Theoretical investigation and rule design of the judicial confirmation of the consultation agreement on compensation for ecological and environmental damages
As a typical public risk,ecological and environmental damage determines that the regulation of this risk needs coordination and cooperation between public law supervision and private law relief.The judicial confirmation of the consultation agreement on compen-sation for ecological and environmental damages is an important part of the system of compensation for ecological and environmental dam-ages towards the governance structure of public-private law cooperation,which aims to ensure the legality of the consultation agreement and give it enforcement force through the judicial review.Based on this,this study adopts the empirical research method to analyze the ap-plication status of the judicial confirmation of the consultation agreement on compensation for ecological and environmental damages.It is found that the application efficiency of the judicial confirmation of the consultation agreement on compensation for ecological and environ-mental damages is insufficient,which is due to the misunderstanding of the legal attribute of the consultation agreement and the essential attribute of the judicial confirmation of the consultation agreement on compensation for ecological and environmental damages.The re-search shows that the simple theory of civil contract or administrative contract cannot fit in with the legal attributes of the consultation agreement due to theoretical defects.The consultation agreement contains the dual nature of public law and private law.But its private law attribute is more prominent;it belongs to the special settlement agreement and should not be confused with the mediation agreement.Mean-while,the judicial confirmation of the consultation agreement on compensation for ecological and environmental damages is inconsistent with the basic characteristics of non-litigation procedure,so non-litigation procedure jurisprudence cannot be applied to judicial review.The nature of the judicial confirmation of the consultation agreement on compensation for ecological and environmental damages is more suitable for the summary procedure,and special procedure rules should be set up.Specifically,the compensation right holder and the com-pensation obligor shall jointly apply for and submit prima facie evidence with high proof force to initiate the procedure.The hierarchical ju-risdiction of the case can be set up according to the administrative level and degree of influence of the case,and the case can be subject to centralized jurisdiction by specialized tribunals set up by local courts.When the court mainly conducts formal examinations of applications and evidentiary materials,it should uphold the principle of substantive respect,focus on the legitimacy of the consultation procedure and the legality of the consultation agreement,and require that the public interest and the interests of interested outsiders of the case be not harmed.If there is a substantive dispute over the contents of the consultation agreement,the court shall terminate the procedure and inform the parties to bring a separate suit.The procedure shall guarantee the procedure participation rights of interested outsiders of the case and apply the 'objection-revocation' as the path of after-action relief.
the compensation for ecological and environmental damagesconsultation agreementpublic-private law cooperation theoryjudicial confirmation proceduresummary procedure
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