【作者】 密佳音；

【导师】 张创新；

【作者基本信息】 吉林大学 ， 行政管理， 2010， 博士

【摘要】 正义是社会生活诸领域追求的理想目标,环境领域亦然如此,环境物品的公共属性和环境资源的有限性特征凸显了正义的份量。鉴于市场机制本身无法克服和补偿经济发展对环境造成的负外部性,环境正义无法完全通过私人或民间方式得以实现,谋求政治方式是唯一可行的途径。政治基于社会共同体对正义这一至善境界的追求而生,政治行为必当以正义为圭臬,因而政治领域的正义是环境正义的保障。作为国家政治系统中处于强大地位的权威性集团,政府以其优势获得了环境公共权力以及环境管理主体的法定资格,成为相当时期内维护环境正义的主导者。然而,政府有其自身独立的价值诉求和行为方式。当正义与权力发生联系,正义的实际内涵往往因权力背离和异化于权利而偏离原意。环境正义需要通过一套行之有效的操作程序,将普遍正义的道德精神渗透到环境行政过程中,方可最终实现目标。作为公共行政模式发展的新趋向,政府回应模式能够促进政府公共行政程序的民主化,反映多数人的意愿,使行政程序体现正义性。融合环境民主理念的政府回应型环境行政模式以正义为纽带将政府回应与环境行政紧密契合,使环境民主从观念转化为实体意义上的实质正当性,通过促进政府环境行政行为的正义性,保障环境行政的过程价值和结果价值。本研究立足于专业领域和研究方向,尝试从本学科领域出发,探寻实现环境正义的有效环境行政模式。首先,在对环境正义的相关基础性理论作以阐释的基础上,分析了环境的公共品属性及解决环境正义问题对公共权力的诉诸,论述了政府代表国家主权者维护环境正义的正当理据和优势,以及政府对于环境正义问题的担当。其次,点明了程序正义是政府环境行政过程中的首选价值,论述了作为现代政府公共行政管理规范性样本的政府回应模式其品格迎合了环境程序正义对政府行政过程价值的要求,其功能满足了环境实质正义对政府公共行政模式的期待,由此指出了政府回应是实现环境程序正义的载体和达致环境实质正义的工具性程序。同时,解释了政府回应型环境行政模式的内涵,分析了政府回应型环境行政模式之于环境正义的价值,构建了政府回应型环境行政模式的基本分析框架。复次,归纳了我国政府在不同历史时期先后采取的四种环境行政模式,追溯了我国环境行政机构沿革和环境政策法规发展的变迁进程,深入探究了跨越传统与现代政府环境行政模式中的环境正义观与政府回应内涵发展。再次,通过反思我国转型期环境非正义表象,从实质正义、程序正义两方面论证了政府环境行政的正义性偏离,进而阐明了政府环境行政偏离环境民主基础凸显出政府的回应能力的薄弱性。由此,指出了政府回应型环境行政模式对环境民主正当性的昭示,并强调了构造政府回应机制对于规约政府环境行政行为趋于正义的迫切性。同时,分别从传统权力性环境行政模式的弊端、制度基础薄弱两方面,深入剖析构建政府回应型环境行政模式的天然不足和主要障碍。最后,通过对政府在环境领域的角色进行合理定位、革新传统权力型环境行政模式、对政府回应型环境行政模式提出环境实质正义目标、对政府回应型环境行政模式进行流程设计和构造路径,建构作为实体的政府回应型环境行政模式,以作为环境程序正义的关键保障。同时,围绕政府回应型环境行政模式四个子系统,详细探讨了其赖以运行的具体制度安排。另外,从法律、社会、文化等方面营造政府回应型环境行政模式良性外部环境。更多还原

【Abstract】 As a comprehensive scope and human long-lasting value appeal, justice is an ideal goal pursuit in the area of social life, so the environment field. Inequitable sharing of environmental responsibility and unevenly distributing of and the resulting environmental crisis deeply touched to the heart of the justice problem, extension in the environmental field which provides the possibility of extension in the environmental field for justice, and environmental justice is one of the sub-areas of social justice. The public nature, the public welfare, complexity, uncertainty of the contemporary environmental issues and the potential threat to development of human society shows that the market mechanism alone can not overcome and compensate for the negative externalities on the environment caused by economic development, that environmental justice can not be achieved entirely through private or non-governmental means. So to find a political way is the only feasible way. As the political was born based on the pursuit of justice that is a perfection realm by social community political behavior must be based on justice, thus the justice of political field protect the environmental justice.Based on the empowerment of political structure, the history prescriptive of its role and the irreplaceability of status in our society, the government has received the public power in the environment field and the main legal qualifications of environmental management with its authoritarian nature, and became the dominant leader maintain the environmental justice in a considerable period. However, the government has its own independent value pursuit and behavior. When the contact occurs between justice and power, the real meaning of justice often deviates from the original intent because power departures from or aliens the right. Therefore, the procedural norms of government conduct have become fundamental to achieve environmental justice. As a process value, the procedural justice is also the preferred value in the process of environmental administration. The procedural justice of environmental administration emphasized that the government’s actions of environmental administration should follow the basic rules and procedures arrangements of justice, that its spiritual essence is to substantiate and concern at the justice of process itself of the environmental administration.As the executive organ of state power and social management of public affairs, the government’s environmental public power settings and its operating mode is the results of the public promotion from the beginning. As the largest stakeholders of environmental issues, the public demands for environmental justice has experienced the process from proposing demands reasonably to safeguarding legal rights rationally, and in this process the public is most looking forward to timely and effective response by the government elected and commissioned by the public. The government response, which is the essential meaning in the modern governance paradigm, asked the government should make timely and responsible response to the public’s willingness. Therefore, the government should reform the traditional environmental-administration model, enhance the public’s autonomy, improve the government responsiveness, and formed an open and transparent, positive and interactive exchange mechanism between the government and the public in the process of environmental administration, which enable the government from the maximum, the broadest sense consider the environmental interests, needs and wishes of the public, especially vulnerable groups, to ensure that administration results can be accepted and recognized by the community members, particularly stakeholders. As a new development trend of the public administration mode, the government respond keeps an exactly consistency of the pursuit of intrinsic value with environmental justice in essence, and freedom, equality and order together constitute a link which combined the two closely. On the one hand, as an operational and procedural paradigm the character of government respond model meets the value demand the environmental procedural justice asks the government’s administration process; on the other hand, the government response model contains the real meaning of justice, and its function meets the expectations the environmental substantial justice asks the government’s public administration model. Therefore, the influence from close cooperation between the two is than that from a single theme.The mode selection of government’s environmental administration is closely related to the political and economic systems of different historical periods. With a step change in economic and social development, the government as the subjects of environmental administration needs to change the original and outdated administrative model. At the same time, the ideal of environmental justice combines with the social reality. In a certain social and historical conditions, the environmental administration mode is always showing a real-time progress of content development that the concept of environmental justice exposes and a different form of government respond. Since the new era, the public "rights-based" concept of environmental justice and the practice of government response under environmental administration model of a modern government have come to the horizon.According to the emerging environmental injustice in social transition period, we could see that there also exists a lack of justice in the government action through reflecting two aspects, namely environmental Substantial justice and environmental procedural justice. First, the government behaves unfair in distribution of environmental benefits which is contrary to the environment substantial justice. Second, the government misconduct in the course of formulation and implementation of environmental policy which deviate from the environmental procedural justice, power base behind the government’s environmental administrative act must be the environmental democracy, which stressed that the government should maintain agility, justice and effective to respond to the public’s expression of its willingness to respond to the rapid nature of justice and effectiveness, and listen to and meet citizens who alienate and commission their natural rights to the government the willingness of maintaining environmental justice on behalf of all society members. If the government’s environmental administrative acts are injustice, then it means that the government breaks from the initial direction of environmental democracy, that is, the government could not respect and effectively response to public opinion very well. Therefore, the injustice of government’s environmental administrative acts must highlight the weak of government response. The government’s lack of respond capacity becomes the shackles of the pursuit justice of the environmental administration.The environmental administration model of government-respond type combining the concept of environmental democracy integrates the government response with the environmental administration closely by justice as a link. The model could transforms the environmental democracy from the concept into the substantial legitimacy of physical sense, and could safeguard the process value and result value of environmental administration through promoting the government administrative to act with justice. The essence of the environmental administration mode of government-respond type is an intermediary to make environmental justice from potential to reality, and the core of that is that integrated the environmental procedural justice and environmental substantial justice into a certain mode of environmental administration. As for the achievement of environmental justice ideal, the environmental administration mode of government-respond type is an effective way. However, there still exist a lot of immature factors on the current terms of China’s political development process, of which the biggest obstacle to building the model is: on the one hand, the natural weak of our government response roots in the binding of traditional-power environmental administration mode; on the other hand, the main obstacle to build the model lies in the weak of the institutional basis.The environmental administration model of government-respond type penetrates the justice concept in the process of environmental administration, and the model is the logical starting point and central theme of the government’s achievement of environmental substantial justice. Construction of the model should follow these basic ideas: Firstly, we need locate a reasonable position for the government’s role in the environmental field to make it comply with the role ethics of modern government. Secondly, we put the innovation in traditional-power environmental administration mode as a precondition for the ontology preparation of this new model. Again, we take the pursuit of environmental substantial justice as the ultimate goal which proposes the goal orientation and rationality reflection of the model. Recovery times, we should construct the environmental administration model of government-respond type as an entity to take it as a mediator to realize the environmental procedural justice through designing process of the government’s response mechanism in the environment field, constructing the basic path the model is necessary to follow to, building and improving the institutional basis of the model. Finally, we should create an external environment by promoting to construct the system of laws and regulations of law-based administration, strengthening the interaction and effectiveness of the government response, bedding the moral basis to keep a healthy relations between government and citizens, in order to provide the necessary protection for the model to maintain a favorable operating.更多还原