The procedural basis and institutional shaping of environmental restoration orders
2023-08-24
As a new mechanism for practical exploration that precedes theoretical research, there is still some room for exploration in environmental remediation, and its procedural basis and institutional shaping are the first practical issues that should be explored. 1、 The procedural basis for environmental restoration orders is a judicial document issued by the people's court to environmental infringers to demand their fulfillment of environmental restoration obligations. The current procedural basis for environmental remediation orders is still lacking, and there is a vague state of which procedures should be positioned, based on which procedures should be made and implemented, and by which procedural standards, which has caused some problems. 1. Does not comply with the normative characteristics of judicial activities. The lack of clear procedural basis has led to a certain degree of arbitrariness in practical application of environmental remediation orders. Some environmental remediation orders are issued before the judgment, while others are issued simultaneously with the judgment; Some are activated upon the application of the parties involved, while others are activated by the court ex officio; Some operate in the mode of "ruling+repair order", some operate in the mode of "ruling+repair order", and some only issue repair orders without issuing other documents. 2. Reduce the governance effectiveness of restorative justice. The lack of procedural basis leads to the suspicion of insufficient evidence for the source of power of environmental restoration orders, which in turn leads to a lack of strict regulatory effectiveness and procedural guarantees in terms of physical content, degree of restoration, restoration methods, and restoration time, and undermines the functional value of restorative justice. 3. It is difficult to accurately embed the environmental justice system. As far as the environmental restoration order itself is concerned, there is a lack of systematic procedural support and normative requirements on how to determine the restoration content, restoration method, restoration time, and how to determine the restoration effect, and the remedies provided by the parties involved are also unclear. In terms of the relationship between environmental restoration orders and other litigation systems, the lack of procedural basis means that their functional positioning is not clear enough, resulting in the inability to properly handle the connection between them and procedures such as filing, trial, and execution in practice. 2、 Based on the comprehensive consideration of the current civil litigation system, the author believes that the pre execution system is more suitable to serve as the basis for environmental restoration order procedures. 1. Implement the concept of restorative justice. The integrity of the ecosystem and the inherent mechanism of environmental succession make it difficult for traditional remedies for damages after litigation to cope with the complexity, urgency, timeliness, irreversibility, etc. of environmental restoration, thus requiring the participation of the environmental restoration order system. Pre execution is a temporary relief procedure carried out by the court after accepting a case and before the final judgment is made. It has the procedural positioning and institutional function of repairing damaged interests in advance. Using it as a procedural basis can demonstrate the value advantages of restorative justice. In practice, there are also many practices of repairing damaged environments through pre execution procedures. 2. Affinity between systems. The institutional value of advance execution and environmental restoration orders lies in preventing certain negative outcomes of reality and urgency, making it easy for institutional connections; The fundamental law on which the two depend
Edit:Ying Ying Responsible editor:Shen Chen
Source:rmfyb.chinacourt.org
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