生态修复责任私法实现之限定OACHSSCDCSSCI

Nowadays,there are two realization mechanisms of ecological restoration as a public law responsibility,namely,public law and private law.Ecological restoration dominated by private law relief not only deviate from the concept of unity of substantive legal order in the jurisprudence;but also violate the principle of prohibiting repeated evaluation;meanwhile exacerbate other chaotic phenomena such as lax law enforcement and judiciary overriding administration,resulting in the path disorders and overlap in the content of responsibility.To this end,there is an urgent need to clarify the circumstances,under which responsibility for ecological restoration can be realized through private law.Ecological restoration responsibility as a public law responsibility,its private law realization should return to the public law system of complementary status,only applicable to the lack of public law norms,restoration costs claim,administrative regulation failure.When realized through the path of private law,it is necessary to distinguish between fault liability and illegality liability as a constituent element,emphasizing the determination of subjective fault and limiting the scope of objective violation of the"law".At the same time,the implementation and supervision of ecological restoration should be led by administrative organs.As a result,the relationship between public law and private law in the path of ecological restoration realization should be straightened out,the legal problems when choosing different paths should be solved,and the private law application of ecological restoration responsibility should ultimately be promoted in a measured and orderly manner.