作者：刘长兴
作者介绍：华南理工大学法学院教授
出版日期：2022年12月9日
内容提要 近年来，生态环境修复责任的理论与实践不断发展，但其概念内涵仍不清晰、性质定位仍存争议，立法和司法实践也显得相对滞后。以生态环境保护目标为基本参照方能准确界定生态环境修复的内涵，进而明确生态环境修复责任的概念并推动其成为法律上定位准确、内容清晰的责任形态。基于生态环境修复责任的公益维护和公共秩序恢复价值，应当明确其行政法律责任定位，并具体分为环境污染和破坏者的修复责任以及政府的修复责任，以区别于民事侵权救济意义上的恢复性责任。对于《民法典》规定的生态环境修复责任，不宜在环境侵权制度框架下进行解释，而应坚持其公益救济、公法责任的定位。应将民事公益诉讼和生态环境损害赔偿制度作为追究生态环境修复责任的特殊途径。环境污染和破坏者的生态环境修复责任追究主要依赖环境行政法律、法规的完善，应具体规定其适用范围、条件，以及与修复标准和评价规则相联系的修复责任内容，并将其作为特殊的行政处罚方式纳入行政执法轨道；政府的生态环境修复责任应当明确责任主体及具体的成立条件、责任内容，逐步实现制度化，提升其可执行性。
关键词 生态环境修复 公共利益 行政法律责任 行政处罚 政府职责
Abstract: The theory and practice of ecological environment restoration liability have been developing these years, but there are still problems including the unclear connotation, the controversial nature, and delayed application in legislation and judicial practice. Only if we take the aim of eco-environmental protection as the basic reference, can we accurately define the connotation of ecological environment restoration, then clarify the concept of ecological environment restoration liability and make it a legal liability form with precise position and clear content. Based on the value of maintaining public welfare and restoring public order, restoration liability should be positioned as administrative legal responsibility, and specifically divided into the restoration responsibility of environmental polluters and destroyers and the restoration responsibility of the government, which differs from the restoration responsibility in the sense of civil tort remedy. As for the ecological environment restoration liability stipulated in the Civil Code, it should not be interpreted under the framework of environmental tort, but adhere to the position of public welfare relief and public law liability. Civil litigation of public interest and the system on compensation for eco-environmental damage should be taken as special ways to investigate the restoration liability. The accountability for ecological environment restoration of environment polluters and destructors mainly depends on the improvement of environmental administrative laws and regulations, with the specific stipulation of the scope of application, conditions, as well as the content of restoration responsibilities related to restoration standards and evaluation rules, and it should be brought into the track of administrative law enforcement as a special administrative penalty. The government’s responsibility for ecological environment restoration should be clarified in terms of responsible parties, specific conditions of establishment and content of responsibility to gradually realize institutionalization and enhance its enforceability.
