生態環境損害賠償磋商的制度邏輯與法典構造

Logic and Codification of Ecological Environment Damage Compensation Negotiation System

磋商是生態環境損害賠償制度改革的“七寸”，也是生態環境損害補救的主戰場。但目前磋商制度還存在諸多邏輯和經驗困境，突出表現為實體層面的損害認定擴大化、責任承擔貨幣化以及程序層面的司法確認和轉入訴訟比例低、磋商與關聯訴訟關係不明等問題。究其根源，是試圖在規範主義語境下定位磋商制度，故無論是民事行政論、行政協議論還是雙階構造論都無法給出妥當的解釋方案。有必要以功能主義作為對磋商制度的法理解釋和法典編纂的基本立場，將磋商定位於執法替代機制下的執法和解程序，並分別在生態環境法典法律責任編分別對磋商及其相關實體和程序問題作出統領性規定。

The negotiation mechanism in the ecological environmental damage compensation system is a pivotal reform aimed at advancing China's ecological civilization. It addresses the limitations of traditional administrative and judicial remedies by introducing a collaborative and flexible mechanism to resolve disputes related to ecological damage. As a pre-litigation alternative, negotiation serves to facilitate agreements between government entities, as compensation claimants, and responsible parties, prioritizing ecological restoration and public interest protection. However, the mechanism faces numerous substantive and procedural challenges that undermine its efficacy and legitimacy. Substantively, the broadening of damage recognition and the monetization of liability deviate from the core principles of ecological restoration. Compensation agreements often prioritize monetary payments over direct restoration measures, resulting in an over-reliance on financial remedies. Furthermore, punitive damages are increasingly applied, raising questions about their alignment with the restorative focus of ecological compensation. The inconsistent application of damage assessment standards, including the overestimation of damage or inappropriate use of punitive multipliers, further complicates the practice, leading to inequitable outcomes and undermining public trust. Procedurally, the judicial confirmation of negotiated agreements is underutilized, with only a small fraction of cases subjected to court review, resulting in enforcement challenges and a lack of accountability. Moreover, the relationship between negotiation and related litigation, including its potential to suspend public interest lawsuits, remains ambiguous, creating legal uncertainties and potential conflicts with other environmental legal mechanisms, Existing theoretical frameworks, including civil nature theory, administrative agreement theory, and dual-stage construction theory, struggle to adequately explain or justify the hybrid nature of the negotiation mechanism. Civil nature theory focuses excessively on private law principles, overlooking the public interest dimension of ecological protection. Administrative agreement theory, while emphasizing the public law aspect, fails to reconcile the flexibility and collaborative nature of negotiation with the rigidities of administrative law. Dual-stage construction theory, which divides the process into public law and private law stages, offers some analytical clarity but fails to address the underlying institutional conflicts and practical challenges. This study adopts a functionalist perspective to reinterpret and reposition the negotiation mechanism within China's legal system. Functionalism emphasizes the practical goals of ecological restoration, cost efficiency, and procedural flexibility over rigid adherence to traditional legal classifications. Under this framework, negotiation is conceptualized as an alternative enforcement mechanism that complements existing administrative and judicial remedies. It allows for pragmatic decision-making and resource allocation while addressing the complexities of ecological damage. To institutionalize this approach effectively, the negotiation mechanism must be codified within a comprehensive environmental legal framework that integrates substantive standards for ecological harm assessment, procedural safeguards for fairness and transparency, and rules clarifying its relationship with other legal processes. By rethinking the negotiation mechanism through a functionalist lens, this study underscores its transformative potential in achieving ecological restoration and safeguarding public environmental interests. Functionalism provides the theoretical and practical foundation to harmonize public and private law principles, ensuring that the mechanism aligns with the broader goals of China's ecological civilization reforms while addressing its current limitations. This approach offers a pathway for the negotiation mechanism to evolve into a cornerstone of modern environmental governance, promoting sustainable development and ecological justice.