental law, which is the only destruction of the environment and freedom in history, rather than protecting the environment. Under public ownership, the rights of natural resources are more abstract, and the relationship between man and nature has long been judged as the economic relationship between workers and labor objects, rather than the legal relationship. Therefore, the deep-rooted awareness of environmental protection needs to go a long way.
(5), determine the ownership of the environment, that is
In the environment of natural resources such as forests, mountains, grasslands, wasteland and water resources, according to the provisions of the General Principles of the Civil Law, ownership belongs to the state or the collective, and it is the ownership of a shared system with the right to use separated within a certain period of time. Although the law clearly stipulates the use obligation of "management, protection and rational utilization" (6), it is often evaded in pursuit of more economic benefits. Of course, there are many factors in our country, but external influences are very important. Are the private costs and social costs, private benefits and social benefits of external actors consistent or inconsistent? Externality can be divided into positive externalities and negative externalities. Positive externalities mean that the behavior cost of private actors is greater than the social cost, and the private benefits are less than the social benefits. The motivation will be the contribution of insufficient actors who benefit less. On the contrary, negative externalities may lead to personal gains greater than social gains, and the resulting costs will be passed on to society or others. For example, Li lost people or harmed the public interest.
It is precisely because of such external behavior. People's actual behavior is often at the expense of setting social interests and pursuing personal interests. For example, in order to protect the environment, our country has implemented the green policy of "returning farmland to forests" and the enclosure policy, which will obviously reduce the income of farmers and forestry workers. Does the government have effective measures to compensate them for their losses? Therefore, illegal logging has been repeatedly banned in many places.
However, when private contracts are granted for a long time, personal belongings are often protected to the greatest extent. "(7) From this perspective, China people often cherish their own property traditions, and I believe people will proceed from their own long-term interests, so as to protect them to the maximum extent. On this basis, coupled with macro-control, the effect should be very obvious. Therefore, it is worth considering to reform the current natural resources model in China.
concise
The legal system of environmental protection is a systematic project, which is not easy. Due to the particularity of China's national conditions and the causes of environmental problems, foreign environmental management measures (relative to solving China's environmental problems) do not have much experience to learn from. Only based on the actual situation of our country can we explore a feasible way suitable for the rule of law in China. This should be a long and difficult process, a great country, the era of rule of law has given us the heavy responsibility of protecting the environment, and we will continue along this road.
[reference]
(1) Ci Hai, Shanghai Ancient Books Publishing House, 348 pages.
(2)( 1)
(3) China Environment Bulletin Ma Shijun 1988- 12-30.
(4) Ecological Perspective of China, Beijing: Science Press, 1990.
(5) Loudly: "Environmental Problems in Contemporary China", "Teaching and Research" No.8.
1998(6)
(7) Aristotle's book General Principles of Man and Civil Law: Politics, The Commercial Press, 1983, p. 328.