"China Water Resources": water administrative penalties should be separated from the compensation for damages
Article 45 of the Regulations of the People's Republic of China on the Management of Watercourses of the People's Republic of China promulgated on June 10, 1988 stipulates that, in case of damage to river water conservancy facilities, the waterway authority may directly order the parties to make compensation for the losses. The author believes that the direct competent authority for river training is improper. Briefly analyzing the application of "ordering compensation for damages" in Article 45 of the "Regulations" in combination with the following cases. Case: In order to get used land for operation, a kiln farm will illegally excavate a river dike that takes flood control and drought relief and agricultural irrigation and drainage functions, resulting in some slope protection collapsing. To ensure river diversion safety, river management units can only close the upstream control gates and suspend water diversion. At the same time, investigate and deal with illegal water cases and repair damaged water conservancy projects as soon as possible. Question: In this case, how can we directly apply the "order to compensate for the loss" stipulated in Article 45 of the "Regulations" for the loss of water supply to the river management units and the damage caused to the dike and water conservancy projects? The view is that in the process of water administrative enforcement, the case can directly apply the provisions of Article 45 of the "Regulations" and when making the "Decision on Water Administrative Punishment (Management)", the main body of the water administrative law enforcement shall make the "order Compensation for loss of a few dollars "decision. In this regard, I oppose the views, the following three reasons. First, without the express authorization of the law, it is difficult to obtain the support of the people's court in administrative litigation. In the Reply of the Administrative Tribunal of the Supreme People's Court on whether a worker can cause a grassland fire to investigate the joint economic responsibility of the employer, the article states: "Article 31 of the" Prairie Fire Prevention Regulations "stipulates that" the person liable for the loss caused shall be liable for compensation " Is civil liability.The article did not authorize the administrative organ to handle civil liability.The defendant in this case made an administrative decision on civil liability without legal basis, which is an act of superfluous power. "The Supreme People's Court upheld the principle that damage to fire prevention facilities and equipment and grassland fires Liability for compensation should be a civil liability; administrative organs must have a clear authorization for handling. At this time, those who directly deal with the aforementioned case in handling Article 45 of the Regulations may say that Article 31 of the "Prairie Fire Prevention Ordinance" has a different structure from Article 45 of the "Regulations" Article 45 of the "Regulations" shall be the authorization of the river channel authority. In this connection, the author believes that the formulation of Article 45 of the "Regulations" has the characteristics of the legislation at that time (Article 47 of the "Water Law" of 1988) even though it should be regarded as an authorization at that time. With the " Law "promulgated and implemented and" Water Law "in 2002 amendments, the validity of such authorization should be questioned. Second, the authorization should be provided by law. Article 8 of the "Legislation Law" stipulates that the people's government at all levels and powers, the basic civil system, the judicial and arbitration systems shall enact laws to regulate them. "Ordering compensation for losses" involves the functions and powers of the constituent departments of the people's government and requires the determination of the amount of losses, the sharing of responsibilities and the validity of evidence, and is of quasi-judicial nature. Therefore, it should be prescribed by law or be decided by the National People's Congress and its standing committee according to actual needs, to authorize the State Council to formulate administrative regulations. Thirdly, there is no provision for "compensation for damages" in the recent water legislation. Article 61 of the "Flood Prevention Law" stipulates that the expression "causing damage and assuming civil liability according to law" shall be adopted. New Water Act Article 72 provides that "to cause losses to others, according to the law to assume liability for compensation." Thus, neither the current "Water Law" nor the "Flood Control Law" authorizes the water administrative departments or river departments to exercise the power to order compensation for losses. According to the principle that the new law is better than the old law and the superior law is better than the lower law, the applicable law should be chosen when the different provisions on the handling of the same kind of illegal act are different between the law and the administrative regulations. For this case, I believe that the administrative penalty procedures should be separate from the loss compensation procedures. At the administrative level, in accordance with the relevant provisions of the administrative penalties for water, according to the administrative punishment procedures, make a decision to stop the illegal acts, take remedial measures, fines and other penalties; civil compensation procedures, the river channel management unit to collect evidence of the loss, if necessary Statutory assessment of institutional assessment, and notarization of the local notary may save the evidence, and then, through consultation, mediation or civil litigation to resolve the compensation for losses. Legal Link Article 45 of the Regulations for Channel Management stipulates that one of the acts of facilities such as embankments, bank revetments, sluices, waterworks, damage to flood control facilities, hydrological monitoring and measurement facilities, riparian geological monitoring facilities and communications lighting facilities , The competent authority of the river under the local people's government at or above the county level shall, in addition to ordering it to correct the illegal act, compensate for the losses and take remedial measures, may concurrently be warned of and fined; and should give punishment to public security management in accordance with the provisions of the "Regulations on Public Security Management Punishment" ;Constitute a crime, be held criminally responsible. Article 45 of the Regulations of the People's Republic of China on the Management of Watercourses of the People's Republic of China promulgated on June 10, 1988 stipulates that, in case of damage to river water conservancy facilities, the waterway authority may directly order the parties to make compensation for the losses. The author believes that the direct competent authority for river training is improper. Briefly analyzing the application of "ordering compensation for damages" in Article 45 of the "Regulations" in combination with the following cases. Case: In order to get used land for operation, a kiln farm will illegally excavate a river dike that takes flood control and drought relief and agricultural irrigation and drainage functions, resulting in some slope protection collapsing. To ensure river diversion safety, river management units can only close the upstream control gates and suspend water diversion. At the same time, investigate and deal with illegal water cases and repair damaged water conservancy projects as soon as possible. Question: In this case, how can we directly apply the "order to compensate for the loss" stipulated in Article 45 of the "Regulations" for the loss of water supply to the river management units and the damage caused to the dike and water conservancy projects? The view is that in the process of water administrative enforcement, the case can directly apply the provisions of Article 45 of the "Regulations" and when making the "Decision on Water Administrative Punishment (Management)", the main body of the water administrative law enforcement shall make the "order Compensation for loss of a few dollars "decision. In this regard, I oppose the views, the following three reasons. First, without the express authorization of the law, it is difficult to obtain the support of the people's court in administrative litigation. In the Reply of the Administrative Tribunal of the Supreme People's Court on whether a worker can cause a grassland fire to investigate the joint economic responsibility of the employer, the article states: "Article 31 of the" Prairie Fire Prevention Regulations "stipulates that" the person liable for the loss caused shall be liable for compensation " Is civil liability.The article did not authorize the administrative organ to handle civil liability.The defendant in this case made an administrative decision on civil liability without legal basis, which is an act of superfluous power. "The Supreme People's Court upheld the principle that damage to fire prevention facilities and equipment and grassland fires Liability for compensation should be a civil liability; administrative organs must have a clear authorization for handling. At this time, those who directly deal with the aforementioned case in handling Article 45 of the Regulations may say that Article 31 of the "Prairie Fire Prevention Ordinance" has a different structure from Article 45 of the "Regulations" Article 45 of the "Regulations" shall be the authorization of the river channel authority. In this connection, the author believes that the formulation of Article 45 of the "Regulations" has the characteristics of the legislation at that time (Article 47 of the "Water Law" of 1988) even though it should be regarded as an authorization at that time. With the " Law "promulgated and implemented and" Water Law "in 2002 amendments, the validity of such authorization should be questioned. Second, the authorization should be provided by law. Article 8 of the "Legislation Law" stipulates that the people's government at all levels and powers, the basic civil system, the judicial and arbitration systems shall enact laws to regulate them. "Ordering compensation for losses" involves the functions and powers of the constituent departments of the people's government and requires the determination of the amount of losses, the sharing of responsibilities and the validity of evidence, and is of quasi-judicial nature. Therefore, it should be prescribed by law or be decided by the National People's Congress and its standing committee according to actual needs, to authorize the State Council to formulate administrative regulations. Thirdly, there is no provision for "compensation for damages" in the recent water legislation. Article 61 of the "Flood Prevention Law" stipulates that the expression "causing damage and assuming civil liability according to law" shall be adopted. New Water Act Article 72 provides that "to cause losses to others, according to the law to assume liability for compensation." Thus, neither the current "Water Law" nor the "Flood Control Law" authorizes the water administrative departments or river departments to exercise the power to order compensation for losses. According to the principle that the new law is better than the old law and the superior law is better than the lower law, the applicable law should be chosen when the different provisions on the handling of the same kind of illegal act are different between the law and the administrative regulations. For this case, I believe that the administrative penalty procedures should be separate from the loss compensation procedures. At the administrative level, in accordance with the relevant provisions of the administrative penalties for water, according to the administrative punishment procedures, make a decision to stop the illegal acts, take remedial measures, fines and other penalties; civil compensation procedures, the river channel management unit to collect evidence of the loss, if necessary Statutory assessment of institutional assessment, and notarization of the local notary may save the evidence, and then, through consultation, mediation or civil litigation to resolve the compensation for losses. Legal Link Article 45 of the Regulations for Channel Management stipulates that one of the acts of facilities such as embankments, bank revetments, sluices, waterworks, damage to flood control facilities, hydrological monitoring and measurement facilities, riparian geological monitoring facilities and communications lighting facilities , The competent authority of the river under the local people's government at or above the county level shall, in addition to ordering it to correct the illegal act, compensate for the losses and take remedial measures, may concurrently be warned of and fined; and should give punishment to public security management in accordance with the provisions of the "Regulations on Public Security Management Punishment" ;Constitute a crime, be held criminally responsible.
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