论协商民主机制在中国环境法治中的应用

环境保护作为公共事务，需要一种公共治理模式，在公共治理中政府、企业与公民社会团体都不是也不应该是唯一的治理主体。环境协商民主机制是建立环境治理主体良性互动网络治理机制的最佳途径，是突破环境法律制度瓶颈的必然选择，是实现环境公共领域良好治理的重要保障。环境协商民主机制在环境法治中能够并应该发挥“造法”功能，为环境法的理念、原则和制度创新提供合法性基础。环境法治需要依赖环境协商民主机制，通过建立和完善相应的程序机制，保障政府、企业和公民社会团体以平等的身份通过民主协商设定各自的行动范围和有效边界，设定各自的权力、权利和义务的内容，实现环境公平正义。环境协商民主在中国还是一个新事物，应受到环境法学界的关注。

Deliberative Democracy Mechanism in the Rule of China's Environmental Law

The development history of deliberative democracy itself, as a form of democracy, has only a short span of thirty years. With the rapid development of economic globalization, regional integration discussions and information technology, interest-related parties tend to be pluralistic and interest demand tends to be diversified, hence multiple stakeholders need to reach a consensus. Therefore, deliberative democracy itself is also drawing more and more attention of Eastern and Western scholars. The academic research of deliberative democracy mainly focuses on the researches of the basic theory, the connotations of deliberative democracy theory, the orientation of the deliberative democracy theory in the whole democratic system, and the relationship between deliberative democracy theory and freedom, equality, fairness, justice etc. With the more prominent environmental problems in China, environmental protection has aroused increasing concerns. Environmental protection involves the conflicts of multi subject and multi interests, so a mechanism is needed to reach a consensus on the environmental interests, and the best way to establish this mechanism should be deliberative democracy. Deliberative democracy is the inevitable choice to break through the bottleneck of environmental legal system. This paper holds that the environment coordinating democracy should not be a single principle, rule or system, but a dynamic operational mechanism throughout the whole process of environmental legislation, law enforcement and legal supervision can realize its own functions of adjustment and repair. Through the operation of the democratic mechanism of environmental negotiation, consultations or negotiations are needed for the vital interests related to environmental problems, and a consensus will be reached for such major issues as the allocation of power, the contents of rights and obligations and responsibility assumption. Based on a mechanism of equal consultation, this consensus will have a good effect. The frequent occurrence of environmental group events indicates the legitimacy crisis of environmental law, the lack of multi subject, multi equal consultations leading to the predicament of the administrative guidance of environmental protection, the role of companies not being fully reflected in environmental protection, environmental protection lacking public participation. Environmental protection needs a model of public governance, but governments, companies and civil society groups are not the only subjects in public governance. In order to achieve good governance in the public domain, a network governance mechanism with benign interactions between the three should and must be established, and the best way to establish this mechanism should be deliberative democracy. The Application of environmental deliberative democracy to China's environment law must confirm the ″law making″ function of environmental deliberative democracy, and the democratic consultation mechanism provides the basis of environmental legitimacy for the concept, principle and system innovation of environmental law; so a mechanism must be established to guarantee that all represent the interests of consultations in order to equal main body status, clarify the government, companies, civil society groups in the environmental protection responsibility scope, improve the accountability system and establish judicial linkage mechanism, guaranteeing the implementation of environmental laws and regulations. In this paper, the deliberative democracy is introduced into the field of environmental protection, so the application of the democratic mechanism of environmental negotiation to China's environmental rule of law, is not only a breakthrough of deliberative democracy, but also a breakthrough in China's environmental legal system. This paper attempts to construct an approach of the democratic mechanism of environmental negotiation in the environmental law, not yet mature. More concerns are expected from the circle of environmental law.