政府环境应急责任研究——地震等特大自然灾害背景下的环境法思考
发布时间：2018-07-17 01:55
【摘要】： 地震等特大自然灾害能够诱发原生和次生环境危害。从法律的视角进行考察,自然灾害作为法律事实又可能引起一系列的环境法律关系的产生、变更和消灭。突出的表现形式是使社会状态由常规状态变为紧急状态,为政府动用紧急行政权创造条件,从而激活政府环境应急责任。 与常态中的政府环境管理责任相比政府环境应急责任具有权力集中与扩张、消极除碍性、不可转让性和临时性四大特征;其基本内容是对原生和次生环境灾害的预防和治理。地震等特大自然灾害对政府履行环境应急责任的影响主要体现在三个方面:履行环境应急责任人力资源的伤亡、物质保障的减损和紧急状态下环境保护正当性的弱化。 我国政府环境应急责任的法律体系已经初步搭建。但近些年特大自然灾害的爆发,对以常态社会偶发性的环境污染事故为“假想应急对象”的政府环境应急制度提出了新的挑战。以特大自然灾害为背景对我国的环境应急机制进行分析,可以发现我国政府环境应急责任制度还存在如下不足:常态环境管理权向环境应急权的过渡性规定不完善、应急管理体制尚不健全、重应急处置轻其他环节的应急责任、应急行政程序规定不明确、信息公开不够迅速有效、应急责任追究机制不健全。 我国政府环境应急责任制度之所以存在以上不足,既有立法背景、立法理念上的原因也有立法技术上的原因。当前,我国应从宏观和微观双重视角对政府环境应急责任进行完善。在宏观上,要将政府动用紧急行政权、采取环境应急措施的目标限制在消除环境安全威胁、维护人民生命健康和财产安全、维护国家安全和社会稳定上;并将应急性、目的上的公益性、手段上的比例与效率、明确职责与能力建设相结合、风险预防与危机处理相结合确定为环境应急责任制度的基本原则。在微观制度的完善上,要在完善政府环境应急责任立法;健全政府环境应急管理体制、完善分期政府环境应急责任机制、建立灾害级别程序变通制度、完善政府信息公开制度、构建完善的政府环境应急责任追究机制上下功夫。
[Abstract]:Major natural disasters such as earthquakes can induce primary and secondary environmental hazards. From the perspective of law, natural disasters as a legal fact may cause a series of environmental legal relations, change and eliminate. The prominent form is to change the social state from a conventional state to a state of emergency, to create conditions for the government to use the emergency administrative power, and thus to activate the government's environmental emergency responsibility. Compared with the government environmental management responsibility in the normal state, the government environmental emergency responsibility has four characteristics: centralization and expansion of power, negative excluding hindrance, non-transferability and temporary, and its basic content is the prevention and management of primary and secondary environmental disasters. The impact of earthquake and other extraordinary natural disasters on the government's environmental emergency responsibility is mainly reflected in three aspects: the casualties of human resources to fulfill the environmental emergency responsibility, the impairment of material protection and the weakening of the legitimacy of environmental protection under the state of emergency. The legal system of our government's environmental emergency responsibility has been preliminarily set up. However, the outbreak of natural disasters in recent years has posed a new challenge to the government's environmental emergency system, in which the accidental environmental pollution accidents in normal society are regarded as "imaginary emergency objects". Based on the analysis of the environmental emergency mechanism in China against the background of natural disasters, it can be found that the government's environmental emergency responsibility system still has the following shortcomings: the transitional provisions of the right of normal environmental management to the right of environmental emergency are not perfect. The emergency management system is not perfect, the emergency responsibility is not emphasized, the emergency administrative procedure is not clear, the information disclosure is not quick and effective, and the mechanism of investigating the emergency responsibility is not perfect. The reason why the government's environmental emergency responsibility system has the above deficiencies is the legislative background, the legislative concept and the legislative technical reasons. At present, our country should perfect the government's environmental emergency responsibility from both macro and micro perspectives. At the macro level, it is necessary to limit the government's use of emergency administrative power to the objective of taking environmental emergency measures to eliminate environmental security threats, safeguard people's life, health and property, and safeguard national security and social stability. The basic principles of environmental emergency responsibility system are the public welfare, the proportion and efficiency of means, the combination of responsibility and capacity building, and the combination of risk prevention and crisis management. In order to perfect the micro system, we should perfect the legislation of government environmental emergency responsibility, perfect the government environmental emergency management system, perfect the mechanism of government environmental emergency responsibility by stages, establish a flexible system of disaster level procedures, and perfect the system of government information disclosure. Construction of a sound government environmental emergency responsibility investigation mechanism to work hard.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D912.6
本文编号：2128514
[Abstract]:Major natural disasters such as earthquakes can induce primary and secondary environmental hazards. From the perspective of law, natural disasters as a legal fact may cause a series of environmental legal relations, change and eliminate. The prominent form is to change the social state from a conventional state to a state of emergency, to create conditions for the government to use the emergency administrative power, and thus to activate the government's environmental emergency responsibility. Compared with the government environmental management responsibility in the normal state, the government environmental emergency responsibility has four characteristics: centralization and expansion of power, negative excluding hindrance, non-transferability and temporary, and its basic content is the prevention and management of primary and secondary environmental disasters. The impact of earthquake and other extraordinary natural disasters on the government's environmental emergency responsibility is mainly reflected in three aspects: the casualties of human resources to fulfill the environmental emergency responsibility, the impairment of material protection and the weakening of the legitimacy of environmental protection under the state of emergency. The legal system of our government's environmental emergency responsibility has been preliminarily set up. However, the outbreak of natural disasters in recent years has posed a new challenge to the government's environmental emergency system, in which the accidental environmental pollution accidents in normal society are regarded as "imaginary emergency objects". Based on the analysis of the environmental emergency mechanism in China against the background of natural disasters, it can be found that the government's environmental emergency responsibility system still has the following shortcomings: the transitional provisions of the right of normal environmental management to the right of environmental emergency are not perfect. The emergency management system is not perfect, the emergency responsibility is not emphasized, the emergency administrative procedure is not clear, the information disclosure is not quick and effective, and the mechanism of investigating the emergency responsibility is not perfect. The reason why the government's environmental emergency responsibility system has the above deficiencies is the legislative background, the legislative concept and the legislative technical reasons. At present, our country should perfect the government's environmental emergency responsibility from both macro and micro perspectives. At the macro level, it is necessary to limit the government's use of emergency administrative power to the objective of taking environmental emergency measures to eliminate environmental security threats, safeguard people's life, health and property, and safeguard national security and social stability. The basic principles of environmental emergency responsibility system are the public welfare, the proportion and efficiency of means, the combination of responsibility and capacity building, and the combination of risk prevention and crisis management. In order to perfect the micro system, we should perfect the legislation of government environmental emergency responsibility, perfect the government environmental emergency management system, perfect the mechanism of government environmental emergency responsibility by stages, establish a flexible system of disaster level procedures, and perfect the system of government information disclosure. Construction of a sound government environmental emergency responsibility investigation mechanism to work hard.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D912.6
【引证文献】
相关会议论文 前1条
1 黄金菊;;试论我国政府环境应急责任法律制度的完善[A];生态安全与环境风险防范法治建设——2011年全国环境资源法学研讨会（年会）论文集（第一册）[C];2011年
相关硕士学位论文 前1条
1 陈皓;环境突发事件应急管理法律机制研究[D];华东政法大学;2012年
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