Research On Institutional Guarantee Of Environmental Right

The environmental right is the basic right that has nature of human rights, include rich Content and value. In the right attribute, the infringement way, the damage pattern, the relief way and so on, are very different with the traditional right. Environmental degradation, ecological protection and the lack of departmental law in the protection of the rights, make it stepped into the research field of constitutional law gradually. Developed countries make the protection of citizens’ environmental rights in a complete legal operating system that based on the effectiveness of the constitution, The theoretical research and the practice of the constitution, the judicial practice relies on each other and Mutual promotion. But for a long time, China as a deeply influenced by the concept of power, Focus on collective interests, neglect individual rights in society, the environmental rights of citizens are undoubtedly marginalized. In recent years, the rise of environmental events, Tensions between state organs and citizens triggered by environmental events, prompt people to think about the institutional roots of their production, thinking on the relationship between civil rights and state power.In the practice of constitutional law in China, The relationship between state power and civil rights is a major issue concerning the effectiveness of the Constitution. The basic right of citizens is not directly effective, in the operation of the national public authority has not yet formed the effective mechanism of the right to restrict the power, make corruption and abuse of power very easy. Respect the constitution, implement the Constitution through the Constitutional interpretation, regulate the public power to serve the basic rights of citizens in the framework of the rule of law, gradually forming the institutional mechanisms of the right to restrict the power, Is the only way for the state of the rule of law. So, In order to Promote the national strategy of governing the country in accordance with the Constitution, Promote the implementation of the constitution text, In this paper, Institutional Guarantee of Environmental Right is selected as the research topic. The purpose of this study includes three aspects, firstly, provide institutional solutions for realize environmental rights of citizens; secondly, provide the path to the realization of the basic rights of citizens that base on the respect the text of the Constitution; thirdly, support the constitutional theory for the process of the rule of law in the country.First, analyze the development of academic background on the institutional Guarantee theory, explain its essential connotation. The Weimar constitutional period, it mean that the core content of system in the Constitution can not be changed by legislation, the system has the characteristics of the Constitution and the first deposit, The system of the constitution to be protected is not intended to protect the basic rights. The implication of it is to limit the legislative power. Basic law period, it developed into the theory of institutional freedom, the constitutional rank system gain effectiveness as the basic rights, the system or the right of the Constitution stipulates that it is both a system and a right, through the system protection to protect rights, there is no corresponding system, there is no basic right. Moreover, it furthered the generation of the objective value order theory of the basic rights. From the perspective of theory development, their function is gradually consistent. That is intended to emphasize national legislation, administrative, judicial practice on the protection of the basic rights of citizens. The constitutional interpretation method established by the theory of institutional guarantee, promote the implementation of constitution text in backward country by law. Meanwhile, from a higher level, the concept which is taken from it, is a guide for the process of rule of law in the country, provides the constitutional theory for the realization of the basic rights of citizens and the development of the rule of law.Second, analyze the nature of environmental right and the current situation of protection of our country deeply. By analyzing the attribute of environmental right and the constitution of various countries to protect the environmental right, it is concluded that it should be the basic right, belong to the category of social rights. But in the development of our country, formed the conception of respect power, pay attention to the collective interests, ignore, neglect, dilute the individual rights. This influence the rule of law deeply,form a single dimensional paradigm in environmental field by government power. In the absence of power restriction, the exercise of environmental power will deviate from the environmental right protection. A large number of facts have proved that the lack of limiting environmental power has become the barrier in operation of environmental legal.Third, explain the relationship between the institutional guarantee and the construction of the rule of law. Although the theory of institutional guarantee is the result of the evolution, but the developing countries can draw lessons from it. Through the empirical analysis of Japan and Taiwan region of China, The method of the constitutional interpretation in it, provide the foundation of constitutional norms for the system or the rights that Constitution not proclaimed in writing, thus making it possible to provide a constitutional protection. The meaning is to promote the implementation of Constitutional environmental clause and further implementation of the constitutional text through the interpretation of the constitution.Fourth, research on how to construct the institutional guarantee of environmental right in our country. The environmental constitution is determined through the analysis of the constitutional text. The system, the right, the principle established by the environmental protection clause of Constitution become the basis of the country to fulfill the obligations of environmental legal system construction, as a Constitutional Commission. At the same time, the environmental constitution clause is used as a criterion to examine the performance of the obligations of environmental law system of country. The environmental rights of citizens can not be infringed upon by the exercise of legislative power. Fundamentally speaking, at present, the main body of legislative power in our country is also the subject of legislative supervision, which is a kind of internal self supervision mechanism, external supervision is lack. Therefore, select the review system which has the characteristics of the right to supervise power to be explained, in aspects of the review process, the scope of review, review standards and other aspects, put innovative ideas that based on the existing system. The law that is rough, does not conform to the standards of environmental rule, against the value of environmental constitution, should be examined. Eliminate the evil law, bad law, stupid law emerged fundamentally.Fifth, the realization of citizen’s environmental right can not be separated from the effective operation of the national judicial system. In this paper, we select the environmental administrative litigation which contains the right to supervise the power to analyze. Although the judiciary is still taking the idea of restraint, but the justice has been invisible to promote the implementation of the Constitution, because the justice is active and in line with laws of evolution. Because the attribute of environmental right is different from the traditional right, stake and legitimate interests should be extended interpretation in environmental administrative litigation, endow citizens the right to appeal in environmental field, and then expand the scope of the case of environmental administrative litigation. Not only respect and protect the Civil right of action which in constitution, but also to promote the environmental rights of citizens to exercise supervision and restraint on power. Moreover, gradually expand the scope of judicial review of environmental administrative proceedings.In summary, this paper take the relationship between the state and the citizen as the main line, with the protection of citizen’s environmental right, take the transition period of the legal system of our country as the background, the realization of the strategy of governing the country by constitution as expect, reflecting the defects and causes of the environmental rights security system in China. Analyze the development of the theory of institutional guarantee, clear the idea of Constitutional theory and Constitutional interpretation path in it, move forward the rule of law approach that base on respect the constitutional text and interpretation of constitution. Institutional mechanism of the reality of citizen’s environmental right is supported by the theory of constitutional theory and Constitutional environmental clause.