区域限批制度的行政法分析

发布时间：2018-03-29 01:39

本文选题：环境执法　切入点：区域限批　出处：《中国社会科学院研究生院》2011年硕士论文

【摘要】：区域限批是环保部在第三次“环评风暴”中最引人注目的一招。但从其最初的闪亮登场到现在的归于平静,区域限批经历了一个怎样的过程?其理论研究和实践总结是怎样的?鉴于现在学界的研究尚未系统、全面,且从行政法角度的研究少之又少,因此,本文收集了与其相关的大部分材料,欲通过一定的分析,对其法律性质做比较深入的研究,以供后来人参考。本文由四章内容组成,重点在于对区域限批制度的概念和特征进行界定,以及对其法律性质的规范分析。首先,本文先对研究背景、相关文献综述做了梳理,通过介绍我国现行环保监管机构设置、监管权配置和监管权运行情况及其存在的问题,对区域限批的制度背景予以明确,并结合区域限批在实践中的效果得出,环保执法之所以屡起风暴却收效甚微,深层次的原因还是体制不顺:地方政府与污染企业利益纠葛不清、环保部门人事财受制地方政府、从而导致环保部门对污染企业奈何不得,在这样一个微妙的关系圈里,执法手段无疑被弱化了。接着,本文又论述了区域限批的适用领域、发生条件及相应结果,指出其具有连坐性、惩罚性、高行政性、兼重事前与事后、兼具命令与指导的特征。然后,本文对区域限批的法律性质展开分析。先通过总结学界的几种观点,得出区域限批既非具体行政行为中的行政处罚和行政强制,又不是法律行为之外的纯行政手段,而是行政机关依据相关法律规定发布规范性文件的抽象行政行为,不具有可诉性;接着,本文又讨论了区域限批目前在合法性和合理性方面面临的问题,得出尽管《水污染防治法》已将区域限批以法律的形式规定下来,但仍未对其相应期限、程序、方式予以明确,也未规定具体的救济措施,终究只是一种行政手段在法律范围内的最大化应用,容易对相关第三人的合法权益造成损害,不符合行政法的控权理念和比例原则,因此,并不具有长效性;最后,本文进一步讨论了区域限批与其他相关制度的关系,主要是与“地方政府负总责”的关系,指出这二者都是产生于市场经济不完备、法治政府不健全、行政体制亟需改革的背景下,并随着市场经济的逐步完善、法治政府的逐步健全、行政体制改革的逐步推进,最终都将走出历史的舞台。
[Abstract]:Regional approval restriction is the most striking move of the Ministry of Environmental Protection in the third "Environmental impact Assessment Storm." but from its initial shining debut to the present calm, what process has the regional approval restriction experienced? What is the summary of its theoretical research and practice? In view of the fact that the current academic research has not been systematic and comprehensive, and the research from the angle of administrative law is very few, this paper has collected most of the materials related to it, and wants to do more in-depth research on its legal nature through some analysis. This paper is composed of four chapters, focusing on the definition of the concept and characteristics of the regional limited approval system and the normative analysis of its legal nature. First of all, this paper reviews the background of the research, related literature review, through the introduction of China's current environmental regulatory institutions, regulatory power allocation and regulatory power operation and the existing problems, to clear the system background of regional licensing. Combined with the effect of regional restriction on approval in practice, it can be concluded that the reason why environmental protection law enforcement has caused many storms has little effect, the deep-seated reason is that the system is still not good: the local government is not clear about the interests of the polluting enterprises, the personnel and property of the environmental protection department are restricted by the local government. As a result, environmental protection departments are unwilling to do anything to pollute enterprises. In such a delicate circle of relationships, enforcement measures are undoubtedly weakened. Then, this paper also discusses the applicable areas, conditions of occurrence and corresponding results of regional authorization restrictions. It is pointed out that it has the characteristics of continuous sitting, punitive, high administrative, and emphasis on both ex ante and hindsight, as well as command and guidance. Then, this paper analyzes the legal nature of regional restricted approval. Firstly, by summing up several viewpoints of academic circles, the author concludes that regional restricted approval is neither administrative punishment nor administrative compulsion in specific administrative acts, nor is it a pure administrative means outside of legal acts. It is the abstract administrative act that the administrative organs issue normative documents according to the relevant laws, which is not actionable. Then, this paper discusses the problems of the legitimacy and reasonableness of the regional restricted approval. It is concluded that although the Water pollution Prevention and Control Law has stipulated the regional restrictions in the form of laws, it has not yet defined the corresponding time limit, procedures, methods, and specific relief measures. After all, it is only the maximization of the application of an administrative means within the scope of the law. It is easy to damage the legitimate rights and interests of the third party concerned, and does not conform to the principle of control and proportion of administrative law, therefore, it does not have a long-term effect. This paper further discusses the relationship between regional limited approval and other related systems, mainly the relationship with "the local government has the overall responsibility", and points out that both of them are due to the imperfect market economy and the imperfect government ruled by law. Under the background of the urgent need for reform of the administrative system, and with the gradual improvement of the market economy, the gradual perfection of the government ruled by law and the gradual advancement of the reform of the administrative system, all of them will finally step out of the historical stage.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.1;D922.68

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