环境行政监督听证的祛魅与重构(英文)

时间:2018-10-22 作者:博学论文网
  Abstract:Interview of administrative supervision transforms environmental supervision model from supervising enterprise to supervising government, and has substantially realistic value to urge local government to fulfill environmental quality responsibility.Attributing to such factors as the limitation of end-of-pipe treatment, deficiency of power of environmental protection department, biased functional orientation and lack or defect of interview system, it has following issues: interview system is confused;lack of long-term validity or effectiveness; chaos on responsibility investigation;negotiation is inadequate of interview procedure etc. we should re-construct its legal attribute, function and systems based on the guiding ideology of cooperative administration as well as the basic principle of legitimacy and coordination under the background of government institutional reform.
  
  Keyword:interview of administrative supervision on environmental protection; local government; environmental quality responsibility; reform of government institution; re-construction;
  
  1. Putting forward questions: puzzlement of environmental supervision and consultation
  
  Since the 18th National Congress of the CPC, the Party and the state have raised the construction of ecological civilization to an unprecedented height. The report of the 19th National Congress of the CPC clearly states that we should “promote green development”, “continue to implement air pollution prevention and control actions, win the blue sky defense war”, “reform the ecological environment supervision system”, “build a beautiful China” and “promote the formation of people”. Harmonious development of nature and the new pattern of modernization “[1]. On March 21, 2018, the Central Committee of the Communist Party of China issued the ”Program for Deepening the Reform of the Party and State Institutions“ which emphasized that ”we should treat the ecological environment like life“. Therefore, in recent years, China has promulgated the strictest environmental protection law and relevant laws and regulations, reformed the environmental protection law enforcement system, innovated the environmental protection law enforcement mechanism, established the system of environmental protection supervision talks, and realized the great change from ”supervision enterprises“ to ”both supervision and supervision, with supervision as the main“ environmental supervision mode. In order to strengthen and implement the responsibility of local governments for environmental quality, accompanied by the implementation of the new environmental protection law, the environmental protection departments set off a storm of interviews: in 2015, the Ministry of Environmental Protection carried out a comprehensive inspection of 33 cities (districts), interviewed 15 principal leaders of municipal governments; 163 cities were comprehensively inspected and 31 cities were comprehensively inspected. [2] was interviewed. For a time, interviews have been called ”the most powerful tooth“ to urge local governments to solve environmental problems and implement the government's responsibility for environmental quality, [3], ”a potent drug“ [4], ”a sharp weapon“ [5], ”a strong grip“ [6], and even ”opened a new model of environmental governance“ [7]. ”The Ministry of Environmental Protection interviews a large number of local government leaders“ with the ”new environmental protection law promulgated“ by the media as ”China's environmental protection in 2015 one of the ten hot issues“.
  
  But the attitude toward the interview is not one-sided: some people worry about the ”empty talk“ and ”empty talk“[8]; some people doubt the effectiveness or long-term effectiveness of the interview: ”It's best if the interviewees have heard about it, but if people have followed suit, or faced with the fierce situation of environmental protection talks, local governments are in a hurry. Renovation, but once the wind was heard, it came back again. How to prevent and cure such problems?“”Environmental interviews are no more efficient than expedient measures, not conventional means, enough emergency, difficult to say long-term effect.“[9], therefore, interviews are not a lifesaving straw to solve environmental problems [10]; some people believe that the interviews are still”essentially just“and”good people“of the”show“ ‘”[11]; some people even ask,“Is an environmental interview a good medicine or a dog's skin ointment?”[12]
  
  Such worries and anxieties are not groundless. Although the national environmental quality situation improved in the first half of 2015, even though this improvement was seen as an immediate result of the interviews, in the second half of the year, the economic downward pressure caused by industrial restructuring, factory closures, and laid-off workers increased, and the maintenance of economic fundamentals and social stability became local customs. Some local governments have relaxed their environmental supervision and re-emerged the problem of atmospheric pollution. From the haze-inhabited areas of northeast China, central plain, Beijing, Tianjin and Hebei to the southern cities of Shanghai and Wuxi, heavy and long-lasting heavy pollution weather swept across China with unprecedented intensity. The big part. In January 2016, the Central Environmental Protection Supervision Group interviewed the Secretary and governor of Hebei Provincial Party Committee, and opened the prelude to the pilot project of the Central Environmental Protection Supervision. The inspectors found more and more problems. “Many places have plans, no measures, deployment, no implementation, assessment, no accountability for atmospheric governance, resulting in a lot of workflow in the form. Even the situation of being interviewed by the city has been discovered for a while. [3] To further urge local Party committees and governments to implement their environmental quality responsibilities, the central government sent four batches of environmental protection inspection teams to conduct environmental protection inspections in 31 provinces, autonomous regions and municipalities from July 2016 to August 2017. Although the Central Environmental Protection Inspectorate has replaced the environmental protection interview as the focus of public attention, as one of the links, the interview is still frequently used to urge the Party committee government to perform its environmental responsibilities. In the first round of the Central Environmental Protection Inspectorate, a total of 18448 leading Party and government cadres were interviewed [13]. In addition, only in 2017, more than 20 cities were interviewed by the Ministry of Environmental Protection [14], and more by local governments or local environmental protection departments. But high-level, high-density interviews have not been able to withstand the crazy fog and haze, and high-level warnings of heavy pollution weather have emerged one after another. The law enforcement inspection by the Standing Committee of the National People's Congress and the feedback from the Central Environmental Protection Supervision Group also show that the situation of serious environmental pollution and degradation of ecological quality in China is still grim, and the government's responsibility for environmental protection is still not in place (1)。 Facts have proved that the fear of interviews is not worrying.
  
  It is also worth noting that apart from expressing concern about the effect of the interview, public opinion has begun to dispute the ”one-size-fits-all“ environmental control measures taken by local governments under the pressure of the storm, while the central environmental supervision and the Ministry of Environmental Protection inspect the storm sweeping the land of China. In April 2017, Xinhua published an article entitled ”Environmental protection control can not be“one-size-fits-all”. It accused local governments of not distinguishing between enterprises that meet or fail to meet environmental protection standards, and the“one-size-fits-all”control measures that stop production at all peaks could not play the role of eliminating the fittest, and even appeared the reverse elimination of“those who lose their responsibility are lenient and those who do their duty are strict”. June 19, “Legal Daily” published the “Ministry of Environmental Protection to deal with air pollution noise interference - environmental law experts put forward against illegal enterprises on the whole” [16]. On June 29, Polaris Environmental Protection Network published an article entitled “Xinhua News Agency, Legal Daily Mutual Environmental Supervision How Mutual, How Mutual?” [17], and other websites have joined in the debate, pushing the environmental control of local governments and environmental protection departments to the forefront under the pressure of environmental supervision. The author holds that there is no objection to environmental protection talks or environmental inspectors in finding environmental problems and urging local governments to actively fulfill their environmental quality responsibilities, whether they question the environmental protection talks or criticize the environmental inspectors. How to urge local governments and their environmental protection departments to take into account the interests of all parties, adopt scientific and feasible rectification measures and form a long-term mechanism of environmental protection governance, and in this respect, it just exposed some inherent defects of the interview.
  
  Compared with the popularity of interview in various fields of practice, the research on interview has not attracted enough attention in academic circles. Some scholars even describe the different encounters between the theoretical circle and the practical circle with “the double sky of ice and fire”. In the limited research of the academic circles, the research contents are mostly focused on the supervision and enterprise interviews conducted by the administrative organs against the administrative counterparts, while the research on the supervision and administration interviews conducted between the Party committees at lower levels, the government and its functional departments is very few. Specifically in recent years, the use of the most striking environmental supervision talks, the research results are few (1)。 In this paper, the practice of environmental supervision talks and the existing problems are comprehensively combed, and combined with the current starting of the reform of national institutions to respond to its Countermeasures in theory, with a view to throwing a brick to attract jade.
  
  2. Problems exposed in the practice of environmental supervision and management interviews
  
  The practice of environmental supervision talks began at the local level (2), but it was used as a “sharp weapon” for the implementation of the environmental protection law and then started a “talk storm” after the implementation of the new environmental protection law in 2014, especially in 2015. Since 2016, China's practice of environmental supervision talks has further developed into two types: one is at the national level, the most representative of which is the interviews conducted by the Ministry of Environmental Protection (including the Ministry of Environmental Protection in conjunction with other subjects, the Environmental Supervision Bureau under the jurisdiction of the Ministry of Environmental Protection and the Regional Inspection Center (3)。 The interviewees in such interviews are usually at the district level. The other is the interview conducted by the Central Environmental Protection Supervision Group on behalf of the CPC Central Committee and the State Council. The interviews are mainly conducted by the provincial and provincial governments and the municipal committees and municipal governments which are to sink to some districts. Along with the in-depth implementation of the practice of environmental supervision and administration, the problems are gradually emerging.
  
  (1) confusion in the system of interviewsThe confusion of the system of talks is reflected in two aspects:
  
  ① absence and dislocation of interviews.
  
  This is mainly reflected in the talks initiated by the Ministry of environmental protection. According to the Notice of the State Council Concerning the Issuance of the Action Plan for the Prevention and Control of Air Pollution (No. 37 of the State Council) (hereinafter referred to as Notice No. 37 of the State Council) and the interview system established by the National Key Points of Environmental Supervision in 2015 (4), the Ministry of Environmental Protection shall interview the provincial governments and the provincial environmental protection agencies to interview the municipal governments with districts. However, in the turmoil of supervision interviews since 2014, the Ministry of Environmental Protection has never interviewed provincial governments, and the interviews were conducted with district-level municipal and county-level governments. Therefore, we need to ask: why does the Ministry of Environmental Protection always choose the municipal and county governments instead of provincial governments as the objects of inspection and interviews?
  
  ②。 Interweaving of Party and government interviews.
  
  Whether the Ministry of environmental protection initiates interviews with provincial governments or the central environmental supervision talks sink into the city of the community, it will lead to the interweaving of Party and government talks, resulting in a new problem: how to divide the powers of the two? On the other hand, one of the purposes of the central environmental protection supervision talks is to overcome the Ministry of environmental protection interviews with lower levels of government. However, from the point of view of procedure, the Central Environmental Protection Inspectorate first finds out the problems and then talks to those who are unable to rectify them. (5) According to the Interim Measures for Interim Talks, the Ministry of Environmental Protection inspectors should talk to them after they find out the problems and then rectify them. Therefore, the Central Environmental Protection Inspectorate is the premise of the interview. It is much more relaxed. So, how can it achieve the purpose of enhancing the deterrent power of interviewing?
  
  (2) lack of long-term effectiveness or effectiveness
  
  The lack of long-term effectiveness refers to the fact that the interview has only achieved temporary results, but the environmental problems that caused the interview have not been fundamentally solved, and will even recur over time. This defect has been explained in the introduction. The lack of effectiveness is mainly manifested in two aspects: first, the interview did not achieve practical results, a prominent example is that the Zhumadian Environmental Protection Bureau in August-December 2014 three times asked the Pingyu County Government to ban according to law 27 leather enterprises that do not conform to industrial policies, but the Ministry of Environmental Protection North China Inspection Center in February 2015 on-site inspection. At present, leather enterprises in the park are not only in normal production, but also increased to 30 [19]. Second, although the interviewees have rectified the environmental problems after the interview, they did not meet the requirements of the interview. For example, the Luliang Municipal Government was interviewed by the Ministry of Environmental Protection in May 2015, due to the inadequate rectification, in December 2016 was re-interviewed by the Ministry of Environmental Protection [20].
  
  (3) accountability after investigation.
  
  The confusion of accountability after the interview is manifested as follows: (1) the people's Congress being interviewed extensively, super-stringently, overstepping the procedures and punishing the functional departments and lower-level government leaders, “to dismiss officials to the community or higher-level government to show the determination of environmental governance'declaration', or'upgrade'into a temporary diversion of public attention'blindfold'. Law’”[21]; (2)“The common use of mistake, dereliction of duty, inadequate, improper and other vague words in the cause of prosecution, resulting in administrative accountability failed to form an objective judgment standard.” [22] (3) “Certain internal interviews have been alienated as”shrouds“to shelter”problematic officials“and become”umbrellas“for government officials and law enforcement officials to evade legal and disciplinary sanctions” [23]. For example, in 2017, the first city to be interviewed by the Ministry of Environmental Protection - Linfen City, Shanxi Province, in the two years since the implementation of the new environmental protection law, the quality of the atmospheric environment has been deteriorating continuously [24], belonging to the “Party and government leading cadres accountability for ecological environment damage (trial implementation)” Article 5, paragraph 1, Item 1 of the provisions of the “implementation of the Central Committee on the construction of ecological civilization” The local Party Committee and the main leading members of the government should be held accountable for the poor decision-making and deployment, resulting in the prominent ecological and resource problems in the region or the obvious deterioration of the ecological and environmental conditions during their tenure of office. Committee member. In response to this phenomenon, some people believe that the Ministry of Environmental Protection “put the existing laws and regulations unheeded, but is enthusiastic about the interview, which is a play by the end of the book.” [25] In the author's opinion, when the environmental protection department does not have the legal supervision and accountability to the government, its attempt to urge the lower government to fulfill its environmental quality responsibility through interviews not only reflects its efforts to abide by its due diligence, but also reflects the helplessness of its inadequate power, so the interviews are described as “showy” and “ready-made law”. It is unfair to ignore the laws and regulations and to abandon the origin to the end, but the interviews do cover up the accountability of the relevant personnel.
  
  (4) lack of negotiation in negotiation procedure
  
  From the interviews reported by the media, the procedures at all levels are the same: interviewers point out problems, ask for rectification, and put pressure on local government leaders at lower levels, who express a heavy heart and vow to rectify. In such an interview procedure, the focus of the interview is on conducting pressure, as to why the environmental problems occur, whether the rectification requirements put forward by the interviewer can be completed within the prescribed time limit, what rectification measures will be taken by the lower local government, and whether the rectification measures are feasible or not are not the focus of the interview, and the two sides are lacking in the interview. Lack of necessary communication and exchanges, which laid the groundwork for the effectiveness of the interview and the chaos of environmental governance after the interview.
  
  3, analysis of the reasons leading to environmental consultation.
  
  The problem of environmental supervision and consultation is the result of multiple factors.
  
  (1) defects in terminal management methods
  
  In practice, most interviews are initiated because of serious environmental problems, and the emergence of serious environmental problems is often the result of many repeated and complicated factors accumulated over the years. The final solution depends on the establishment of pre-event preventive mechanism, such as the change of development concept, the adjustment of industrial and energy structure, the improvement of environmental impact assessment system, etc. The negotiation of the way of governance can not be accomplished at all.
  
  (2) the lack of power in the environmental protection department under the bureaucratic system.
  
  Under our country's bureaucratic system of block division, the “key rule” of power operation is that the same level of units can not issue binding instructions to another unit. Operationally, this means that no ministry can issue binding orders to any province, even if the Ministry (directly under the central government) is above 31 provinces in the organizational coordinate system. [26] This has led to the plight of environmental protection departments at higher levels in performing their duties when they find environmental violations at lower levels of local governments, and also answered why the Ministry of Environmental Protection chose the municipalities with districts and below rather than provincial governments as the subjects of the interview.
  
  Not only does the Ministry of Environmental Protection not have the power to issue binding instructions to lower levels of government, but the legal basis for issuing binding instructions to other lower levels of government is also insufficient. A direct example is that although the new environmental protection law adds supervisory powers (1) to higher levels of government to lower levels, whether the environmental protection department under the higher level of government can be subordinate to the new law. The problem of supervising the environmental protection work of the government is not clear (2)。 “In this sense, it is impossible to find the direct legal basis for the Ministry of Environmental Protection to supervise the local government from the existing legislation.” [27] Since the Ministry of Environmental Protection has no power to supervise and accountable local governments, it can only resort to interviews with vague legal effect to remind, warn and urge them. When interviews are conducted by agencies affiliated to the Ministry of Environmental Protection, their status and status are even more embarrassing, even if they “inspect local governments in the name of the Ministry of Environmental Protection, supervise their power and influence levels.” The level and scope are limited, the authority and deterrence are not enough, it is difficult to form effective constraints; only inspection, investigation and treatment of environmental violations of the right to suggest, the lack of appropriate means of restraint. [28] This makes the Ministry of Environmental Protection often powerless when the local government fails to implement or fails to comply with the requirements for rectification, resulting in “the substantive'lethality'of the interview is deficient” and “no deterrence” [29]. The Ministry of environmental protection has talked about lower level local governments, and the environmental protection agency has talked about lower level local governments. Perhaps it is out of concern for their own power that the normative documents on interviews formulated by environmental protection departments at all levels require only the environmental protection department presiding over the interviews to print the summary of the interviews in the form of notes rather than official letters.
  
  (3) bias in the functional orientation of the pressure transmission mechanism.
  
  It is closely related to the operation mode of government power under the pressure-type system in China. As a pressure transmission mechanism, interviews are relied on by environmental protection departments and central environmental supervision. However, pressure transmission always has “ripple effect” or “attenuation effect”, and in the process of conduction, it is always accompanied by the level and time of conduction. Gradually weakened, therefore, “through the layers of pressure to promote the operation of government departments at all levels, can not become a country's government to achieve the normality of responsibility.” [30] Relating to the functional orientation of pressure conduction, the interviewee often puts forward rectification requests in a high-pressure situation and is passively accepted by the interviewee. The interviewee's insufficient guidance and assistance (especially in a centralized interview) leads to the interviewee's lack of discipline despite being sworn to be interviewed. Learning and feasible rectification methods, and in the subsequent rectification of negative attitude or unscrupulous rush to deal with.
  
  (4) bias in the functional orientation of the pressure transmission mechanism.
  
  It is closely related to the operation mode of government power under the pressure-type system in China. As a pressure transmission mechanism, interviews are relied on by environmental protection departments and central environmental supervision. However, pressure transmission always has “ripple effect” or “attenuation effect”, and in the process of conduction, it is always accompanied by the level and time of conduction. Gradually weakened, therefore, “through the layers of pressure to promote the operation of government departments at all levels, can not become a country's government to achieve the normality of responsibility.” [30] Relating to the functional orientation of pressure conduction, the interviewee often puts forward rectification requests in a high-pressure situation and is passively accepted by the interviewee. The interviewee's insufficient guidance and assistance (especially in a centralized interview) leads to the interviewee's lack of discipline despite being sworn to be interviewed. Learning and feasible rectification methods, and in the subsequent rectification of negative attitude or unscrupulous rush to deal with.(4) deficiencies or deficiencies in the environmental supervision and negotiation system
  
  ① institutionalization of environmental consultation
  
  Environmental protection interview is the application of interview in the field of environmental protection. According to the data collected by the author, its institutionalization began in 2007 in Ningde City, Fujian Province, Ningde People's Government formulated the “Ningde Environmental Protection Interview System”. The normative document, on the one hand, follows the previous provisions of most other administrative supervision fields on the application of the interview and the nature of the interview. It is a measure taken by environmental protection organs to implement the responsibility for rectification in the event of major environmental pollution and ecological damage accidents or major environmental security risks. The interviewees are not only confined to the principal persons in charge of the production and operation units, but also include the principal leaders of the people's governments and industry departments of the counties (cities, districts) and towns (neighborhoods) where the production and operation units are located. In 2009, the Qinghai Environmental Protection Department issued the “Environmental Protection Interview System (Trial Implementation)” of the Qinghai Environmental Protection Department; in 2010, the Zhengzhou Municipal Government promulgated the “Warning Interview System on Major Environmental Issues”; the Shandong Environmental Protection Department and the Provincial Supervision Office jointly promulgated the “Outstanding Environmental Issues Interview System”; in 2011, the “Warning of Major Environmental Issues in Xinzheng City” The Interview System and the Notice of Liaocheng People's Government Office on Printing and Issuing the Interview System on Outstanding Environmental Problems in Liaocheng City were promulgated one after another. So far, the system of environmental supervision talks has been established in the county-level to provincial governments, and the central level of the system of environmental supervision talks is not yet in place.
  
  Environmental protection talks began on October 17, 2011 when the State Council issued the State Council's Opinions on Enhancing Key Work of Environmental Protection (Guofa [2011] 35) (hereinafter referred to as “Guofa [2011] 35 Opinions”), calling for “strengthening environmental law enforcement supervision. Local government leaders responsible for failing to fulfill environmental protection objectives or major environmental emergencies should be interviewed to implement rectification measures. After that, the State Council made similar provisions for the interviews in nearly 10 normative documents (1)。 In addition, Article 25 of the Environmental Monitoring Measures enacted by the Ministry of Environmental Protection in 2012 also makes a principled norm for interviews, especially in 2014, in order to regulate the work of supervision interviews, the Ministry of Environmental Protection enacted the first central level of the special legislation for Interviews - ”Interim Measures for Interviews of the Ministry of Environmental Protection“ (hereinafter referred to as ”Interim Office of Interviews“)。 The Law provides more detailed provisions on what is an interview, the reasons for the interview, the interviewee, the interviewee and the procedure for the interview. Article 22 of the Law of the People's Republic of China on Prevention and Control of Air Pollution, which was revised in 2015, puts the interview into the legal level to be standardized. So far, China's environmental protection talks have undergone a process of institutionalization from the local to the central. Unlike the local interviews system, except for the Environmental Supervision Measures, the central level of environmental protection talks system is only a supervisory interviews system, which clearly reflects the central government's intention to strengthen the responsibility of environmental protection. With the support of legislation at the central level, the system of environmental supervision talks has sprung up all over the country.
  
  ② problems in the environmental supervision and negotiation system
  
  lack of interview system of central environmental inspectors
  
  As mentioned earlier, there are not only interviews at the national level (mainly conducted by the Ministry of Environmental Protection), but also interviews conducted by the Central Environmental Protection Supervision Group on behalf of the CPC Central Committee and the State Council. The latter type of interviews include both the Party Committee and the government. The interviews are at a higher level and on a larger scale. Under such circumstances, there is no corresponding normative basis for interviews, interviews and interviews.
  
  defects in the system of supervision and negotiation by environmental protection departments
  
  In China's multi-level environmental supervision interview system, in view of the fact that the practice of the Ministry of environmental protection interview is the most notable, this paper mainly based on the ”Interim Measures“ and as its legislative basis, ”Guofa [2011] 35 Opinion,“ the ”General Office of the State Council on the transfer of the Ministry of Environmental Protection“Twelfth Five-Year Plan”major pollutants emission reduction assessment office Notice of the Law (State Office issued [2013] 4) and Notice 37 (hereinafter referred to as “Guofa [2013] 4”) are samples to analyze the defects of the environmental supervision interview system.
  
  First, the nature of the interview is not clear. Article 2 of the Interim Measures for Interview defines the interview as “an administrative measure taken by the Ministry of Environmental Protection to interview the responsible persons of local governments and relevant departments who fail to perform their environmental protection duties or fail to perform their duties, to conduct warning talks according to law, to point out relevant problems, to put forward rectification requirements and to urge rectification in place”. What is the nature of the measure? “Guofa [2011] 35 Opinion” put the interview under the theme of “strengthening environmental law enforcement supervision”, and “Guofa [2013] 37 Notice” placed the interview under the theme of “strict accountability” (1), and “Guofa [2013] 4 Notice” put the interview side by side with the briefing criticism, exhortation conversation (2), the latter two seem to intend to confirm the interview. As a kind of legal liability, interview is not a kind of legal liability according to the stipulations on the situation of investigation and the subject of investigation, so what is the nature and function of interview? What is the difference between interview and exhortation talk? What is the right of the interviewee to take when the interviewee fails to fulfill the requirement of interview? Measures?
  
  4, the restructuring of environmental supervision and consultation system under the background of institutional reform.
  
  Supervisory talks play an important role in the field of environmental governance in China, and have great practical value in urging local governments to implement environmental quality responsibility. The ongoing institutional reform provides a perfect opportunity for its improvement, but also provides a broader space for it to play a greater role. The author holds that besides adapting to the changes in the name and function expansion of the organization (1) it is advisable to rename the environmental supervision talks as the ecological environment supervision talks, and to reshape the legal attributes, functions and specific systems.
  
  (1) reshaping the guiding ideology and basic principles of environmental supervision and negotiation system.
  
  ①。 guiding ideology: collaborative governance“China's need for effective environmental management is becoming more and more important. Ultimately, however, this challenging issue can only be addressed by vigorously expanding and strengthening collaboration mechanisms between local and central government agencies. [31] China's environmental sinking is due to the policy preference and political incentives of higher-level governments, which attach importance to economic growth over environmental protection for a long time. Although the new development concept including green development has been written into the fundamental law of our country, the accumulated disadvantages left by the old policies and systems can not disappear immediately with the implementation of the new policies and systems. ”The central government and the provinces“ Municipal and county governments do not have much links between environmental protection departments in terms of funds and law enforcement, which aggravates the problem that central government decrees are difficult to implement. [32] The environmental chronic diseases accumulated over a long period of time need governments at all levels and their functional departments to face together and strengthen law enforcement cooperation, which will be of great benefit to changing the concept of inviting guests from higher levels of government and paying bills from lower levels of government, improving the willingness of the interviewees to abide by the law, ensuring the effectiveness of the interviews and promoting the smooth flow of government decrees.
  
  ②。 basic principles
  
  (1) the principle of legality. This principle requires that the power of interview should be allocated according to the legal nature of the interview, and the establishment and exercise of the power of interview should be within the scope of the legal supervision power of the interviewer. (2) the principle of coordination. Under the background of the current reform of the Party and state organs and the reform of the environmental supervision system in China, there are three requirements for this principle: firstly, the design of the interview system should be compatible with the adjustment of the Party and state organs and the reform of the environmental supervision system; secondly, the interview is only one of the measures to urge the local government to fulfill its environmental quality responsibility. The design and operation of the system should be coordinated with the accountability system for ecological environmental damage and other supervision and accountability systems. Thirdly, there should be coordination within the various interview systems, especially at the national level and the central environmental protection supervision interview.
  
  (2) the legal attribute and functional orientation of the consultation on ecological environment.
  
  ①。 legal attribute: Supervision of administrative level supervision measures
  
  In order to perfect the system of environmental supervision and discussion and overcome the shortcomings in the practice of environmental supervision and discussion, we must clarify the nature of its behavior. The author thinks that it is more appropriate to orientate the eco-environmental supervision interview as a hierarchical supervision measure within the administrative system for two reasons: first, it conforms to the formulation purpose of the supervision interview system in our country to urge the subordinate governments and their functional departments to fulfill the responsibility of environmental protection subject conscientiously; second, it conforms to the new opportunity of innovating the administrative hierarchical supervision in our country. The reform direction of the system. In 2004, the State Council promulgated the ”Comprehensive Promotion of the Implementation of Administration According to Law“ on the clear put forward to ”innovate the new mechanism of administrative level supervision, strengthen the supervision of higher administrative organs to lower administrative organs,“ the ecological environment supervision talks will be positioned as administrative level supervision measures in line with China's new mechanism of administrative level supervision reform. It is conducive to strengthening the supervision of the superior administrative organs to the lower administrative organs.
  
  ②。 function orientation: investigation function and negotiation function
  
  Among the various supervisory measures to ensure the implementation of ecological environment law, different supervisory measures have different functions and different supervisory subjects and supervisory methods decided by them. Compared with judicial supervision, administrative reconsideration and supervision by the people's Congress, the functions of political consultation include:
  
  First, the causes of environmental problems and the function of investigation before accountability. Interviews are often initiated because of serious environmental problems that have been verified to be true, but environmental problems are only superficial. The key question is, what are the causes of these problems, whether they exist and what violations exist. It is very important to clarify these issues for subsequent formulation of effective corrective measures and accountability for violations of law and discipline. The interviewer can not grasp sufficient and necessary information, therefore, through interviews to analyze the causes of environmental problems and find out the facts of violations should become the primary function of interviews.
  
  Second, the negotiation function of the rectification plan. Out of the value orientation of power division, respect for administrative organs or right relief, whether it is judicial supervision, administrative reconsideration or supervision by the NPC, the supervisory organs are indifferent to how the administrative organs correct their illegal activities. The value orientation of the interview is not the right relief, but to urge the lower administrative organs to actively perform their duties. Therefore, when pointing out the problems and putting forward the requirements for rectification, the interviewer should make use of his advantages in professional technology and the power of reward or punishment to guide or encourage the lower administrative organs to deal with the environmental administrative problems, and through negotiation to break down the feasibility and necessity of the rectification plan drawn up by the lower administrative organs, so as to seek practical rectification. The plan will reduce the compulsory shutdown of all enterprises and other unconventional emergency practices, improve the acceptability of rectification requirements and scientific rectification measures, and ultimately urge local governments to effectively fulfill their environmental responsibility.
  
  (3) reconstruction of specific systems
  
  ①。 constructing a typological system of ecological environment negotiation based on the object of interview.
  
  In order to reconstruct the system of environmental supervision interview, we should change the shortcomings of the present system or practice of environmental protection interview in our country, and take the interview object as the standard to implement the typification of ecological environment interview. Specifically, the eco environmental talks can be divided into three types: (1) supervision and consultation. This kind of interview is a flexible administrative law enforcement method based on the idea of serving and participating in administration. It takes the ecological environment organ as the interviewer and the administrative counterpart as the interviewee. (2) political consultation. This paper defines such interviews as hierarchical supervisory measures within the administrative system, and the two parties are the governments at lower levels or the organs of ecological environment at lower levels within the administrative system. (3) supervise the Party committee's interviews. In this paper, such interviews will be positioned as the level of supervision measures within the party, and the two sides are the higher and lower organs within the party. These three types of interviews are different in the interviewer, the interviewee, the reasons for the interviews and the consequences of the interviews, which should be designed separately. Limited space and the theme of this article, only a preliminary improvement idea is put forward in the following part.
  
  ②。 reconstructing the decentralized negotiation system based on the statutory leadership or supervisory power.
  
  ”The real concept of administrative authority implies a certain concept of hierarchy“[33]. Therefore, in order to enhance the authority and effectiveness of the eco-environmental supervision talks, the interview system should be reconstructed based on the legal leadership or supervision under the bureaucracy. According to the ”Guiding Opinion on the Reform of the Vertical Management System for Monitoring, Supervision and Enforcement of Law by Environmental Protection Institutions Below the Provincial Level“ (hereinafter referred to as ”Guiding Opinion on the Vertical Reform of Environmental Protection Institutions“), after the ”Vertical Reform“, the environmental supervision functions of the environmental protection departments at the municipal and county levels will be transferred to the provincial environmental protection departments for unified exercise and The supervisory function will turn to law enforcement inspection of territorial enterprises. The author holds that the increase of supervision function of environmental protection departments has not solved the problem of power shortcomings of lower local governments supervised by provincial environmental protection agencies. To solve this problem, we can draw lessons from China's Food Safety Law and divide it according to leadership or supervision authority on the basis of following the idea of ”vertical reform“ and combining with the State Council's Institutional Reform Plan. The practice of assigning the authority of supervision interview (1) Establishing the following decentralized supervision interview system: 1) interviewing the lower government by the higher government. Although the newly-established Ministry of Ecology and Environment and the proposed lower-level organs of ecology and environment have integrated the ecological and environmental responsibilities scattered in different departments before the reform and further expanded their terms of reference, as a government department, the functions and powers of supervising the lower-level local governments are still inadequate, and the power of interviewing the lower-level local governments is under the leadership and authority of the lower-level local governments. The supervisory authority is more suitable for the higher authorities. (2) The higher ecological and environmental departments shall interview the lower ecological and environmental departments or the government shall talk about the ecological and environmental departments to which they belong. According to the Guiding Opinions on the Vertical Reform of Environmental Protection Institutions, municipal environmental protection institutions have implemented a dual management system with the provincial environmental protection department (bureau) as the main body. The main leaders are nominated and appointed and removed by provincial environmental protection organizations. The county environmental protection institutions are directly adjusted to the local offices of municipal environmental protection bureaus. Therefore, the power of discussion on the supervision of the ecological environment should be taken over the provincial level. At the same time, if the municipal government interviews the municipal eco-environmental institutions, the interview should be reported to the provincial eco-environmental departments as the basis for assessment and evaluation.
  
  ③。 limit the reasons for the contraction, and give play to the division of labor and coordination of other supervisory systems.
  
  ”If there is something wrong, there is something to do.“ (2) in the same sense, we should make it possible for the interview to be done. The author holds that the reasons for the interview should be confined to the environmental problems that have not passed the examination, the ecological environment objectives have not been completed or other ecological environment problems are more prominent and need to be further clarified. The environmental problems that need to be formulated specific rectification plans should not be talked about when the facts of violation of the law are clear or the ways to solve them are clear. For example, many interviewing systems regard major environmental emergencies as the reasons for interviews. The author believes that the ”Measures for Investigation and Treatment of Environmental Emergencies“ has made more comprehensive provisions on the investigation and treatment of emergencies, without further interviews; for example, local governments formulate documents that violate environmental laws and regulations, and local government leaders. Pre-falsification of monitoring data, independent enforcement of the law and other environmental violations shall be recommended by the ecological and environmental departments to the authorities to revoke or pursue responsibility in accordance with the provisions of relevant laws and regulations, and interviews are not necessary.
  
  ④。, giving the interviews no qualitative legal consequences, enhancing their externalities to enhance their deterrence.
  
  In order to prevent interviews from becoming ”petty followers“, the Interim Measures for Interviews and most of the normative documents for local interviews should be changed to position interviews as mere reminders and cautions, without stipulating the consequences of interviews or stipulating that the interviews should be held accountable only if they have not been corrected or corrective measures have not been implemented after the interviews, leading to such a situation. The abuse that the responsible person evades accountability is established as a negative evaluation of the government and its related leaders. Once the government is interviewed, the region should be restricted by regional approvals, the selection and assessment of relevant leaders will be adversely affected and even be prosecuted for legal responsibility (3)。
  
  In order to improve the deterrent of interview, the way of communication in the interview notification procedure should be changed. The interview information and the rectification and implementation should be printed and distributed to the supervisory committee participating in the interview and the relevant government and relevant departments with the authority of examination or cadre management through official official letters instead of notes. To improve the effectiveness of interviews.
  
  ⑤。 Incorporate the supervisory organ or the Ombudsman into the invited subject of the interview to realize the information sharing and collaboration between the interviewer and the responsible subject.
  
  Practice shows that in recent years, malfeasance cases in the ecological environment, which focus on the crimes of dereliction of duty, abuse of power, dereliction of duty in environmental supervision and non-transfer of criminal cases for personal gain, have become a high incidence area of job-related crimes in China. It is difficult for procuratorial organs to find and obtain evidence. . Most of the interviews stipulated in the documents of the Ministry of Environmental Protection and other places belong to the situation of serious environmental problems verified, and most of them may be suspected of environmental duty violations or crimes. According to the Regulations of the Supervisory Law of the People's Republic of China, after the reform of the state organs, the newly established Supervisory Committee shall investigate the duty-related violations and crimes, such as corruption and bribery, abuse of power, rent-seeking of power, malpractice for personal gain and so on, make a decision on administrative sanctions against the illegal public officials, and give leadership to those who fail to perform their duties and derelict their duties. If a person pursues responsibility and refers the results of the investigation to the people's procuratorates concerned for examination and prosecution according to law, the supervisory committee shall cooperate and restrict each other with law enforcement departments and procuratorial organs in handling cases of duty-related crimes or crimes, and the supervisory committees at all levels may provide authorized organizations to state organs, laws and regulations, etc. If a supervisory organ or a supervisor is stationed or dispatched, the supervisory organ or the Supervisory Commissioner shall have the right to supervise public servants and investigate and dispose of them according to law (1)。 According to these regulations, bringing supervisory organs or commissioners into the invitees of interviews is the reflection of the mutual restraint and cooperation between supervisory organs and law enforcement organs, which can provide clues for the supervisory committee to investigate and handle such cases, handle relevant responsible personnel, and change the situation of evading accountability due to interviews in practice. If the Supervisory Committee considers that public officials are suspected of duty-related crimes, it will directly transfer the findings of the investigation to the relevant people's procuratorates for examination and prosecution according to law, which will help to solve the problem of poor connection between administrative law enforcement and criminal justice.
  
  ⑥。, focus on environmental issues and its rectification plan, improve the negotiation procedure, and enhance the negotiation nature of the negotiation procedure.
  
  ”The formulation and implementation of legal rules should be guided by solving practical problems“, [35]. In order to achieve the desired interview effect, in addition to changing the way of notification, the one-way pressure conduction interview procedure should be deconstructed, focusing on the analysis of environmental problems and the determination of improvement plans, and the problem-oriented and negotiative interview procedure should be established.
  
  (1) In the preparatory stage of the interview, the interviewee shall notify the interviewee of the reasons, time, place and participants for the interview, and shall also notify the interviewee of the preparation of a detailed rectification plan. Accordingly, the preparation time for the interviewee to participate in the interview shall be appropriately extended.
  
  (2) In the formal implementation stage of the interview, the two sides should mainly focus on the reasons for the interview and its causes, and whether the rectification plan is feasible. ”The essential characteristics of procedure are neither formal nor substantive, but procedural and negotiable.“ [36] ”negotiation in a program has the function of achieving agreement through reflection. At the time of negotiation, the parties who hold different opinions, stimulated by the opinions of the other side, are bound to reflect on their own views, thus forming an objective understanding of the controversial issues, eliminating their own subjective prejudices and reaching agreement with the other side. [37] Through two-way negotiation, the “inter-subjectivity” of the interviewees is enhanced, and the causes of the environmental problems as the reasons for the interviews are clarified. The interviewees can also use their advantages in professional technology and their powers as supervisory organs at higher levels to give guidance, support and assistance to the interviewees, so as to propose corrections. The requirement is more acceptable, and the rectification plan achieved is more feasible. This negotiation-based interview procedure should have the following characteristics: first, openness, the interview process and related information to stakeholders, experts and the public, open procedures can solve the problem of information asymmetry, but also reflects the concept of Public Governance - “public governance is the advantage of the modernization of national governance, but also more importantly Significant differences between the modernization of state governance and traditional state management”[38]; second, argumentation, whether the question raised by the interviewer, evidence or rectification requirements or rectification measures proposed by the interviewee can be debated; third, conformity with public reason - illegal alliances are based on mutual consent, but not public Reason is not justified.
  
  (3) In the way of interview, it is advisable to adopt the form of separate interview. Concentrated interviews for most of the interviewees are not conducive to the deepening of the negotiations and the realization of operable and targeted rectification plans.
  
  conclusion
  
  The deep reason for the emergence of environmental supervision talks lies in the dilemma of environmental protection departments under the bureaucratic bureaucracy in China: it should carry out a unified supervision and management of environmental protection work nationwide or within its own administrative region, but it has no legal supervision and accountability right to environmental omission, disorderly behavior or even environmental violations of the lower government. Therefore, the environmental protection department urges the lower government to fulfill its environmental protection duties by means of interviews, which not only reflects its good wish to fulfill its responsibilities, but also reflects its powerless helplessness. Although the interview of the Central Environmental Protection Supervision can help to overcome the shortcomings of the interview, there are still some problems to be solved. “The current situation we are facing is still very serious, and there is still a long way to go in the future”[39]. Under the background of the outbreak of environmental problems in China, it is necessary to conduct supervision talks as an end-point treatment measure with Chinese characteristics for the existing environmental problems, but its effectiveness and long-term effectiveness still need to be improved at present. The large-scale institutional reform and functional reorganization should be taken as an opportunity, the cooperative administration as the guiding ideology, the legitimacy and coordination as the basic principles, and the legal attributes, functions and specific systems should be reconstructed. Of course, to eradicate China's environmental problems, we still need to rely on green development concept, industrial and energy structure changes, the adjustment of officials'political incentives and other pre-preventive mechanisms to implement.
  
  Reference
  
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  [5] Zhang Lei. Make good use of this weapon for environmental interviews [N]. Guangming Daily, 2016-01-08 (02); Gu Yixian. Make the “interviews” an environmental “superintendent” weapon [EB/OL].  
  [6] Ge Cha Zhong, et al. Discussion on environmental supervision and negotiation system, [J]. environmental protection, 2015, (12): 23.  
  [7] Deng Xianping. Environmental talks can not be limited to specific environmental issues [N]. Southern Metropolis Daily, 2015-12-18 (A02)。  
  [8] Sheng Renyun. Environmental protection talks are not empty talk [N]. Henan Daily, July 2015-24 (11); Wen Tianxiao. Environmental protection “talks” must not be “empty talk” [N]. China Economic Report, 2015-07-31 (B05)。  
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