Ecological Governance and Restorative Legal Modernization Pathways for the Youshui River Basin: A Case Study of Nutrient Enrichment Discharge

Yanbin Jiang; Yuhua Song

doi:10.54691/xnnvks90

Authors

Yanbin Jiang
Yuhua Song

DOI:

https://doi.org/10.54691/xnnvks90

Keywords:

Proliferation and release, restorative justice, Youshui River basin, ecological governance.

Abstract

As a new criminal method of restorative justice of environmental treatment in Youshuihe River basin, the aim of proliferation and release is that the offender takes the individual responsibility on his own initiative, to compensate for the damage caused by their own criminal acts (illegal fishing of aquatic products) , to enable the restoration of damaged aquatic ecological functions, to repair damaged social relations and to promote the return of offenders to society, return to normal life order. It is a practical application of the green principle in restorative justice to realize the restoration and maintenance of damaged aquatic species, and to realize the multiple value-added of legal effect, natural effect and social effect, it is of great significance for the conservation and rational utilization of aquatic biological resources and the maintenance of national ecological security. The restorative justice of ecological management in Youshuihe River basin can promote the sublimation of the idea of“Heavy punishment, light prevention” in traditional criminal law and the practice of green principle in environmental resources trial. The compensation, prevention and restoration of proliferation and release, and the realization of restorative justice. It can coordinate the conflict between criminal responsibility and civil responsibility, establish a dialogue between the offender and the victim, and realize the idea of judicial person Proliferating and releasing accord with the aim of punishment and relation repair, and attach equal importance to judicial goal of judicial governance and repair. The restorative justice of environmental governance in the Youshui River basin needs to change its thinking, clarify its nature, balance its standards, guarantee its rights and improve its quality, so as to promote the application of restorative justice in environmental crimes in the Youshui River basin. The implementation of restorative justice in environmental crimes in Youshuihe River basin contributes to the realization of the legalization of criminal law, the coordination of the conflict between criminal responsibility and civil.

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References

Regulations on the Protection of the Youshui River in the Xiangxi Tujia and Miao Autonomous Prefecture (2017) Article 2, paragraph 2, Youshui River Basin refers to the area within the Xiangxi Tujia and Miao Autonomous Prefecture (hereinafter referred to as the Autonomous Prefecture) where the rainfall converges into the Youshui River, including the waters and land areas of the main stream of the Youshui River and its first-level tributaries. The specific scope is delineated by the People's Government of the Autonomous Prefecture and announced to the public. Regulations on the Protection of the Youshui River in Enshi Tujia and Miao Autonomous Prefecture (2017) Article 2 These regulations apply to the main stream of the Youshui River and its first-class tributaries. From 2017, four counties in Hunan and Hubei provinces (Xuan'en and Laifeng counties in Hubei, Longshan and Baojing counties in Hunan) have been carrying out comprehensive legal governance of the Youshui River Basin.

In June 2022, the police of the Youshui River Water and Land Police Station seized on the spot and seized the electrofishing tools and catches according to the law. Two people in Youyang were fined for illegal fishing and released more than 100,000 fish fry in the breeding stock. https://www.sohu.com/a/558268351_121106884; In 2021, the Public Security Bureau of Baojing County successfully investigated a case of illegal fishing, and four suspects were taken criminal coercive measures. https://www.sohu.com/a/ 452209116_785861; In 2018, Yuanling County set up a leading group for "combating illegal fishing", and carried out "special rectification of illegal fishing operations" 14 times in the reservoir area with public security, townships and wetland parks. Joint enforcement action with Guzhang County and Yongshun County of Xiangxi Prefecture was carried out once, with the participation of nearly 300 law enforcement officers and the use of 46 water law enforcement speedboats; more than 300 fishing boats were inspected, 6 illegal electrofishing boats were investigated and dealt with, 15 sets of electrofishing equipments were confiscated and destroyed, and more than 20 kilograms of catches were confiscated; 70 illegal net lifting nets were prohibited, and more than 10,000 metres of net lifting wires were collected; 8 ministries of the Vertigo Formation were dismantled, with a total of 600 metres; 1 case of pollution of the fishery industry was processed. 1 pollution case. https://people.rednet.cn/front/messages/detail?id=3281332

June 6 every year is the National Fish Release Day determined by the Ministry of Agriculture, whose purpose is to increase aquatic biological resources and promote the construction of ecological civilisation. Started in 2015. 6 June 2023 is the 8th National 'Fish Release Day .

Article 1234 of the Civil Code: [Responsibility for ecological restoration] Where ecological damage is caused in violation of state regulations and the ecological environment is capable of being restored, an organ prescribed by the state or an organisation prescribed by the law shall have the right to request the infringer to assume the responsibility for restoration within a reasonable period of time. If the infringer fails to repair the damage within the time limit, the organ prescribed by the state or the organisation prescribed by law may carry out the repair on its own or by entrusting others to do so, with the infringer bearing the necessary costs. Chapter 7 of the Tort Liability Section of the Civil Code, "Liability for Environmental Pollution and Ecological Damage": Articles 1234 and 1235 respectively stipulate the responsibility for restoration and compensation for ecological damage caused by infringers in violation of the state regulations, and clarify the right to claim compensation of the state-prescribed organs or organisations as prescribed by law. The right to claim compensation is also clarified for organs of the State or organisations prescribed by law.

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The effects of four mortality factors, namely, environmental mutation, predation, nativity and illegal fishing, on the amount of resources showed a consistent trend, which was manifested in the fact that the higher the level, the greater the reduction effect on the amount of resources, and under the same model, the amount of resources of the released population gradually increased with the continuation of time, and reached the maximum before the opening of the fishing season by the difference between different levels of mortality factors. See Xu Hailong. Optimisation of fishery stocking and release and exploitation strategy[D]. Supervisor: Chen Yong;Chen Xinjun. Shanghai Ocean University,2015.

Regulations on the Protection of the Youshui River in Xiangxi Tujia and Miao Autonomous Prefecture (2017) Article 49 Anyone who violates the provisions of Paragraph 3 of Article 30 of these Regulations by using methods of destroying fishery resources such as poisonous fish, deep-frying fish, electrofishing, etc., and by using gears smaller than the smallest mesh size such as lifting nets and trammel nets, shall be subject to confiscation of the catches and the illegal proceeds by the competent department of fishery administration of the people's government at or above the county level and shall be sentenced to a five-hundred yuan (RMB) or more than fifty thousand yuan (RMB) If the circumstances are serious, the fishing gear shall be confiscated and the fishing permit shall be revoked; if the circumstances are particularly serious, the fishing vessel may be confiscated; if a crime is constituted, criminal responsibility shall be investigated according to law.

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Article 9 of the Civil Code: Civil subjects engaging in civil activities shall be conducive to the conservation of resources and the protection of the ecological environment. By judicially releasing the damaged water bodies in the Youshui River Basin with indigenous fish such as Rhodeus albidus, red-eye trout, horse mussel, and clean-water fish such as bighead carp, silver carp, grass carp, etc., the restoration of the damaged biological populations in the Youshui River Basin can be realised, and multiple value-added legal, natural and social benefits can be realised.

Article 1232 of the Civil Code establishes liability for punitive damages. Punitive damages are a departure from traditional compensatory damages and are intended to impose aggravated sanctions for torts that are committed with malice aforethought, resulting in serious consequences. Punitive damages take "violation of law" as a prerequisite, "intentionality" as a subjective element, and "pollution of the environment and destruction of ecology resulting in serious consequences" as an objective outcome element.

Enshi Tujia and Miao Autonomous Prefecture Regulations on the Protection of the Youshui River (1 March 2017) Article 35 Anyone who violates the provisions of Paragraph 1 of Article 26 of these Regulations and fishes in a closed area or during a closed period shall be subject to the confiscation of the catch and illegal income by the administrative department of water conservancy and aquatic resources of the people's government at or above the county level and shall be subject to a fine of not less than 30,000 yuan and not more than 50,000 yuan.

Enshi Tujia and Miao Autonomous Prefecture Regulations on the Protection of the Youshui River (1 March 2017) Article 3 The protection of the Youshui River follows the principles of government-led, public participation, overall coordination, priority of protection, and strict prevention and control.

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Article 340 of the Criminal Law of the People's Republic of China [Offence of Illegally Fishing for Aquatic Products] Whoever violates the regulations on the protection of aquatic resources, fishes for aquatic products in a prohibited fishing area or during a closed period, or uses prohibited gears or methods, and if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, control or a fine.

Paragraph 1 of Article 38 of the Fisheries Law of the People's Republic of China Where fishing is carried out using methods that destroy fishery resources, such as deep-frying, poisoning or electrofishing, or where fishing is carried out in violation of the regulations on closed areas and closed periods, or where fishing is carried out using prohibited fishing gears, fishing methods and nets smaller than the minimum mesh size, or where the proportion of juvenile fish in the catch exceeds the prescribed proportion, the catch and the unlawful income shall be confiscated and a penalty of not more than 50,000 yuan shall be imposed. fine; if the circumstances are serious, confiscate the fishing gear and revoke the fishing permit; if the circumstances are particularly serious, the fishing vessel may be confiscated; if a crime is constituted, criminal responsibility shall be investigated according to law.

Regulations on the Protection of the Youshui River in Enshi Tujia and Miao Autonomous Prefecture (1 March 2017) Article 35 Anyone who violates the provisions of Paragraph 1 of Article 26 of these Regulations and fishes in a closed area or during a closed period shall be subject to confiscation of the catch and illegal income by the administrative department of water conservancy and aquatic resources of the people's government at or above the county level and shall be subject to a fine of not less than 30,000 yuan but not more than 50,000 yuan.

Regulations on the Protection of Youshui River in Xiangxi Tujia and Miao Autonomous Prefecture Article 49 If a person violates the provisions of Paragraph 3 of Article 30 of these Regulations by using methods of destroying fishery resources such as poisonous fish, deep-frying fish, electrofishing, etc., and by using nets smaller than the minimum mesh size such as lift nets and trammel nets, he or she shall be subject to confiscation of the catches and the unlawful proceeds, and shall be fined from five hundred yuan (500 yuan) to fifty thousand yuan (50,000 yuan) by the competent department of the People's Government of the People's Government of the county or above; If the circumstances are serious, the fishing gear shall be confiscated and the fishing permit shall be revoked; if the circumstances are particularly serious, the fishing vessel may be confiscated; if a crime is constituted, criminal responsibility shall be investigated according to law.

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Restorative justice began in the 1960s and 1970s, and was applied earlier in the United Kingdom, the United States and Canada. The initial form of restorative justice in the United States and Canada was the victim-perpetrator reconciliation programme, which, through the work of specialised organisations, facilitated the formation of a dialogue relationship between the victim and the perpetrator, with the perpetrator taking responsibility for repairing the damaged relationship and restoring the original community order. Restorative justice in the United Kingdom began with the juvenile correction system. Restorative justice in the common law system is not limited to misdemeanour cases, and some serious crimes also try restorative justice. The United States focuses on the application of non-custodial sentences to juvenile offenders, and the vast majority of these cases are closed by means of restorative justice. New Zealand and some indigenous peoples in North America, for example, apply criminal reconciliation methods such as "community justice" and "family group conferences", which emphasise the role of the family or community in the punishment of crime, in order to calm society's reliance on formal justice.

Article 65 of the Tort Liability Law: Where damage is caused by pollution of the environment, the polluter shall be liable in tort. Article 1234 of the Civil Code of the People's Republic of China: Where damage to the ecological environment is caused in violation of state regulations, and the ecological environment is capable of being repaired, an organ prescribed by the state or an organisation prescribed by law shall have the right to request the infringer to assume the responsibility for the repair within a reasonable period of time. If the infringer fails to repair the damage within the time limit, the organ prescribed by the state or the organisation prescribed by law may carry out the repair itself or entrust others to do so, with the infringer bearing the necessary costs.

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Regulations on the Protection of the Youshui River in Xiangxi Tujia and Miao Autonomous Prefecture Article 38 A system of mutual notification of environmental violations shall be established between the people's governments at the county level of the Youshui River Basin and their relevant administrative departments to inform them of environmental violations in a timely manner. The people's governments at the county level in the Youshui River Basin shall establish a notification mechanism for major matters such as environmental emergencies and emergency disposal measures among themselves. A system for assessing the quality of the water environment at the cross sections of river junctions shall be established between the people's governments at the county level of the Youshui River Basin, and the assessment shall be announced to the public on a regular basis.

Enshi Tujia and Miao Autonomous Prefecture Youshui River Protection Regulations (1 March 2017), Xiangxi Tujia and Miao Autonomous Prefecture Youshui River Protection Regulations (1 May 2017), Hunan and Hubei provinces and four counties (Xuan'en and Laifeng counties in Hubei, Longshan and Baojing counties in Hunan) "to implement the Youshui River Protection Regulations" NPC Supervision Joint Committee, agreed on two provinces and four counties The joint meeting agreed to implement the "Youshui River Protection Regulations" and endeavour to build a new mechanism for the management and protection of the Youshui River, which is based on "watershed integration, information sharing, solidarity and collaboration, and joint management of the four counties".

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