环境损害索赔主体研究
发布时间：2018-08-05 14:34
【摘要】：环境损害主要是外在的人为原因引起的,一定环境平衡状态遭受的不利于人类及其他生物生存的显著的有害变化的事实。环境损害是“人的环境的损害”,这里的“人”是整体意义上的人类。因此,环境损害的受害人是人类;环境损害是对环境资源公共利益的损害;环境损害实质上损害的是满足人类环境利益需求的一定状态和质量的生态平衡。 确定环境损害索赔主体,有利于填补环境利益损害,化解社会危机;有利于填补法律空白,完善我国环境损害法律体系;有利于积累司法实践经验,强化环境法治。从理论上讲,损害索赔主体问题具体到民事诉讼领域即原告适格的问题,民事诉讼原告适格理论主要有当事人适格理论和诉的利益理论。由于环境损害的受害人是整体意义上的人类,环境损害的侵害对象环境利益并非传统的实体权利,而是一项法益。因此,当事人适格理论对环境损害索赔构成限制,而诉的利益理论则解决了环境损害索赔由谁启动的基本理论问题。 从域外法律看,美国法律规定政府部门是环境损害索赔的主体,政府作为特定自然资源的受托管理者,为了公众利益,必须尽到保管、保护自然资源的义务。而欧盟有关环境损害索赔主体确定的亮点是建立了两重赔偿权利人制度,即国家作为第一重赔偿权利人,非政府组织的公益团体和个人作为第二重赔偿权利人,当第一重赔偿权利人根本不行动或者行动不当时,第二重赔偿权利人即取得环境损害索赔资格。 我国可将国家作为环境损害索赔的第一重主体,个人、环保团体则作为环境损害索赔的第二重主体。国家作为第一重主体的理论依据是公共信托理论,即国家对环境利益享有“名义”上的所有权;源于社会公众的委托,国家有保障公众享有良好环境的义务。公民个人、环保社团作为环境损害索赔第二重主体,则主要是为了防止行政机关因自身能力和利益限制而损害公共利益。 国家作为环境损害索赔的第一重主体,需要由行政机关代表其进行环境损害索赔。行政机关代表国家进行环境损害索赔,一方面必须将环境损害索赔权集中在一个合适的部门统一行使,另一方面则应该采取陆地与海洋“分而治之”的方式。具体来讲,由环境保护主管部门集中行使陆地环境损害索赔权,由海洋行政主管部门集中行使海洋环境损害索赔权。但是,由于国家对信托财产并不享有所有权,因此,在行政机关代表国家进行环境损害索赔时,其损害索赔权必将受到某些限制,比如民事诉讼处分权的限制和赔偿款使用的限制。
[Abstract]:Environmental damage is mainly caused by external human causes and the fact that a certain state of environmental balance suffers significant harmful changes that are not conducive to the survival of human beings and other living things. Environmental damage is the damage of human environment. Therefore, the victims of environmental damage are human beings; environmental damage is damage to the public interests of environmental resources; environmental damage substantially damages the ecological balance of certain state and quality to meet the needs of human environmental interests. The determination of the main body of environmental damage claims is conducive to filling environmental interests damage and resolving social crisis; to fill the legal gap and perfect the legal system of environmental damage; to accumulate judicial practice experience; to strengthen the environmental rule of law. Theoretically speaking, the subject of damage claims is specific to the problem of plaintiff's qualification in the field of civil action. The theory of plaintiff's qualification in civil action mainly includes the theory of party's qualification and the theory of interest of litigation. Because the victims of environmental damage are human beings in the whole sense, the environmental interests of the victims of environmental damage are not traditional substantive rights, but a legal interest. Therefore, the theory of party fitness constitutes a limitation to the claim for environmental damage, while the theory of interest in litigation solves the basic theoretical problem of who started the claim for environmental damage. From the perspective of extraterritorial laws, the United States law stipulates that government departments are the subject of environmental damage claims. As entrusted managers of specific natural resources, the government must fulfill its obligation to preserve and protect natural resources for the benefit of the public. The bright spot of the EU regarding the environmental damage claim subject is the establishment of the dual compensation right holder system, that is, the state as the first compensation right holder, the public interest group and individual of the non-governmental organization as the second compensation right holder, and the state as the first compensation right holder, and the non-governmental organization public interest group and individual as the second compensation right holder. When the owner of the first compensation right does not act at all or the action is improper, the second right holder obtains the claim for environmental damage. In China, the state can be regarded as the first main body of environmental damage claim, the individual and the environmental protection organization as the second main body of environmental damage claim. The theoretical basis of the state as the primary subject is the theory of public trust, that is, the state enjoys "nominal" ownership of environmental interests, which originates from the entrustment of the public, and the state has the obligation to ensure the public to enjoy a good environment. Individual citizens, environmental protection organizations as the second main body of environmental damage claims, the main purpose is to prevent the administrative organs from harming the public interest because of their own ability and interests. As the first main body of environmental damage claims, the state needs to be represented by administrative organs to claim for environmental damage. On the one hand, the right to claim for environmental damage must be centralized in a suitable department, and on the other hand, the land and sea should be "divided and ruled". Specifically, the competent department of environmental protection centrally exercises the right to claim compensation for damage to the terrestrial environment, and the competent department of marine administration centrally exercises the right to claim for damages to the marine environment. However, since the State does not have ownership of the trust property, the right to claim for damage is bound to be limited when an administrative organ makes a claim for environmental damage on behalf of the State, For example, the limitation of the right of disposition and the limitation of the use of compensation.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.68;D923
本文编号：2166081
[Abstract]:Environmental damage is mainly caused by external human causes and the fact that a certain state of environmental balance suffers significant harmful changes that are not conducive to the survival of human beings and other living things. Environmental damage is the damage of human environment. Therefore, the victims of environmental damage are human beings; environmental damage is damage to the public interests of environmental resources; environmental damage substantially damages the ecological balance of certain state and quality to meet the needs of human environmental interests. The determination of the main body of environmental damage claims is conducive to filling environmental interests damage and resolving social crisis; to fill the legal gap and perfect the legal system of environmental damage; to accumulate judicial practice experience; to strengthen the environmental rule of law. Theoretically speaking, the subject of damage claims is specific to the problem of plaintiff's qualification in the field of civil action. The theory of plaintiff's qualification in civil action mainly includes the theory of party's qualification and the theory of interest of litigation. Because the victims of environmental damage are human beings in the whole sense, the environmental interests of the victims of environmental damage are not traditional substantive rights, but a legal interest. Therefore, the theory of party fitness constitutes a limitation to the claim for environmental damage, while the theory of interest in litigation solves the basic theoretical problem of who started the claim for environmental damage. From the perspective of extraterritorial laws, the United States law stipulates that government departments are the subject of environmental damage claims. As entrusted managers of specific natural resources, the government must fulfill its obligation to preserve and protect natural resources for the benefit of the public. The bright spot of the EU regarding the environmental damage claim subject is the establishment of the dual compensation right holder system, that is, the state as the first compensation right holder, the public interest group and individual of the non-governmental organization as the second compensation right holder, and the state as the first compensation right holder, and the non-governmental organization public interest group and individual as the second compensation right holder. When the owner of the first compensation right does not act at all or the action is improper, the second right holder obtains the claim for environmental damage. In China, the state can be regarded as the first main body of environmental damage claim, the individual and the environmental protection organization as the second main body of environmental damage claim. The theoretical basis of the state as the primary subject is the theory of public trust, that is, the state enjoys "nominal" ownership of environmental interests, which originates from the entrustment of the public, and the state has the obligation to ensure the public to enjoy a good environment. Individual citizens, environmental protection organizations as the second main body of environmental damage claims, the main purpose is to prevent the administrative organs from harming the public interest because of their own ability and interests. As the first main body of environmental damage claims, the state needs to be represented by administrative organs to claim for environmental damage. On the one hand, the right to claim for environmental damage must be centralized in a suitable department, and on the other hand, the land and sea should be "divided and ruled". Specifically, the competent department of environmental protection centrally exercises the right to claim compensation for damage to the terrestrial environment, and the competent department of marine administration centrally exercises the right to claim for damages to the marine environment. However, since the State does not have ownership of the trust property, the right to claim for damage is bound to be limited when an administrative organ makes a claim for environmental damage on behalf of the State, For example, the limitation of the right of disposition and the limitation of the use of compensation.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.68;D923
【引证文献】
相关硕士学位论文 前1条
1 宫晴晴;海洋生态环境损害国家索赔制度初探[D];华东政法大学;2012年
，本文编号：2166081
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