The Study On Procuratorate Supervise The Environmental Regulation Power

In recent years, with rapid economic and social development in china, environmental violations emerge in an endless stream, which seriously damages to the natural environment and people’s health. In fact, illegal operation of environmental regulation power is the most important reason fot environmental violations emerge repeated, so strengthening the power supervision to safeguard the legal operation of environmental regulation power has become a basic way to solve the environmental problem. However, many scholars are still controversial about the intension and extension of environment regulation power and its difference with environmental administrative power, environmental management power, which influences the construction of power supervision system."Legal concept is the knot to understand and express the law." Legal concept is the foundation of law enforcement, also is the premise of academic research.The author takes "supervision" as a starting point, clarifies its intension and extension from economics, politics, law. Then the environmental regulation power is defined as environmental regulation organ to protect and promote environment, according to the law, regulates the various acts or matters that may have adverse effects on the environment. This concept embodies the idea of government intervention in economic law, is beneficial to the system coordination of legal concept. It also has greater advantages than environmental administrative power or environmental management power.In western countries, according to Montesquieu’s "separation of the three powers" theory, build the national power, through the way of keeping legislative power, administrative power, judicial power in balance mutually to achieve the purpose of power supervision. China, according to Marx’s theory of the people’s representative organ, build National People’s Congress, which achieves the combination of legislature and administration. So in china’s national power structure, the legislative power is in the first position, any other power is derived by the legislative power, so the procuratorate took the constitutional mission to supervise power’s operation, in order to ensure observance of laws unification and correct. Therefore, in china’s national power structure, procuratorate is the best subject to supervise the operation of environmental regulation power. However, procuratorate’s implementation is a procedural supervision, not directly replace the environmental regulation organ to make any substantive decision, so it is beneficial to achieve a balance between power supervision and professional regulation. Moreover, according to the system theory, the environmental regulation system embedded in the procuratorial supervision mechanism that plays the information system function, promote the whole environmental regulation system to evolve into a feedback coupling system in higher level. Therefore, this system can effectively solve the problem of limited rationality, power rent seeking in regulatory process, improve the law enforcement level of environmental regulation organ, strengthen legislative supervision ability of legislature. At the same time, because of the dependence of citizen’s environmental right on environmental regulation power, power supervision can safeguard the human rights.From a comparative law perspective, it is usual in many countries that procuratorate supervises the environmental regulation power. For example, the United States, Germany and other environmental legal developed countries have established relatively complete supervision mechanism to supervise the environment regulation power. The procuratorate in U.S., supervise respectively environmental regulation behavior and law action of the EPA. Then, the Justice of Department set up Environmental Crime Agency (ECS) as full-time institutions to cope with environmental cases, the exercise litigation filed, exhortation and case review, moreover establish communications, supervision and cooperation mechanism within the whole country, in order to integrate the procuratorial supervision resources. The Brazil’s procuratorate in the federal and state level, establish special orgnaization to cope with environmental infringement cases, and supervise the environmental regulation power by the environmental public interest litigation, administrative investigation and the procedure of administrative law enforcement. The Russia grant lots of environmental rights to citizens, such as the right to know of environmental information, right to participate in decision-making, also grant lots of power to procuratorate, such as the prosecution of illegal administrative act, elimination power of illegal act, in order to supervise the the environmental regulation power in multiple ways.The Germany grant public identity to procurator, so they can take part in litigation to supervise environmental regulation organ, and help the court detect and enforce law."It mountain of stone, could besiege jade." These way, means, mechanism that procuratorate supervise the environmental regulation power can provide high-quality reference samples to our country.The procuratorial legal supervision power is a comprehensive, integrated power beam. Therefore, we should base on China’s political structure, learn useful experience from the western countries. Then, we also should give full play to unique effect of the legal supervision internal power, and construct the diversified power supervision mode according to the different operation of environmental regulation power, namely through procuratorial investigation power, administrative public prosecution power and procuratorial suggestion power to construct the supervision system on environmental regulation power. The Procuratorial investigation power whose target is the operation of environmental regulation power, in order to obtain information and evidence of environmental law enforcement, is an important component of legal supervision power, and has the distinctive property of the legal supervision. It also is the conditions that other two power exercise correctly. As a kind of structural power, the creation of procuratorial investigation power is beneficial to avoid the environmental regulatory risk, and improve structure of the whole law supervision power, then builds the efficient operation platform of procuratorial investigation power through the mechanism of involvement in advance, connection between the administrative law enforcement and the criminal justice, and information disclosure and communication.The litigation practice shows the method that the legal supervision power is treated as public interest litigation power, supporting prosecution power, litigation participation power,or administrative objection power has many disadvantage such as lack of power, limited effect of supervision. It means that this method is not the best way to supervise the environmental regulation power. Baseing on the constitutional status and nature of procuratorate, administrative public prosecution power as an effective means of supervision is the direct conversion of legal supervision power. Cooperating with the jurisdiction of the court, it becomes an complete supervision system about environmental regulation power. Therefore, environment administrative public prosecution definites the authority source and legal status of procuratorate, then clarifies the relationship with environment public interest litigation, environment administrative public interest litigation. In my view, environment administrative public prosecution should follow the basic principles such as public interest, modesty, set up case file monitoring and pretrial supervision program, affirm causal relationship more rational, expand the scope of judgment, establish preventive type of litigation, perfect the burden of proof and the settlement of action mechanism, so as to improve the quality and efficiency of the procuratorial supervision.The procuratorial suggestion power as a "soft power", is also an important component of legal supervision power. By virtue of comprehensive scope and flexible method, the procuratorial suggestion power has unique advantages and value, and is beneficial to achieve coordination between power supervision and professional supervision. Based on the empirical analysis about environment procuratorial proposals in Zhejiang province, we know that the environment procuratorial proposals obtain remarkable result in regulating environmental regulation power. However, the environment procuratorial proposals also have some problem such as its the ambiguous legal status, inadequate force, and imperfect procedure. Recently, many Standing Committee of the Provincial People’s Congress issues some resolution (decision) on strengthening the procuratorial legal supervision, which improves the force and standardization of environment procuratorial proposals. However, in the long run, it is very important to push the legislation of procuratorial proposals, clarify its position and nature, improve the duplicates, tracking, reply mechanisms in order to strengthen the force of proposal, and perfect its subject, procedure, format, content. Besides we shoud also grant supervisory organ the procedure to remedy.In the long run, the method that procuratorate supervise the environmental regulation power is a useful exploration to supervise the whole administrative power, which is beneficial to carry forward the governm ent by Law, improve the constitutional structure, and promote the environmental rights.