环境法在军事领域的适用研究
发布时间：2018-08-04 17:37
【摘要】：在我国现代化进程中,如何科学地处理环境保护和军事发展的相互关系,实现两者的互利耦合,是一个无法回避和日益突出的问题。本文旨在从法律的角度尝试解决这一问题。 很难否认,我国环境法肇始于对民用领域环境问题的因应。与民用领域环境问题相比,军事领域环境问题既有与之相似的一面,亦有相异的一面。尤其是,军事领域的首要任务——赢得或遏制战争——往往是通过展示更强的破坏力(直接或间接及于环境),如武器的杀伤力和使用杀伤力的能力等,予以实现的。这与环境法预防和消除环境破坏要求之间形成内在的冲突。在军事安全威胁和环境安全威胁共存的当代社会,任何在两者之间单选一的试图都是不可能的。本文意图通过前瞻性的环境法适用制度安排和实施,在两者之间建立起科学有效的平衡关系。 本文主要由引言、结语及五章正文组成。 第一部分为前言,简要论述了论文选题的背景和意义、与选题有关的主要文献观点、论文的主要研究方法以及篇章架构。从严格的环境法角度观之,和平时期的许多军事活动都有“非法”之嫌：军队不仅像一个大型重工业企业一样,消耗资源、排放污染；而且许多武器就是以追求最大破坏力为意图设计和研制出来的。这些武器在和平时期,通过试验、训练等军事活动对国民赖以为生和追求幸福的本土环境造成不同程度的损害。尤其是一些现代武器的损害远非单个企业经济活动所可比拟。如果对这些“非法”行为施于严格的环境法规范,可能对同样“直逼国民生存和幸福底线”的军事目标的达成造成不同程度的“妨害”。军事需要与环境法规范之间的这种局部冲突,能否及如何通过环境法在军事领域的适用机制,在两者之间建立一种适当的平衡加以解决,既要避免以军事绝对优先排斥环境法对军事活动的规范；又要避免无视军事特质,无差别地规范军事活动,此即为本文之选题及研究目的。该选题在当前我国同时面临潜在的军事威胁和严重的环境威胁之时,尤显重要。具体而言,选题意义主要表现在四个方面,研究环境法在军事领域的适用是践行军、地生态文明理念的必然要求；研究环境法在军事领域的适用是实现“环境效益与军事效益相统一”的迫切需要；研究环境法在军事领域的适用是填补环境立法空白的理论积淀；研究环境法在军事领域的适用是化解军地环境纠纷的前提条件。就选题现有相关文献来看,在目前所搜集的国内资料中,尚未发现与本文选题一致或大体一致的相关文献。国外的文献主要考察了美国的有关文献,其中多数是对美国现有环境法在军事领域适用机制的实证性研究,其视角多围绕军事与环境实际问题展开,少有直接指导两者平衡的理论性研究。而且,在一些关键性问题中,学者观点林林总总,泾渭分明,尚未达成一致。为使本文研究在思维脉络及方法上有一个程序可供进行,本文以军事领域环境问题作为逻辑起点,研究环境法因应这一问题的理论基础和美国及中国现行适用实践得失,在此基础上提出我国的应然适用机制框架。在研究方法上,理论研究主要采用了利益法学研究方法；实证研究主要采用了比较研究方法。 研究环境法在军事领域的适用,其现实动机源于军事领域环境问题的凸现。与环境法肇始之初意欲解决的经济等民用领域环境问题相比,军事领域环境问题既有相似之点,又有不同之处。环境法能否适用、如何适用在很大程度上取决于两个领域环境问题的同异程度。由此角度观之,军事领域环境问题乃适用理论研究的直观逻辑起点。因此,欲解决环境法在军事领域的适用,需首先对这一居于逻辑前提地位的现象进行深刻剖析。论文第一章即围绕环境法在军事领域适用研究的逻辑起点——军事领域环境问题展开,全面、深入地阐述了军事领域环境问题的涵义、表现形式及特殊性质。军事领域环境问题是军事活动引发的环境问题,它是随着军事主战武器的变革而演进且历时性存在的环境问题,与其他社会领域环境问题相比,既有相同之处,又有相异之点。按照军事活动、主战武器类型以及与其他领域环境问题的相异性不同,可将军事领域环境问题分为战时和平时环境问题。战时环境问题包括主动和被动环境损害问题；平时环境问题包括普通环境问题和军事特种环境问题。这些环境问题,特别是军事特种环境问题具有公益性、超常性、综合性、保密性和跨界性等五大特性。这些特性是本章研究的重心,也是后续理论研究的逻辑起点,且作为一条主线贯穿于全文。 军事领域环境问题最突出、亦是最重要的特性在于引发这些问题的军事活动具有极强的公益性,其他特性一定程度皆由此衍生而来,这一点正是环境法——旨在解决私益活动引发的环境问题——适用于军事领域面对的最大挑战。如果说民用领域环境法的适用主要是通过调整私人环境利益与公共环境利益之间的关系,实现法.之目的,那么适用于军事领域时,则首先需要对同具有公益性的军事利益与环境利益关系做出反映和调节。这是环境法在军事领域适用机制的核心。 第二章旨在从理论层面探讨应对此一挑战的理论基础和指导原则。本章主要运用了价值分析、风险层次理论和需求层次理论,对两种公益发生冲突时的位序进行深入的探讨,勾勒出两者的动态位序关系,即当军事安全处于高度风险等级时,应当优先考虑军事利益,但不能对环境利益造成不必要的损害；处于中等风险层级时,应当优先考虑环境利益,但不能对军事利益造成过分的妨害；当军事安全处于低风险层级时,应当优先考虑环境利益。两者利益的这种动态位序关系,应当在环境法的军事领域适用机制中体现出来,即通过具体的权力义务设置和实施在两种利益之间建立一种合理的平衡关系。在设置这些权力义务时,必须坚持三个基本原则,整体上坚持普遍适用与个别例外相结合的原则；个别例外授权形式,应当坚持法律保留与自由裁量相结合的原则；在确定个别例外的范围时,应当坚持军事必要与比例原则相结合的原则。 理论的意义在于指导实践,应对环境法在军事领域适用面临的挑战,最终需要落实于具体制度及制度的实施。现有的实践,为我们运用理论,比较、分析适用机制的优劣提供了范本。第三章以美国为范本,从比较法的视角对美国环境法因应军事领域环境问题特性的适用实践进行了全面和详尽的阐释和分析。美国环境法在军事领域的适用,整体上经历了基本不适用到适用范围扩大再到适当限制适用范围三个阶段。目前,美国现行事先预防、事中行为管制和事后救济三类环境法在军事领域的适用,已形成较为完善的机制体系。立法上,明确将军事活动纳入环境法规范体系,赋予军事机构广泛的环境保护义务；同时,多数主要环境法针对军事活动的特殊性,明确规定了少数义务豁免的例外情形；此外,针对某些军事特种活动制定了专门的立法。在法的实施过程中,联邦和各州环境监管部门对涉及环境保护的军事活动享有执法权；立法中的公民诉讼条款同样适用于与环境保护相关的军事活动。行政和司法部门在处理有关军事环境问题的个案时,建立起一些平衡两种利益的执法机制。军事机构内部亦建立起以“治理”、“守法”、“污染预防”和“保育”为核心的环境法守法机制。美国现行适用机制的突出特点是允许军事例外,但满足例外的要件要求极其严格。尽管美国国内对于现行环境法在军事领域适用机制褒贬不一,军事机构自2001年以来一直没有停止试图通过修订部分环境法扩大例外范围的努力,但比照前章基本原则,笔者以为美国现有环境法适用机制较好地体现了三大原则的基本要求。 分析研究国外适用实践只是为研究我国的适用机制提供一个可比较的参照物。第四章对比性地阐述、分析了我国环境法在军事领域的适用的演进历程,以及预防、管制和救济三类环境法规范在军事领域的适用实践,以期发现问题,探寻待完善之处。比照美国环境法在军事领域适用历程,我国环境法在军事领域的适用基本上还停留在主要由军事机关内部条例自行规范的阶段。立法上,人大及其常委会颁布的环境立法缺少将军事活动纳入统一的环境法规范体系的明确规定。一些立法或者将义务主体限定在“企业事业单位”；或者明确将监督管理权力授予军事机关；或者将立法及监督管理权力一并授予军事机关。尽管军事条例主动将其涉及环境保护的活动归入国家环境保护事业当中,提出贯彻执行国家环境保护方针、政策、法律、法规,接受国家环境保护主管部门的指导和监督的要求,但由于我国军事机关的特殊地位,外部监督不足,加之司法的相对独立性,致使军事机关在环境保护规范及其实施方面享有约束较弱的自由裁量权,事实上形成了军、地环境保护双轨法律运行机制。这种适用机制,既很难确保环境利益得到有效的维护,实际上也很难起到更好地维护军事利益的作用,由于法律没有明确的例外规定,军事条例在涉及潜在冲突的情形时,只能采用模糊的不确定规定。一旦发生军地纠纷,因无明确规定可依,极易造成漫天要价或者久拖不决的局面,从而影响军事战备活动。当前可能促成这种纠纷频率和规模增大的诸多因素同时存在。一方面军事战备任务加重、新军事变革需要的战备空间加大可能引发更多环境问题；另一方面城市化规模不断扩大,更多的居民生活在与军事设施“一墙之隔”的区域,加之居民环境意识极大提高。这些因素共同作用的结果,很可能造成军地环境纠纷频率和规模的增大,迫使我们尽快改变和完善现有的适用机制。 第五章内容针对我国环境法在军事领域适用实践中存在的不足之处,从立法、执法和守法三个方面,勾画出我国环境法在军事领域适用机制框架体系。立法上,首先应明确将军事活动纳入环境法规体系。其次,明确某些军事活动环境保护义务减免的严格要件。坚持公开原则,完善预防类环境立法；引入明确的例外规定,重塑我国管制类环境法适用制度；将军事环境补偿和赔偿纳入国家赔偿范围,建构我国救济类环境法适用制度。执法上,重视协调地方与军队环境监管部门的执法关系,充分发挥军队和地方环境保护监督管理部门的执法作用,加强国家环境保护监督管理部门统一监管和协调职能,重视和发挥司法的执法作用,以期形成切实有效的执法体系。守法上,改变军事机关“军事绝对优先”的传统思维惯势,增大环境教育和培训力度,增强环境意识；增大人力、物力和财力投入,确实履行环境法律义务；同时,建立广泛的守法合作关系,畅通与环保部和驻地环境保护监督管理部门及驻地群众组织的沟通与协作,及时发现和解决环境守法存在的问题,以期更好地发挥军事机关环境守法的楷模作用。 最后部分为结语,对全篇主要论点进行梳理和展望。
[Abstract]:In the process of China's modernization, how to scientifically deal with the relationship between environmental protection and military development and realize the mutual benefit coupling between the two is an unavoidable and increasingly prominent problem. This paper tries to solve this problem from the legal point of view.
It is difficult to deny that the environmental law of our country begins with the cause of the environmental problems in the civil field. Compared with the civil field, the environmental problems in the military field are both similar and different. Especially, the primary task of the military field is to win or contain the war by showing more destructive power (direct). An internal conflict between the environmental law prevention and elimination of environmental damage. In a contemporary society where the threat of military security and the threat of environmental security coexist, any attempt to choose one between the two is impossible. The plan establishes a scientific and effective balance between the two systems through the arrangement and implementation of the prospective environmental law applicable system.
This article is mainly composed of the introduction, the conclusion and the five chapters.
The first part is the preface, briefly discussing the background and significance of the topic selection, the main literature views related to the topic, the main research methods and the structure of the text. From the strict environmental law perspective, many military activities in the peaceful period are "illegal": the army is not only like a large heavy industrial enterprise, but also the army is like a large heavy industrial enterprise. Resources, pollution, and many weapons are designed and developed in the pursuit of maximum destructive power. These weapons in peacetime, through experiments, training and other military activities to cause different degrees of damage to the nation's livelihood and the pursuit of happiness in the local environment. Especially, some modern weapons are far from a single enterprise. If the "illegal" act is strictly regulated by the environmental law, it may cause a different degree of "nuisance" to the achievement of the same military goal of "forcing the national survival and the bottom line". The conflict between the military needs and the environmental law norms, and how and how to use the environmental law in the army. The applicable mechanism of the field of affairs is to set up a proper balance between the two. It is necessary to avoid the absolute exclusion of the military activities by the military absolute priority, and to avoid disregard of the military characteristics and standardize the military activities without discrimination. This is the topic of this paper and the purpose of research. The significance of the military threat and serious environmental threat is particularly important. In particular, the significance of the topic is mainly shown in four aspects. The study of the application of environmental law in the military field is the inevitable requirement of the practice of army and the concept of ecological civilization, and the application of the study of environmental law in the military field is to realize "the unity of environmental benefits and military benefits". The application of the study of environmental law in the military field is the accumulation of theoretical gaps in the environmental legislation; the application of the study of environmental law in the military field is the precondition for dissolving the disputes of the military and land environment. Foreign literature mainly examines the relevant literature of the United States, most of which are an empirical study of the applicable mechanism of the existing environmental law in the military field of the United States. Its perspective is mostly centered on the practical problems of military and environment, and few theoretical studies directly guide the balance of the two. Moreover, some of the key issues are the scholars' views. In order to make the study in the context of thinking and methods available, this article takes the environmental problems in the military field as a logical starting point, and studies the theoretical basis of the environmental law and the current applicable practice of the United States and China. However, the framework of the applicable mechanism. In the research method, the theoretical research mainly uses the method of interest law; Empirical research mainly uses comparative research methods.
To study the application of environmental law in the military field, its practical motive stems from the emergence of the environmental problems in the military field. Compared with the environmental problems in the civil field, such as the economic and other economic areas which are intended to be solved at the beginning of the environmental law, the environmental problems in the military field have both similarities and differences. In this view, the environmental problem in the military field is an intuitive logical starting point for the application of theoretical research. Therefore, in order to solve the application of the environmental law in the military field, it is necessary to make a profound analysis of the phenomenon of the logical precondition. The first chapter is about the application of environmental law in the military field. With the logical starting point of the study, the environmental problems in the military field, the connotation, form and special nature of the environmental problems in the military field are thoroughly and thoroughly expounded. The environmental problems in the military field are the environmental problems caused by military activities. It is the environmental problem that evolves with the evolution of military main war weapons and its diachronic problems. Compared with the environmental problems in his social field, there are similarities and differences. According to the military activities, the types of arms and the differences with other environmental problems, the military environment problems can be divided into wartime and peacetime environmental problems. The problems include ordinary environmental problems and military special environment problems. These environmental problems, especially the military special environment problems, have five characteristics, such as public welfare, supernormality, comprehensiveness, confidentiality and transboundary nature. These characteristics are the focus of this chapter and the logical starting point of the follow-up theory research, and as a main line run through the full text.
The most prominent and most important feature of the military field environment is that the military activities that cause these problems are highly commonweal, and the other features are derived from this point, which is the environmental law, which aims to solve the environmental problems caused by private interest activities - the greatest challenge facing the military field. It is said that the application of environmental law in the civil field is mainly through adjusting the relationship between the interests of the private environment and the interests of the public environment to realize the law. Then, when it applies to the military field, it should first reflect and adjust the relationship between the military interests and the environmental interests with the public welfare. This is the application mechanism of the environmental law in the military field. The core.
The second chapter aims to discuss the theoretical basis and guiding principles of the challenge from the theoretical level. This chapter mainly uses the value analysis, the risk level theory and the demand level theory, and explores the sequence of the two kinds of public welfare conflicts, and outlines the dynamic position relation of the two, that is, when the military security is at a high level of risk. At the time, we should give priority to the military interests, but do not cause unnecessary damage to the environmental interests. At the middle level, we should give priority to the environmental interests, but do not cause excessive nuisance to the military interests. When the military security is at a low risk level, the environmental interests should be given priority. This dynamic preface of the two interests should be considered. The relationship should be embodied in the application mechanism of the military field of environmental law, that is to establish a reasonable balance relationship between the two interests through the setting and implementation of specific power and obligation. In setting these powers and obligations, the three basic principles must be adhered to, and the principle of universal application and the combination of individual cases with individual cases should be adhered to on the whole; In the form of exceptional authorization, the principle of combining legal reservation with discretion should be adhered to. In determining the scope of individual exceptions, the principle of combining military necessity with the principle of proportionality should be adhered to.
The significance of the theory lies in guiding practice, dealing with the challenges facing the application of environmental law in the military field, and ultimately implementing the implementation of specific systems and systems. The existing practice provides a model for the use of theory, comparison and analysis of the advantages and disadvantages of the application mechanism. The third chapter takes the United States as a model and from the perspective of comparative law to the environmental law of the United States. The application of the characteristics of the environmental problems in the military field is fully and thoroughly explained and analyzed. The application of the American environmental law in the military field has gone through the three stages of the general lack of application to the extension of the scope of application to the appropriate limits of the applicable scope. At present, the current three kinds of rings in the United States are pre prevention, action control and post relief. The application of border law in the military field has formed a more perfect mechanism system. On the legislative basis, the military activities are clearly incorporated into the standard system of environmental law, and the military institutions are given extensive environmental protection obligations. At the same time, the exception of the minority compulsory immunity is clearly defined by the majority of the major environmental laws, in view of the particularity of the military activities. Some special military special activities have formulated special legislation. During the implementation of the law, the federal and state environmental regulators enjoy law enforcement power for military activities involving environmental protection; the provisions of civil action in the legislation also apply to military activities related to environmental protection. The administrative and judicial departments are dealing with related military environment problems. In the case of the case, a number of law enforcement mechanisms are established to balance the two interests. In the military institutions, the environmental law abiding mechanism, with the core of "governance", "law abiding", "pollution prevention" and "conservation", is also established. The outstanding characteristics of the current application mechanism of the United States are to allow military exceptions, although the requirements for meeting exceptions are extremely strict. In the United States, the United States has different opinions on the application mechanism of current environmental law in the military field. Since 2001, military institutions have not stopped trying to expand the scope of the exceptions by revising some environmental laws. But, compared with the basic principles of the previous chapter, the author thinks that the existing environmental law applicable mechanism in the United States embodies the basic requirements of the three principles.
The analysis and study of the application of foreign practice only provides a comparative reference for the study of the applicable mechanism of our country. The fourth chapter contrasts the evolution of the application of environmental law in the military field, as well as the practical practice of the three categories of environmental laws and regulations in the field of prevention, control and relief, in order to find out the problems and explore the fourth The application of the environmental law in the military field, the application of environmental law in the military field is basically still at the stage of the regulation of the internal regulations of the military organs. In legislation, the environmental legislation promulgated by the people's Congress and its Standing Committee lack the general environmental law to be included in the unified environmental law system. Provisions. Some legislation or the limitation of the subject of obligation to the "enterprise and public institution"; or to explicitly confer the power of supervision and management to a military organ; or to grant the power of the legislative and supervisory authority to a military organ. Although the military regulations voluntarily put their activities involved in environmental protection into the state's environmental protection, it is put forward and carried out. Implementing the guidelines, policies, laws and regulations of the state, and the requirements of the guidance and supervision of the competent authorities of the state environmental protection, but because of the special status of the military organs, the lack of external supervision and the relative independence of the judiciary, the military organs have a weak restriction on the environmental protection norms and their implementation. In fact, it has formed a double track legal operation mechanism for the protection of the environment, which is difficult to ensure the effective maintenance of the environmental interests and in fact it is difficult to play a better role in maintaining the military interests. Because there is no clear exception in the law, the military regulations can only be blurred when it comes to the situation of potential conflicts. In the event of a military and land dispute, there is no clear provision for military and land disputes, which will easily lead to a big price or a prolonged situation that will affect military combat readiness. At the moment, many factors that may contribute to the increasing frequency and scale of this dispute exist simultaneously.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：D912.6
本文编号：2164611
[Abstract]:In the process of China's modernization, how to scientifically deal with the relationship between environmental protection and military development and realize the mutual benefit coupling between the two is an unavoidable and increasingly prominent problem. This paper tries to solve this problem from the legal point of view.
It is difficult to deny that the environmental law of our country begins with the cause of the environmental problems in the civil field. Compared with the civil field, the environmental problems in the military field are both similar and different. Especially, the primary task of the military field is to win or contain the war by showing more destructive power (direct). An internal conflict between the environmental law prevention and elimination of environmental damage. In a contemporary society where the threat of military security and the threat of environmental security coexist, any attempt to choose one between the two is impossible. The plan establishes a scientific and effective balance between the two systems through the arrangement and implementation of the prospective environmental law applicable system.
This article is mainly composed of the introduction, the conclusion and the five chapters.
The first part is the preface, briefly discussing the background and significance of the topic selection, the main literature views related to the topic, the main research methods and the structure of the text. From the strict environmental law perspective, many military activities in the peaceful period are "illegal": the army is not only like a large heavy industrial enterprise, but also the army is like a large heavy industrial enterprise. Resources, pollution, and many weapons are designed and developed in the pursuit of maximum destructive power. These weapons in peacetime, through experiments, training and other military activities to cause different degrees of damage to the nation's livelihood and the pursuit of happiness in the local environment. Especially, some modern weapons are far from a single enterprise. If the "illegal" act is strictly regulated by the environmental law, it may cause a different degree of "nuisance" to the achievement of the same military goal of "forcing the national survival and the bottom line". The conflict between the military needs and the environmental law norms, and how and how to use the environmental law in the army. The applicable mechanism of the field of affairs is to set up a proper balance between the two. It is necessary to avoid the absolute exclusion of the military activities by the military absolute priority, and to avoid disregard of the military characteristics and standardize the military activities without discrimination. This is the topic of this paper and the purpose of research. The significance of the military threat and serious environmental threat is particularly important. In particular, the significance of the topic is mainly shown in four aspects. The study of the application of environmental law in the military field is the inevitable requirement of the practice of army and the concept of ecological civilization, and the application of the study of environmental law in the military field is to realize "the unity of environmental benefits and military benefits". The application of the study of environmental law in the military field is the accumulation of theoretical gaps in the environmental legislation; the application of the study of environmental law in the military field is the precondition for dissolving the disputes of the military and land environment. Foreign literature mainly examines the relevant literature of the United States, most of which are an empirical study of the applicable mechanism of the existing environmental law in the military field of the United States. Its perspective is mostly centered on the practical problems of military and environment, and few theoretical studies directly guide the balance of the two. Moreover, some of the key issues are the scholars' views. In order to make the study in the context of thinking and methods available, this article takes the environmental problems in the military field as a logical starting point, and studies the theoretical basis of the environmental law and the current applicable practice of the United States and China. However, the framework of the applicable mechanism. In the research method, the theoretical research mainly uses the method of interest law; Empirical research mainly uses comparative research methods.
To study the application of environmental law in the military field, its practical motive stems from the emergence of the environmental problems in the military field. Compared with the environmental problems in the civil field, such as the economic and other economic areas which are intended to be solved at the beginning of the environmental law, the environmental problems in the military field have both similarities and differences. In this view, the environmental problem in the military field is an intuitive logical starting point for the application of theoretical research. Therefore, in order to solve the application of the environmental law in the military field, it is necessary to make a profound analysis of the phenomenon of the logical precondition. The first chapter is about the application of environmental law in the military field. With the logical starting point of the study, the environmental problems in the military field, the connotation, form and special nature of the environmental problems in the military field are thoroughly and thoroughly expounded. The environmental problems in the military field are the environmental problems caused by military activities. It is the environmental problem that evolves with the evolution of military main war weapons and its diachronic problems. Compared with the environmental problems in his social field, there are similarities and differences. According to the military activities, the types of arms and the differences with other environmental problems, the military environment problems can be divided into wartime and peacetime environmental problems. The problems include ordinary environmental problems and military special environment problems. These environmental problems, especially the military special environment problems, have five characteristics, such as public welfare, supernormality, comprehensiveness, confidentiality and transboundary nature. These characteristics are the focus of this chapter and the logical starting point of the follow-up theory research, and as a main line run through the full text.
The most prominent and most important feature of the military field environment is that the military activities that cause these problems are highly commonweal, and the other features are derived from this point, which is the environmental law, which aims to solve the environmental problems caused by private interest activities - the greatest challenge facing the military field. It is said that the application of environmental law in the civil field is mainly through adjusting the relationship between the interests of the private environment and the interests of the public environment to realize the law. Then, when it applies to the military field, it should first reflect and adjust the relationship between the military interests and the environmental interests with the public welfare. This is the application mechanism of the environmental law in the military field. The core.
The second chapter aims to discuss the theoretical basis and guiding principles of the challenge from the theoretical level. This chapter mainly uses the value analysis, the risk level theory and the demand level theory, and explores the sequence of the two kinds of public welfare conflicts, and outlines the dynamic position relation of the two, that is, when the military security is at a high level of risk. At the time, we should give priority to the military interests, but do not cause unnecessary damage to the environmental interests. At the middle level, we should give priority to the environmental interests, but do not cause excessive nuisance to the military interests. When the military security is at a low risk level, the environmental interests should be given priority. This dynamic preface of the two interests should be considered. The relationship should be embodied in the application mechanism of the military field of environmental law, that is to establish a reasonable balance relationship between the two interests through the setting and implementation of specific power and obligation. In setting these powers and obligations, the three basic principles must be adhered to, and the principle of universal application and the combination of individual cases with individual cases should be adhered to on the whole; In the form of exceptional authorization, the principle of combining legal reservation with discretion should be adhered to. In determining the scope of individual exceptions, the principle of combining military necessity with the principle of proportionality should be adhered to.
The significance of the theory lies in guiding practice, dealing with the challenges facing the application of environmental law in the military field, and ultimately implementing the implementation of specific systems and systems. The existing practice provides a model for the use of theory, comparison and analysis of the advantages and disadvantages of the application mechanism. The third chapter takes the United States as a model and from the perspective of comparative law to the environmental law of the United States. The application of the characteristics of the environmental problems in the military field is fully and thoroughly explained and analyzed. The application of the American environmental law in the military field has gone through the three stages of the general lack of application to the extension of the scope of application to the appropriate limits of the applicable scope. At present, the current three kinds of rings in the United States are pre prevention, action control and post relief. The application of border law in the military field has formed a more perfect mechanism system. On the legislative basis, the military activities are clearly incorporated into the standard system of environmental law, and the military institutions are given extensive environmental protection obligations. At the same time, the exception of the minority compulsory immunity is clearly defined by the majority of the major environmental laws, in view of the particularity of the military activities. Some special military special activities have formulated special legislation. During the implementation of the law, the federal and state environmental regulators enjoy law enforcement power for military activities involving environmental protection; the provisions of civil action in the legislation also apply to military activities related to environmental protection. The administrative and judicial departments are dealing with related military environment problems. In the case of the case, a number of law enforcement mechanisms are established to balance the two interests. In the military institutions, the environmental law abiding mechanism, with the core of "governance", "law abiding", "pollution prevention" and "conservation", is also established. The outstanding characteristics of the current application mechanism of the United States are to allow military exceptions, although the requirements for meeting exceptions are extremely strict. In the United States, the United States has different opinions on the application mechanism of current environmental law in the military field. Since 2001, military institutions have not stopped trying to expand the scope of the exceptions by revising some environmental laws. But, compared with the basic principles of the previous chapter, the author thinks that the existing environmental law applicable mechanism in the United States embodies the basic requirements of the three principles.
The analysis and study of the application of foreign practice only provides a comparative reference for the study of the applicable mechanism of our country. The fourth chapter contrasts the evolution of the application of environmental law in the military field, as well as the practical practice of the three categories of environmental laws and regulations in the field of prevention, control and relief, in order to find out the problems and explore the fourth The application of the environmental law in the military field, the application of environmental law in the military field is basically still at the stage of the regulation of the internal regulations of the military organs. In legislation, the environmental legislation promulgated by the people's Congress and its Standing Committee lack the general environmental law to be included in the unified environmental law system. Provisions. Some legislation or the limitation of the subject of obligation to the "enterprise and public institution"; or to explicitly confer the power of supervision and management to a military organ; or to grant the power of the legislative and supervisory authority to a military organ. Although the military regulations voluntarily put their activities involved in environmental protection into the state's environmental protection, it is put forward and carried out. Implementing the guidelines, policies, laws and regulations of the state, and the requirements of the guidance and supervision of the competent authorities of the state environmental protection, but because of the special status of the military organs, the lack of external supervision and the relative independence of the judiciary, the military organs have a weak restriction on the environmental protection norms and their implementation. In fact, it has formed a double track legal operation mechanism for the protection of the environment, which is difficult to ensure the effective maintenance of the environmental interests and in fact it is difficult to play a better role in maintaining the military interests. Because there is no clear exception in the law, the military regulations can only be blurred when it comes to the situation of potential conflicts. In the event of a military and land dispute, there is no clear provision for military and land disputes, which will easily lead to a big price or a prolonged situation that will affect military combat readiness. At the moment, many factors that may contribute to the increasing frequency and scale of this dispute exist simultaneously.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：D912.6
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