Article 45 of the Regulations on the Management of Watercourses of the People's Republic of China, issued on June 10, 1988, stipulates that in cases where river water conservancy facilities are damaged, the waterway authority has the power to directly order the responsible parties to compensate for the losses. However, the author argues that this provision is problematic, as it may not align with modern legal frameworks and administrative procedures.
To illustrate this, consider a case where a kiln farm illegally excavates a river dike that serves flood control, drought relief, and agricultural irrigation functions, causing parts of the slope protection to collapse. In response, river management units must close upstream control gates and suspend water diversion to ensure safety. They also need to investigate the illegal activity, repair the damaged infrastructure, and hold the responsible party accountable.
The question arises: How can Article 45 be directly applied in this case to address the loss of water supply and the damage to the dike and other water conservancy projects? Some argue that during water administrative enforcement, the provisions of Article 45 can be directly used, and a decision to "order compensation for losses" can be included in the "Decision on Water Administrative Punishment (Management)."
However, the author strongly opposes this view, offering three main reasons:
First, without explicit legal authorization, such administrative decisions may not be supported by courts in litigation. For example, in a Supreme People’s Court ruling regarding whether an employer could be held jointly liable for a grassland fire, it was clarified that civil liability should be addressed through civil channels, not administrative ones. The court emphasized that administrative authorities must have clear legal basis to handle civil matters. Similarly, while Article 45 of the Watercourse Regulations may appear to authorize compensation, its validity is questionable in light of subsequent laws like the 2002 amended Water Law.
Second, the power to order compensation involves quasi-judicial functions, including determining loss amounts, assigning responsibility, and verifying evidence. These matters should be governed by law or authorized by the National People’s Congress, not left to administrative regulations. According to the Legislation Law, basic civil systems and judicial procedures require legislative regulation, not administrative discretion.
Third, recent water legislation does not include provisions for "compensation for damages." For instance, the Flood Control Law and the updated Water Law use expressions such as "assume civil liability according to law," but they do not explicitly authorize water administrative departments to issue compensation orders. Based on the principle that new laws prevail over old ones, and higher-level laws override lower-level ones, current water laws do not support the application of Article 45 for direct compensation decisions.
Therefore, the author suggests that administrative penalties and civil compensation should be handled separately. At the administrative level, penalties such as fines and remedial measures should be imposed in accordance with water administrative punishment procedures. Civil compensation, on the other hand, should be resolved through evidence collection, expert assessment, and either mediation or civil litigation.
In conclusion, while Article 45 of the 1988 Watercourse Regulations allows for direct compensation orders, its applicability is increasingly contested due to evolving legal standards and the lack of clear statutory authorization. It is essential to distinguish between administrative enforcement and civil liability, ensuring that each is handled within the appropriate legal framework.
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