生态修复责任的基础研究与实现路径

生态修复是一项系统性的工程,对专业技术要求较高,国家和地方层面都有相关立法规范用于规范和约束生态修复行为,目前已经形成一套相对成熟的立法体系。从法条的梳理可知,法律层面的生态修复责任包含两个方面:即直接的生态修复和间接的生态修复。直接的生态修复,即人为采取各项修复措施,直接对受损的生态系统进行修复;间接的生态修复,即通过各类设施设备的运转以实现对生态环境的功能修复。文章在简要分析生态修复基本内涵及生态修复责任法律表达的基础上,从目标法益、判断标准、责任形式和实际成效等四个方面对比生态修复责任与恢复原状责任的不同之处。而这也是生态修复责任作为新型环境责任形式,其"新"主要体现之处。但不可否认的是,在实践中,生态修复责任作为一种新型环境责任形式,尚处于起步阶段,其实现进程中面临着诸多障碍,诸如生态修复责任能否被法律予以明确表达,生态修复责任的实现程序是否有章可循,生态修复责任的实现是否具备充足的保障措施。面对这些实践中存在的障碍和问题,我们应理性、客观地思考问题,从而解决问题。生态修复责任的实现是将我国现行法律体系中有关生态修复责任的法制度安排通过法实践的方式得以实现,是从应然到实然的一个过程。为实现生态修复责任的最优价值,文章认为可以从明晰生态修复责任的概念与性质,从单行法或者相关法的实施细则中健全生态修复责任法律规范体系,从制度设计和物质方面完善生态修复责任实现的保障措施,从建立第三方参与制度等方面提出生态修复责任的实现路径,以期对生态修复责任制度的良好施行有所裨益。

The basic research and achieving methods of responsibility for ecological restoration

Ecological restoration is a systematic project with high requirements for professional technology. There are relevant legislative norms at both the national and local levels to standardize and restrain ecological restoration behaviors. At present, a relatively mature legislative system has been formed. By combing the articles of law, it can be found that the responsibility for ecological restoration includes two aspects, direct ecological restoration and indirect ecological restoration. The former refers to the direct restoration of damaged ecosystem by taking artificial restoration measures, the latter refers to the functional restoration of the ecological environment through the operation of various facilities and equipment. Based on a brief analysis of the basic connotation of ecological restoration and the legal expression of responsibility for ecological restoration, the differences between the responsibility for ecological restoration and responsibility for restoring to original condition are compared from four aspects in this article, including the target legal interest, yardstick, liability form and actual effect. And this is why the responsibility for ecological restoration is called a new form of environmental responsibility. However, still at its starting stage, it also meets obstacles such as vague legal expression, imperfect legislation and incomplete safety guarding and so on. In the face of these obstacles and problems, people should be rational and objective in order to solve them. In sum, the realization of ecological restoration responsibility is to realize the legal arrangement of ecological restoration responsibility in the current legal system through legal practice. It is a process from what should be to what is. The way to realize the responsibility for ecological restoration is proposed from the aspects of clarifying the concept and character of it, perfecting the legal norms, improving the safeguard measures for the realization of it, and establishing a third party participation system. It is expected that this would be beneficial to the implementation of ecological restoration responsibility system.