Article 45 of the Regulations of the People's Republic of China on the Management of Watercourses, promulgated on June 10, 1988, stipulates that in cases where river water conservancy facilities are damaged, the waterway authority has the right to directly order the responsible parties to compensate for the losses. However, the author argues that this provision is problematic, particularly regarding the authority’s role in enforcing such compensation. This article analyzes the application of "ordering compensation for damages" under Article 45, using a specific case as an example.
In the case, a kiln farm illegally excavated a river dike that serves flood control, drought relief, and agricultural irrigation functions, leading to partial slope collapse. To ensure river safety, management units had to close upstream control gates and halt water diversion. They also investigated the illegal act, repaired the damaged infrastructure, and took immediate action against the violator.
The question arises: How can the "order to compensate for loss" in Article 45 be applied in this scenario, specifically regarding the loss of water supply and damage to the dike and other water conservancy structures?
Some argue that during water administrative enforcement, the provisions of Article 45 can be directly applied. When issuing a "Decision on Water Administrative Punishment (Management)," the competent authority should issue a decision to "order compensation for a few dollars." However, the author strongly opposes this view, citing three key reasons.
First, without explicit legal authorization, courts may not support administrative decisions related to civil liability. In a Supreme People's Court ruling, it was clarified that provisions like those in the "Prairie Fire Prevention Regulations" only establish civil liability, not administrative authority. The court emphasized that administrative bodies must have clear legal basis to handle such matters. While Article 45 of the Watercourse Regulations may seem to authorize the river authority, its validity should be questioned in light of more recent laws such as the 2002 amendments to the Water Law.
Second, the power to order compensation involves quasi-judicial functions, including determining loss amounts, assigning responsibility, and evaluating evidence. According to the Legislation Law, such powers should be regulated by law or authorized by the National People's Congress. It is not appropriate for administrative regulations alone to grant such authority.
Third, modern water legislation no longer includes explicit provisions for "compensation for damages." For instance, the Flood Control Law and the New Water Act refer to "civil liability according to law" but do not authorize administrative agencies to directly order compensation. Based on the principle that newer laws prevail over older ones, the current Water Law and Flood Control Law should take precedence over the 1988 Regulations.
Therefore, the author believes that administrative penalties and civil compensation procedures should be kept separate. At the administrative level, the focus should be on stopping illegal acts, taking remedial measures, and imposing fines. For civil compensation, the river management unit should collect evidence, conduct assessments if necessary, and resolve the matter through negotiation, mediation, or litigation.
In conclusion, while Article 45 of the 1988 Regulations may have been valid at the time, its application today requires careful consideration in light of updated legal frameworks and judicial principles.
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