Editor's note:

In order to fully implement the explicit requirement of "timely promoting the compilation of legal codes in the legislative field when conditions are ripe" put forward at the Central Conference on comprehensively governing the rule of Law, promote the improvement of the modern environmental governance system and serve the construction of China's ecological civilization, The 2021 Annual meeting and symposium of The Professional Committee on Multiple Settlement Mechanism of Environmental Disputes of China Law Society, Environmental Resources Law Society, will be held in Tianjin in November 2021. More than 100 experts and scholars from the Supreme People's Court, China Law Society, CBCGDF and other units jointly discussed the "Ecological environment Code" and the diversified settlement mechanism for environmental disputes both online and offline. Ma Yong, member of the special committee and deputy secretary general of CBCGDF, made a speech titled "The filing of environmental public interest Litigation", explaining the phenomenon observation and causes of the problem, and put forward five suggestions for solving the problem.

Written by Assie/ reviewed by MY /edited by Angel/ Translated by Lucy

The diversified settlement mechanism of environmental disputes should be included in the ecological environmental code

--Review of the viewpoints of the 2021 Annual Meeting of The Rule of Law Branch of China Ecological Civilization Research and Promotion Association and the 2021 Annual Meeting of the Professional Committee on Diversified Settlement Mechanism of Environmental Disputes of the Environmental Resources Law Society of China Law Society

Sun Youhai,  Meng Chunxue

Hosted by The Rule of Law Branch of China Ecological Civilization Research and Promotion Association and Environmental and Resources Law Research Institute of China Law Society on November 20, 2021, The 2021 Annual Meeting of Rule of Law Branch of China Ecological Civilization Research and Promotion Association and the 2021 Annual Meeting of Diversified Environmental Dispute Resolution Mechanism Professional Committee of Environmental Resources Law Research Institute of China Law Society were held in Tianjin University. From the Supreme People's Court, China Law Society, China council for the promotion of research and ecological civilization, tianjin free trade zone of the people's court, China biodiversity conservation and green development foundation, friends of nature, the arbitration commission of the north sea, wuhan university, tianjin university, China university of political science and law, shandong university, chongqing university, zhejiang university, southwest university of political science and law, xiangtan university, kunming university of science and technology , Hainan University, Jiangxi University of Science and Technology, Beijing Forestry University, Shanghai University of Political Science and Law, Southwest Petroleum University, Guangdong University of Petrochemical Technology, Central South University of Forestry and Technology, Qufu Normal University, Yan 'an University, Zhejiang Normal University, And the editorial department of "Chinese Ecological Civilization", the editorial department of "Journal of Nanjing University of Technology (Social Science Edition)", guohao Law Firm (Tianjin), Beijing Zhonglun (Wuhan) law firm, Beijing Huanming law firm, Guangdong Lvjian law firm and other units more than 100 experts and scholars attended the meeting.

Theoretical and practical circles have reached a "general consensus" on the compilation of "ecological and environmental code", and the compilation is also moving forward. Environmental disputes are difficult to be completely resolved only by judicial relief system for environmental disputes because of their complex relationship and multi-cause characteristics. It has gradually become the focus of theoretical and practical research to establish a diversified settlement mechanism for environmental disputes and bring it into the "ecological environmental code". The theme of this year's annual conference is "Ecological environmental Code" and diversified environmental Dispute resolution mechanism ".

At the opening ceremony of the annual meeting, Professor Sun Youhai, president of the Rule of Law Branch of China Ecological Civilization Research and Promotion Association and chairman of the Professional Committee of diversified Environmental Dispute Resolution Mechanism of the Environmental Resources Law Society of China Law Society, delivered a speech and delivered a work report for 2021. Sun Youhai pointed out that the annual meeting is an important academic seminar under the background of fully implementing the spirit of the sixth Plenary Session of the 19th CPC Central Committee and promoting China's ecological civilization and legal construction into the "fast track". He stressed that environmental disputes are highly technical, have serious consequences and have a long incubation period, and need to be properly resolved through multiple resolution mechanisms.

Lv Zhongmei, Vice President of China Law Society and President of Environmental and Resources Law Institute of China Law Society, Liu Zheng, Deputy Director of judicial Reform Office of the Supreme People's Court, Yang Mingsen, supervisor of China Ecological Civilization Research and Promotion Association and experts and scholars at the meeting delivered keynote speeches and keynote speeches on relevant topics respectively.

First, focus on the deepening and development of the compilation of "ecological environment code"

According to the 2021 legislative work plan of the NPC Standing Committee, we will study and start the compilation of administrative legislation codes where conditions are ripe, such as the environmental code, the education code and the basic administrative code. In order to promote the compilation of the environmental code, the Research Institute of Environmental Resources Law of China Law Society organized and led experts and scholars in the field of environmental law to do a lot of research work, and formed a series of research results.

At the keynote report stage of this annual meeting, Professor Lu Zhongmei, vice President of China Law Society and President of environmental and Resources Law Research Institute of China Law Society, pointed out that there are still many basic problems to be solved in the compilation process of the "Ecological and environmental Code". One is how to understand "ecological environment code". The essence of codification or re-codification is to realize the goal of modernization of the rule of law in the process of deconstruction or reconstruction. Codex is the cooperation of politicians and jurists and a gift of logic and scientific thinking. Second, how to compile the code of Ecological environment. The compilation of China's "Ecological environment Code" needs to learn from the compilation experience of China's "Civil Code", take the integration of Chinese traditional culture and the promotion of socialist core values as the compilation purpose, and promote the modernization of national governance system as the goal. The code of Ecological Environment should adopt appropriate codification, adhere to the systematic structure, and formulate the general Provisions, pollution control, natural ecological protection, green and low-carbon development and legal liability.

Lv Zhongmei emphasized that it is necessary to recognize the differences between the "Ecological Environment Code" and the codes in other fields, and make it clear that the "Ecological Environment Code" is a symbiotic law between man and nature. Sustained development is the main line of core value, highlighting comprehensive adjustment, using various means to adjust, and reflecting the overall legal order. Therefore, in the compiling concept of "Eco-environmental Code", it is suggested to set up "Eco-environmental Responsibility Code". One of the important goals is to build a diversified settlement mechanism for environmental disputes with Chinese characteristics. Here we need to focus on the following four aspects: first, the overall planning of criminal litigation, civil litigation and administrative litigation; second, the connection between litigation and non-litigation; third, the establishment of a mediation mechanism; fourth, actively mobilize the society power issue. Lv Zhongmei emphasized that there are still many theoretical issues that need to be studied in depth on how to establish this mechanism. Scholars are needed to provide support for politicians’ decision-making, to put forward reasonable plans for the legislative technology of the “Eco-Environmental Code” accepted by the legal community, and to contribute wisdom to the compilation of the “Eco-Environmental Code” by building a sound theoretical system of diversified resolution mechanisms for environmental disputes. and strength.

Professor Yu Wenxuan, Vice President of the Environmental Resource Law Research Association of the China Law Society, Vice Chairman of the Professional Committee of the Diversified Resolution Mechanism for Environmental Disputes, and Director of the Environmental Resource Law Institute of China University of Political Science and Law, gave a speech entitled "Biodiversity Protection in the Environmental Code". - Substantive Rules and Procedural Implementation" speech. Yu Wenxuan first clarified that biodiversity includes three levels of ecosystem diversity, species diversity and genetic diversity, and has dual attributes of ecological elements and natural resources. The focus of the compilation of the "Eco-Environmental Code" should include biodiversity Protect. He started from the three parts: general provisions, ecological protection, and legal responsibility, and demonstrated the presentation of biodiversity protection in the "Eco-environmental Code". One is the general rule. At the level of basic principles, the principle of risk prevention should be covered to meet the requirements of biodiversity conservation; at the level of basic systems, systems such as environmental impact assessment and licensing are applicable to biodiversity conservation. The second is ecological protection. The biodiversity protection planning system should be clarified, and the system design of ecosystem diversity protection should be carried out in combination with the legislation on protected areas, wetland protection, and prevention and control of alien species invasion. In terms of microbial protection, principle provisions can be made on the basis of current relevant legislation, and the acquisition of biological genetic resources should be clearly stipulated in the "Eco-environmental Code". The third is legal responsibility. It should be linked with the Biosafety Act and the Criminal Code Amendments, with special emphasis on preventive procedure rules.

Professor Wang Xiaogang from Tianjin University Law School delivered a speech titled "Research on the Liability of Ecological Environmental Damage in the "Environmental Code" and the "Civil Code". He advocated focusing on the study of the interpretation theory of the Civil Code: first, it is recommended to strictly interpret "violation of state regulations", and strictly interpret the "state regulations" in Articles 1234 and 1235 of the Civil Code as laws, administrative regulations and Eco-environmental standards. Second, it is recommended to introduce a "general duty of care" to achieve the purpose of including violations that are not covered by "violation of state regulations" into the scope of application of ecological environmental damage liability. Third, it is recommended to establish the threshold standard for ecological and environmental damage, and clarify that the conditions for filing an environmental civil public interest lawsuit include "the defendant's behavior has caused or may cause serious ecological and environmental consequences." Fourth, it is proposed to expand the interpretation of "repairable" in section 1234 to "repairable technically, economically and legally." Fifth, it is suggested to expand the interpretation of the "period of completion of restoration" in Article 1235 to include "period of completion of natural restoration". Wang Xiaogang also suggested that we should focus on the research on the legislative theory of the "Eco-environmental Code": first, it is recommended to set up a special chapter in the "Eco-environmental Code" to deal with the issue of liability for damage to the ecological environment; It is directly written into the public law liability clause for ecological environment restoration; thirdly, it is recommended to consider the connection between public law and private law liability in the special chapter of "Liability for Ecological Environmental Damage"; Fifth, it is suggested to stipulate the general principles of the duty of care in the Eco-Environmental Code.

Professor Yang Zhaoxia, Director of the Ecological Law Research Center of Beijing Forestry University, gave a speech entitled "Cold Thoughts on the Punitive Compensation System for Ecological Environment Infringement". Yang Zhaoxia pointed out that the punitive compensation system for ecological and environmental infringement stipulated in Article 1232 of the Civil Code is too principled, and whether and how it can be applied to the field of ecological and environmental infringement has become a major theoretical focus at present. The punitive damages system is stipulated in the law. First, based on the consideration of remedial justice (there are special damages that require special relief, such as mental damage), punitive damages are used as a useful supplement to private law liability (compensatory damages) to achieve full Relief; the second is to consider punitive damages as a useful supplement to public law responsibilities (administrative punishment and criminal punishment) based on the consideration of public morality (there are bad behaviors that should be blamed) in order to achieve effective sanctions. He argues that punitive damages should also be applied to cases of ecological and environmental infringement that cause serious consequences and are obviously intentional. However, the ecological environment damage compensation lawsuit brought by the government is essentially a judicial implementation mechanism for administrative orders ordering compensation for ecological environment damage, and punitive damages are not applicable. He suggested that in the specific design of the punitive damages system for ecological environment damage, in order to prevent unnecessary burdens on ecological environment infringers due to the abuse of punitive damages, it is necessary to set strict applicable rules for them: First, carry out public law enforcement. Limitation in the sense. For example, it can only be applied when there is no corresponding public law responsibility, or the specified public law responsibility threshold is too high, the responsibility is too light, and it is impossible or insufficient to effectively combat illegal acts. The second is to carry out restrictions in the sense of private law. For example, it requires subjective intentional and objective serious consequences in the constituent elements, and requires that the current compensation standard is insufficient to remedy the damage caused by the applicable conditions. The third is to set reasonable and clear compensation standards, not to arbitrarily expand the compensation range, and easy to operate. Fourth, punitive damages are not applicable to the ecological environment damage compensation liability insurance system and the ecological environment damage compensation fund system.

Song Fumin, a specially-appointed young associate professor at Qufu Normal University Law School, gave a speech titled "Evidence and Conception of "Environmental Public Interest Litigation" in "Environmental Code" and "Environmental Procedures". She proposed that the "Eco-Environmental Code" should be a code composed of several sub-codes set up according to the needs of environmental protection affairs. In addition to some specific environmental affairs directly acting on the objects of control or protection, it should also include various "environmental means". Law”, part of which is the “Environmental Dispute Resolution Procedure”. "Environmental procedural norms" are as important as "substantive norms" in the law. They are both part of the environmental law system and "the content of a complete code". The "Eco-Environmental Code" cannot only stipulate "substantive norms", but also "procedural norms" should be included in it, and the special editor should set up "environmental procedures". She emphasized that environmental public interest litigation is a relatively special type of litigation, and it should occupy a certain position in the environmental dispute resolution mechanism. It is necessary and feasible to include it in the "Eco-environmental Code", and then formulate unified substantive and procedural rules. of.

Professor Qin Tianbao, Vice President and Secretary General of Environmental Resources Law Research Association of China Law Society, Vice Chairman of the Professional Committee of Diversified Resolution Mechanisms for Environmental Disputes, and Director of the Environmental Law Research Institute of Wuhan University, the Key Research Base of Humanities and Social Sciences of the Ministry of Education, was in the discussion session. It is pointed out that three problems need to be solved in the compilation process and judicial practice of the "Eco-environmental Code": First, prevention should be emphasized in legislation. Since the cost of prevention is far less than the cost of governance, the nodes of multiple resolution of environmental disputes should be placed at the front end. Second, it is necessary to conduct in-depth research on whether confidential arbitration can allow for intervention in a way similar to environmental public interest litigation. The third is to consider whether the environmental protection administrative department can negotiate compensation with the polluter.

Professor Wu Yong, member of the Professional Committee of the Diversified Resolution Mechanism for Environmental Disputes and Deputy Dean of the Law School of Xiangtan University, pointed out in the discussion session that it is very important to establish a diversified resolution mechanism for environmental disputes. However, compared with litigation, the current discussion of non-litigation and the construction of rules still have great deficiencies. The non-litigation approach should be adapted to environmental disputes with the "three modernizations" innovations, that is, specialization, rule of law, and prevention.

2. Focus on further improving and perfecting the diversified resolution mechanism for environmental disputes

A sound and comprehensive diversified resolution mechanism can actively and effectively resolve environmental disputes, and is an important means to realize the modernization of national governance, social governance and environmental governance. Experts attending this annual meeting made presentations on the role of the people's courts in the diversified resolution mechanism for environmental disputes, the significance of the diversified resolution mechanism for environmental disputes, and the participation of multiple subjects such as arbitration, notarization, social organizations, and appraisal agencies. Important reports and speeches.

1. The People's Courts Play an Important Role in the Diversified Resolution Mechanism for Environmental Disputes

During the keynote report stage, Liu Zheng, deputy director of the Department of Justice Reform Office of the Supreme People's Court, made an important report on how the court promotes the reform of the diversified dispute resolution mechanism. Liu Zheng first introduced the achievements made by the people's courts in promoting the reform of the diversified resolution mechanism for environmental disputes in recent years, and pointed out the four problems faced by the current construction of the diversified resolution mechanism for social conflicts and disputes in my country: first, the concept of social governance needs to be further transformed; The general pattern of social conflict and dispute resolution still needs to be further constructed; second, the guarantee mechanism for dispute resolution needs to be further strengthened. The above should be planned and improved; the third is that the multi-dispute resolution synergy needs to be further formed, the rights and responsibilities of different dispute resolution subjects are not clear enough, the division and connection are not smooth enough, and the professional procedures are slightly insufficient; The functions of arbitration, notarization and judicial functions are still not well connected. Liu Zheng suggested that, on the one hand, we should emphasize the governance of the source of litigation, promote the resolution of the source of conflicts and disputes, adhere to and develop the "Fengqiao Experience" in the new era, strengthen the prevention of the source of conflicts and disputes, front-end resolution, and control at the gate, and improve the preventive legal system; On the one hand, the people's courts should take the initiative to act, change their concepts, give full play to the advantages of "one-stop" dispute resolution services, actively promote the establishment of a multi-connected mediation system, improve the guarantee level of diversified dispute resolution, improve the litigation fee system, strengthen the application of information technology, and achieve dispute resolution in a smart and efficient manner.

Qu Jian, the chief judge of the Sino-Singapore Eco-City Environmental Tribunal of the People's Court of Tianjin Free Trade Zone, delivered a speech titled "Born to be beautiful: The Current Situation of the Sino-Singapore Eco-City Environmental Tribunal and the Exploration of Diversified Dispute Resolution in Environmental Trials". Qu Jian pointed out that since the establishment of the Eco-City Environment and Assets Court in October 2020, on the basis of exploring the establishment of a multi-dispute mediation mechanism, a multi-dispute resolution model with the characteristics of the Eco-City has been formed: First, the people's mediation is "in court". Establish a pre-litigation mediation system, adopt an online + offline mediation model, and resolve disputes before litigation. Second, establish a litigation mediation docking mechanism. Build a pattern of "party and government leadership, comprehensive governance coordination, and multi-level co-governance", coordinate with relevant units, intervene in advance, and guide the parties rationally. Establish an information sharing mechanism for dishonest persons subject to enforcement with the Eco-city Management Committee. Third, improve the efficiency of judicial services. Carry out the reform of "division and trial", establish and improve the mechanism of "diversion + mediation + speedy judgment + speedy trial", and set up "judge mediation room and community micro-court". Fourth, establish a "night lecture hall" to carry out law popularization activities. Establish a "Law at Night Lecture Hall" in Yihe Community to provide legal consultation and publicity services.

Ma Yong, Deputy Secretary-General of China Biodiversity Conservation and Green Development Foundation, delivered a speech titled "Problems of Filing Environmental Public Interest Litigation". Ma Yong believes that due to the established and effective connection mechanism between the procuratorial organ and the court, the filing of procuratorial public interest litigation is basically smooth, but social organizations have faced many problems in filing environmental public interest litigation. From the observation of the phenomenon, before 2015, the problem of not filing public interest lawsuits was common; from 2015 to 2016, the issue of plaintiff qualifications for social organizations plagued filing; It has become difficult to file a case. The reasons for the above problems are: first, the development stage of public interest litigation has changed from innovation to normal business, and the judiciary's motivation and enthusiasm for handling environmental public interest litigation has declined; second, environmental justice is unbalanced and disconnected. The Supreme People's Court has an advanced and pragmatic concept of environmental judiciary. Generally, the higher courts are also very active. However, the understanding of individual intermediate courts or grassroots courts with designated jurisdiction is uneven. Some court judges have limited capacity and are intimidated by highly specialized environmental public interest litigation cases. In some regions, environmental public interest lawsuits have been filed due to local interests. Ma Yong put forward five suggestions: First, strictly implement the "Working Specifications of the Supreme People's Court on Trial of Environmental Public Interest Litigation Cases (Trial)", and generally apply the case filing registration system; second, carry out special rectification and include public interest litigation filing in performance appraisal; The third is to strengthen the exchange and training of principals at the hospital level; the fourth is to encourage dialogue and communication to establish a trust mechanism for social organizations; the fifth is to implement the green principles of the Civil Code and encourage further innovation in public interest litigation.

(2) The Significance of Improving the Diversified Resolution Mechanism for Environmental Disputes

Yang Mingsen, chairman of the board of supervisors of the China Ecological Civilization Research and Promotion Association, elaborated on the pilot work and existing problems of a diversified resolution mechanism for environmental disputes. From the perspective of traditional Chinese culture, he expounded in detail the relationship between the establishment of a diversified resolution mechanism for environmental disputes and the relationship between emotion, reason, and law, emphasizing that the direct purpose of the non-litigation mechanism is to resolve disputes, and the essential purpose is to pursue civilized and harmonious interpersonal relationships. He proposed that attention should be paid to resolving environmental disputes through non-litigation methods, to achieve a balance between reason and law, to better protect the environmental rights and interests of the parties, and to promote the construction of a beautiful China.

Professor Sun Youhai, Chairman of the Legal Branch of the China Ecological Civilization Research and Promotion Association, Chairman of the Special Committee on the Diversified Resolution Mechanism for Environmental Disputes, and Dean of the Law School of Tianjin University Legal Tools" presentation. Sun Youhai pointed out that in today's world, the phenomenon of a sharp increase in litigation cases is relatively common. Facing the increasingly heavy litigation cases, the traditional trial mechanism is beginning to be incapacitated; the high cost of litigation and the delay of trial execution have become a worldwide problem, which constitutes an obstacle to the people's expectation of justice and the incompatibility of the judiciary, which has caused global problems. A wide-ranging judicial reform movement. When conflicts and disputes between stakeholders are very intense and complex, multiple dispute resolution mechanisms are needed. In the process of realizing the good governance of environmental protection in my country, it is very necessary and urgent to further improve and perfect the multi-dimensional settlement mechanism for environmental disputes. Sun Youhai said that the "Decision of the Central Committee of the Communist Party of China on Several Major Issues in Comprehensively Promoting the Governance of the Country by Law" adopted by the Fourth Plenary Session of the Eighteenth Central Committee of the Communist Party of China clearly pointed out that the law is the most important tool for governing the country, and good law is the premise of good governance. It is necessary to improve the mechanism for the prevention and resolution of social conflicts and disputes, and improve the multiple dispute resolution mechanisms that organically connect and coordinate with each other, such as mediation, arbitration, administrative adjudication, administrative reconsideration, and litigation. The "Resolution of the Central Committee of the Communist Party of China on Major Achievements and Historical Experiences of the Party's Centennial Struggle" adopted by the Sixth Plenary Session of the 19th Central Committee of the Communist Party of China pointed out that it is necessary to adhere to and develop the "Fengqiao Experience" in the new era, adhere to systematic governance, governance according to law, comprehensive governance, Source governance, improve the petition system, improve the comprehensive mechanism for multiple prevention, mediation and resolution of social conflicts and disputes, and strengthen the comprehensive management of social security. The important stipulations in the above-mentioned documents of the CPC Central Committee on improving and improving the multiple resolution mechanism for social conflicts and disputes are extremely important historical experience of the Communist Party of China in managing the country and society since the founding of the party for a hundred years, especially since the founding of the People's Republic of China. Environmental disputes are an integral part of the entire social disputes, and are characterized by strong technicality, serious damage consequences, and long damage incubation periods. They cannot rely solely on the judicial handling of the courts, but also need to be properly resolved by using diversified resolution mechanisms to achieve environmental protection. good governance. The important decisions and resolutions of the CPC Central Committee have strengthened our determination to conduct in-depth research and promote the development of a diversified resolution mechanism for environmental disputes, and have pointed out the direction for our country to improve the diversified resolution mechanism for environmental disputes and achieve good governance of environmental protection in the future. Sun Youhai believes that good governance in the field of environmental protection means that social stakeholders related to environmental protection pursue and realize the cooperative governance of environmental protection affairs between the government and citizens, including the use of mediation, reconciliation and other methods to handle relevant conflicts and disputes after they occur. Improving the diversified resolution mechanism for social disputes is an important policy and legal tool to achieve good governance in the whole society. In the field of environmental protection, a sound and diversified resolution mechanism for environmental disputes is an important policy and legal tool to promote environmental protection and achieve good governance. Sun Youhai emphasized that my country's practice of resolving conflicts and disputes in the field of environmental protection over the years has fully proved that adhering to and attaching importance to the use of a diversified resolution mechanism for environmental disputes will definitely help to correctly, efficiently and comprehensively handle environmental disputes, achieve good governance of environmental protection, and ensure social harmony. stability and play a very positive role.

Professor Zhou Xunfang from the Institute of Forestry Law of Central South University of Forestry and Technology pointed out in his speech entitled "Multiple Resolution Mechanisms for Natural Resource Ownership Disputes in the Context of National Land Spatial Planning and "One Map"". Under the background, disputes over the ownership of natural resources have presented new features: First, the legal relationship was originally in a stable state, but due to the exercise of public powers such as land planning rights, administrative approval rights, and administrative supervision rights, the rights holders were unable to exercise their rights or even suffered losses. , thus making the legal relationship in a state of instability. Second, changes in technical specifications such as land survey and land classification lead to changes in statutory land types, thus causing various disputes. The "Land Management Law" divides land into three types: construction land, agricultural land and unused land, which is not connected with the new spatial classification, resulting in unclear spatial attribution of "unused land" and diverse land types in ecological space. The two maps, the old and the new, have inconsistent definitions of land types, leading to new disputes. The "Land Management Law Implementation Regulations" expanded and explained the concept of "agricultural land" in the higher-level law and introduced the concept of "garden land", resulting in confusion in the cognition of economic forest land and garden land, and the increasing complexity of supervision subjects, supervision methods and dispute mediation. Third, there are logical contradictions in the institutional design of ecological protection and restoration in the direction of land use in the Land Administration Law and the Forest Law. Various ecological protection and restoration projects have changed the use of cultivated land, resulting in a conflict between ecological protection and restoration and the red line of cultivated land protection. Contradictions become explicit and new disputes arise.

(3) Multi-subject participation: a perfect path for a diversified resolution mechanism for environmental disputes

Professor Che Chengjun from Tianjin University Law School delivered a speech titled "Basic Elements of Litigation and Non-Connectivity - The Value of Notarization in the Construction of a Diversified Resolution Mechanism for Environmental Disputes". Che Chengjun pointed out that there are advantages in all elements of non-litigation dispute resolution, but there are also drawbacks, especially the disconnection from judicial litigation, resulting in poor operation of the mechanism within the system. The notary system is the basic element to make up for this deficiency. This is mainly reflected in three aspects: first, notarization is an important preventive judicial system, with the advantages of third-party neutrality, strong professionalism, and international use; second, notarization helps each element to form functions, procedures, and institutional functions that are compatible, complementary, and divided. The pattern of layer-by-layer progression, seamless connection, and collaborative linkage, especially participation in judicial assistance, and embedded realization of litigation and non-connection, can make judicial resources be used carefully, make various elements operate within the legal framework, and help legal resources and social resources. Optimize integration; the third is "'Notarization + Public Welfare + Public Credibility = Fair 'PK 'Public Harm'", integrated to combat environmental crises, and effectively clarify the government, society, enterprises, individuals, etc. Stakeholder responsibility, promote the consideration of "feeling, reason and law", eliminate the conflict between public rights and private rights, and realize joint construction, joint governance and sharing.

Zhong Hong, director of the Beihai Arbitration Commission, delivered a speech entitled "Discussion on Arbitration to Settle Disputes over Compensation for Environmental Damage in the New Era". Zhong Hong summed up the unique value of arbitration: First, arbitration is more efficient in resolving disputes over environmental damage compensation. On the one hand, the Arbitration Law adopts principled and broad provisions on evidentiary matters, and the arbitral tribunal can flexibly organize both parties to present evidence and cross-examination in accordance with the principled evidential rules, so as to advance the arbitration procedure fairly and efficiently; The final decision system enables both parties to determine the compensation plan for environmental damage as soon as possible and quickly enter the enforcement procedure. Second, arbitration is more professional in resolving disputes over compensation for environmental damage. Disputes over compensation for environmental damage involve various aspects such as damage assessment, restoration plan design, and technical feasibility analysis. Dispute resolution needs to be based on corresponding environmental professional standards, and expert case handling is a distinctive feature of arbitration. Third, arbitration to resolve disputes over compensation for environmental damage is in line with the parties' demands for substantive justice. Enterprises often hope to resolve disputes with the injured party as soon as possible under the condition of confidentiality, and the injured party is more concerned about whether their rights and interests can be restored in a short time, and whether the environmental damage can be stopped in time. Compared with procedural justice, many parties look forward to substantive justice, and arbitration can just meet the common demands of both parties.

Lawyer Cao Huijie, managing partner of Grandall Lawyers (Tianjin), delivered a speech titled "Practice and Thinking of Lawyers' Participation in Diversified Resolution Mechanisms for Environmental Disputes". Based on the work of Guiyang Guohao Ecological Environmental Protection People's Mediation Committee, Cao Huijie summed up the problems that lawyers should pay attention to when participating in environmental multi-dispute resolution work: First, accurate positioning. Eco-environmental damage consultation and pre-litigation mediation are both administrative and non-governmental. Therefore, this work should be positioned as an evaluative non-litigation procedure. The method of "judicial supervision" currently implemented in some provinces is worth learning from, and its role should be played appropriately. The second is to build a reasonable structure. Senior professional lawyers can serve as mediators, and college teachers, environmental protection technical experts, and senior environmental protection personnel can be hired as consultants to ensure the ability and quality of comprehensive problem-solving. The third is the degree of information disclosure. In order to improve the success rate of negotiation, the government may consider controlling the scope of disclosure and acceptance of social supervision to the use of compensation funds, and the remaining information should be moderately closed. The fourth is classified disposal.

Professor Huang Lihui of The Judicial Appraisal Institute of Ecological environmental Damage of Shandong University, on behalf of Professor Gao Zhenhui, gave a speech entitled "Reflections on the Appraisal and evaluation of biological pollution damage in the appraisal process of ecological environmental damage". He pointed out that more attention has been paid to chemical and physical pollution than to biological pollution. He proposed two urgent problems: one is whether the "baseline determination" and "causality determination" methods of biological pollution damage can adopt or learn from other ecological environmental damage identification methods, or study new "baseline determination" and "causality determination" methods based on the characteristics of biological pollution. Second, "indicator biological screening" has important reference value for the determination of environmental damage, how to establish indicator system and screen indicator organisms in different regions and different environmental media. Huang suggested that the study of biological pollution damage assessment system and methods should be accelerated, and technical guidelines on biological pollution damage assessment should be issued in a timely manner.

Lin Jianing, associate researcher of the Judicial Appraisal Institute of Ecological environmental damage of Shandong University, made a speech entitled "Problems and reflections on the ecological damage compensation of oil spill accidents at sea". Lin Jianing introduced in detail the specific situation of the oil spill accident of "412 symphony" in the Yellow Sea, and outlined the specific economic and ecological losses of the offshore oil spill accident. She pointed out that the outstanding problem facing the compensation for toxic and harmful substances in China is the conflict between the high claim cost and the limitation of liability limitation fund. She suggested speeding up relevant legislation, breaking through liability limits, maximizing compensation for oil pollution damage, creating conditions for effectively resolving the above contradictions, strengthening protection of ecological and environmental interests, and safeguarding China's maritime rights and interests.

On behalf of lawyer Zou Kun, lawyer Liao Yucheng of Beijing Zhonglun (Wuhan) Law Firm delivered a speech titled "Judicial Conception of Civil Supplementary Administrative Public Interest Litigation by Social Organizations". Liao Yucheng pointed out that the cause of the problems left by abnormally operating enterprises is that the enterprises "have no governance motivation, no governance financial resources, and no repair pressure", and the administrative organs responsible for environmental supervision are negligent in their duties. Therefore, only solving environmental problems left by abnormally operating enterprises through environmental civil public interest litigation may lead to idling of effective judgments; while social organizations are allowed to file civil incidental administrative public interest lawsuits, procuratorial organs are encouraged to participate in the lawsuit as supporters of the plaintiff, and they will also appeal for pollution through judicial channels. The main body and the administrative organ assume responsibility, which not only conforms to the provisions of the current laws and judicial interpretations on environmental public interest litigation, but also reflects that the judiciary is the last line of defense for the restoration of the ecological environment, which is conducive to the effective implementation of the national strategy of ecological civilization. Liao Yucheng put forward two suggestions: First, in order to prevent indiscriminate litigation, whether to allow social organizations to file civil incidental administrative public interest litigation should be approved by the court, and the court should reasonably determine the responsibilities between the accused enterprise and the administrative agency in a joint trial. Second, in order to achieve the purpose of judicial protection and restoration of the ecological environment, it should be determined in light of the actual situation that the accused enterprise with abnormal operation and the administrative organ shall respectively bear the responsibilities of removing obstacles, eliminating danger, compensating for losses, restoring the original state, and making apologies. If the court orders the sued administrative agency to undertake the responsibility of "repairing on its behalf", the court should also make it clear that the administrative agency has the right to seek compensation from the abnormally operating enterprise, so as to improve the judicial quality and efficiency.

Ye Suqing, a master student from the Environmental and Resource Law Research Center of Jiangxi University of Science and Technology, in his speech entitled "A Preliminary Study on the Regulation of Environmental Protection Organizations' Litigation Behavior", discussed the practical problems of environmental protection organizations' litigation behaviors in environmental cases: one is that environmental protection organizations sue hastily, and the other is to prosecute The evidence is weak, and the third is the weak ability to litigate. Ye Suqing put forward the following suggestions: First, in terms of program design, pre-litigation procedures for environmental protection organizations to file environmental public interest lawsuits should be set up, and environmental protection organizations should be urged to do a good job in prosecuting and responding to lawsuits; second, in terms of financial security, a special fund for environmental public interest litigation should be established , to resolve the worries of environmental protection organizations, and actively do a good job in ecological damage identification; thirdly, in terms of talent team building, set up a team of environmental public interest litigation public interest lawyers to provide professional legal assistance to environmental protection organizations.

Professor Wang Shijin, director of the Environmental and Resource Law Research Center of Jiangxi University of Science and Technology, argued in the discussion session that the discussion of environmental civil incidental administrative public interest litigation is beneficial, but it should be combined with the current status of the fulfillment of legal supervision duties in my country and the level of social organization capacity building. Correctly understand why environmental organizations are not given the right to file civil incidental administrative public interest lawsuits. First, we must take into account the performance of the procuratorial organs' legal supervision duties, and second, we must take into account the problem of insufficient capacity building of social organizations in my country at present.

Professor Qiao Gang from the School of Economics and Law of Southwest University of Political Science and Law pointed out in the discussion session that legal research should conduct systematic analysis on the ecological damage caused by oil spills at sea. If ecological damage claims and ecosystem management are regarded as two issues, each with one end, it is difficult to reflect the holistic thinking that contemporary jurisprudence should have in dealing with marine oil spills, and the research style will inevitably be meticulous or empty. Regarding the perfect path for environmental protection organizations' litigation behavior, Qiao Gang believes that it is necessary to pay enough attention to the subject qualifications of environmental protection public welfare organizations, the improvement of litigation procedures, the specialization of personnel, the problem of litigation costs, and the development of environmental protection organizations.

3. Conclusion: Improve the diversified resolution mechanism for environmental disputes and realize the construction of ecological civilization, good law and good governance

In the summary speech of the meeting, Sun Youhai said that this seminar is of great significance and fruitful results. In particular, the participating experts put forward the background of promoting the compilation of the "Eco-Environmental Code" in view of the outstanding problems of the diversified resolution mechanism of environmental disputes in practice. This paper explores the theoretical approach and practical path suggestions for establishing and improving a diversified resolution mechanism for environmental disputes. Sun Youhai pointed out that at this annual meeting, the participating experts reached a consensus after sufficient academic exchanges and discussions, that is, the diversified resolution mechanism for environmental disputes will organically combine various dispute resolution mechanisms such as mediation, notarization, arbitration, appraisal and litigation, and fully Mobilizing the participation of multiple subjects such as people's courts, third-party institutions, social organizations, and the public plays an important and irreplaceable role in the process of realizing the modernization of national governance and the process of good environmental governance.

(Sun Youhai, Chairman of the Rule of Law Branch of China Ecological Civilization Research and Promotion Association, Chairman of the Professional Committee of Environmental Disputes Diversified Resolution Mechanism of the Environmental Resources Law Research Association of the China Law Society; Meng Chunxue, Assistant Researcher of the China Institute of Green Development, Tianjin University)

Source: "China Ecological Civilization" Magazine 2021 Issue 6

Original Chinese article:https://mp.weixin.qq.com/s/39hyy3bman5D_pCW1E9_OA

Translator/Lucy

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