环境纠纷替代性解决机制研究

发布时间：2018-02-22 10:21

本文关键词： 环境纠纷 ADR解决机制司法救济行政处理　出处：《华中科技大学》2009年硕士论文　论文类型：学位论文

【摘要】： 随着世界经济的不断增长,人民生活水平和环保意识的提高,环境问题已经成为广大民众所关心的热点问题,随之越来越多的环境纠纷诉至法院,然而有限的司法资源已难以承受环境案件繁多复杂之重。ADR具有灵活解决纠纷、合理分配司法资源、降低纠纷解决成本等功能。ADR机制解决环境纠纷的实践在过完已经相当成熟和完善,对外国用ADR解决环境纠纷成功的国家进行归纳并结合我国传统法律文化等因素引进该制度对于重塑我国非诉讼纠纷解决体系具有重大的现实意义。环境纠纷ADR模式是指运用ADR的主要方法,如协商、调节、仲裁等非诉讼方式来解决环境纠纷,其制度要点是用非诉讼方式来解决环境纠纷、解决程序上的非正式性、环境纠纷ADR解决方式的多样性。由于传统的诉讼制度在解决环境纠纷方面存在固有的不足,各国纷纷转向对非诉讼解决机制的研究和构建,而各国的实践也证明环境纠纷非诉讼解决机制对环境纠纷的解决起到了非常重要的作用,取得了明显的效果,由此可见建立环境纠纷ADR机制的必要性。ADR对于解决环境纠纷有着非常明显的优势,例如在环境纠纷发生后,损害人和受害人想到的不是通过法院解决,而是通过环境部门解决,而解决环境纠纷的专门机关在污染事故发生后,可以迅速派出专业技术人员查明污染原因、损害程度,从而能正确快速处理环境纠纷,其优越性大大明显于法院通过司法部门来解决。我国环境纠纷ADR机制中还存在着组织法不完善, ADR解决机制的法律效力不明确,环境纠纷仲裁机构发挥不出其本能的作用,以及行政救济和司法救济方面存在着缺陷等问题,因此重构我国环境纠纷ADR制度是任重而道远。然而我国环境纠纷ADR制度的构建又具有后发优势,因为外国的环境纠纷ADR模式,如美国、德国、日本以及我国台湾地区环境纠纷ADR模式建立的比较早而且取得良好的成效,其成功经验对构建我国环境纠纷ADR制度有着宝贵的借鉴作用,这样可以使我们少走弯路,使我国环境纠纷ADR机制建立得比较完善,又甚至后来居上。
[Abstract]:With the continuous growth of the world economy and the improvement of people's living standards and environmental awareness, environmental issues have become a hot issue of concern to the general public, and more and more environmental disputes have been brought to the courts. However, limited judicial resources have been unable to bear the heavy and complicated environmental cases. ADR has flexible dispute resolution and reasonable distribution of judicial resources. The practice of reducing the cost of dispute resolution and other functions. ADR mechanism to resolve environmental disputes has been quite mature and perfect. It is of great practical significance to remodel the non-litigation dispute resolution system of our country by summing up the successful countries using ADR to solve environmental disputes and introducing the system in combination with the traditional legal culture of our country. The ADR mode of environmental disputes refers to the main methods of ADR, such as negotiation, regulation, arbitration and other non-litigation methods to solve environmental disputes. The main points of its system are to solve environmental disputes by non-litigation methods, and to resolve the informal nature of the procedure. Due to the inherent deficiencies of traditional litigation system in resolving environmental disputes, many countries have turned to the research and construction of non-litigation settlement mechanism. The practice of various countries has also proved that the non-litigation settlement mechanism of environmental disputes has played a very important role in the settlement of environmental disputes and has achieved obvious results. It can be seen that the necessity of establishing ADR mechanism of environmental disputes has very obvious advantages in resolving environmental disputes. For example, after the occurrence of environmental disputes, people who harm them and victims think of solving them not through courts, but through environmental departments. After the environmental disputes have occurred, the specialized organs that settle environmental disputes can quickly send professional and technical personnel to find out the causes of pollution and the extent of damage, so that they can correctly and quickly handle environmental disputes. Its superiority is much more obvious than the court through the judicial department to solve. There are still some problems in the ADR mechanism of environmental disputes in our country, such as the imperfection of organic law, the unclear legal effect of ADR settlement mechanism, the inability of the arbitration institution of environmental disputes to play its instinctive role, and the defects in administrative relief and judicial relief. Therefore, it is a long way to rebuild the ADR system of environmental dispute in our country. However, the construction of ADR system of environmental dispute in China has the advantage of latecomer, because of the foreign ADR mode of environmental dispute, such as the United States, Germany, Germany, etc. The ADR model of environmental disputes in Japan and Taiwan has been established earlier and has achieved good results. Its successful experience can be used as a valuable reference for the construction of ADR system of environmental disputes in China, so that we can make less detours. The ADR mechanism of environmental disputes in China has been established more perfect, and even surpassed the former as the latter.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.6

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