The Study Of Relationship Between China's Environmental Juridical Power And Environmental Administrative Power

Nowadays,China faces grave challenges posed by tightening resource constraints,severe environmental pollution and a deteriorating ecosystem,which have affected people's health,and sustained economic and social development.Ecological conservation was incorporated into balanced economic,political,cultural,social and ecological progress of the cause of socialism with Chinese characteristics by the 18~thh National Party Congress,as China seeks to root out the trend of ecological deterioration,build a beautiful China and attain sustainable growth of the Chinese nation.In accordance with China's Constitution and Environmental Protection Law,China has formed a power pattern with supreme legislative power,and labor division and cooperation between Administrative power and judicial power.After China enacted laws that set environmental protection as a basic state policy,administrative and judicial branches should work in cooperation with a due division of labor to enforce it.To ensure that the goal of environmental protection can be effectively achieved,the administrative and judicial branches concerned with environmental protection are required to exercise their powers in accordance with laws.That is,the administrative power and judicial power can be effectively exercised within the law,and fulfill their own duty to forge a sound relationship.Since enacting the Environmental Protection Law(Trial)in 1979,China has formed an environmental legal system,which takes the Constitution as a guideline,comprehensive basic environmental law as its core,the pollution prevention and control law,nature and resources protection law,material circulation management law,environmental liability law and other laws as its contents.The rapid increase of the number of laws and the deteriorating environment is a prominent phenomenon in China's efforts to protect the environment under the rule of law.Pushing ahead with the sound enforcement of the Environmental Protection Law and sublimating"ruled by law"into"rule of law"is actually the top task of current study of the environmental law.As for the environmental rule of law,so far there's no commonly recognized concept.Regarding the relationship between the environmental administrative power and the environmental judicial power,scholars did not explore in depth the strengthen comparison and interactive mechanism of these two powers,the proper power structure between them and what relationship should be kept between them at the macro level.The relationship status between the environmental administrative power and the environmental judicial power in local enforcement was also not deeply studied by scholars.With regard to specific strategies to effectively control the environmental administrative power and the environmental judicial power,studies of scholars mainly focused on determining strategies following the discussion of relationship between the two powers in concrete environmental lawsuits.The key proposition of this dissertation is how to properly handle the relationship between the environmental administrative power and the environmental judicial power under the rule of law.The three concepts which were environmental rule of law,environmental administrative power and environmental judicial power,involved in this dissertation were defined;the concept,goal and basic elements of the environmental rule of law were analyzed;the concept,features and basic components of environmental administrative power were analyzed;the concept,feature and basic components of environmental judicial power were analyzed.Problems existed in the relationship between China's environmental administrative power and environmental judicial power were analyzed.Problems between these two powers were unveiled via describing the relationship between them in three dimensions which were constitutional pattern,local governance and environmental lawsuits.The problems between the environmental administrative power and environmental judicial power in terms of the organization form of the powers,interactive relationship and power structure under China's Constitution were described and analyzed.Description and analysis were conducted on the problems between the environmental administrative power and environmental judicial power under two special situations which were local protectionism and maintaining stability against the backdrop of local governance.The problems between the environmental administrative power and environmental judicial power in China's environmental lawsuits were described and analyzed.The general development trend of China's environmental administrative power and environmental judicial power was analyzed.The causes of problems existed in the relationship between administrative power and environmental judicial power were analyzed.The causes of the incomplete constitutional layout in China were analyzed.The analysis showed that it was mainly because the relationship between and layout of the administrative power and judicial power were impacted by multiple factors,and the environmental administrative power was in a dominant position under the notion of the omnipotent government,hence,the administrative power had an overwhelming impact on environment and resources legislation.The imperfect local governance mechanism in China was primarily due to the narrow regional interest notion and insufficient local governance capability.The incomplete proceeding power control was mainly because the environmental lawsuits were lack of special litigation proceedings,judicial system tended to be administrative,and eagerness to ensure fairness in individual cases.The relationships between the administrative power and the judicial power in other countries were analyzed to find common nature for the sake of providing best practice to position the relationship between China's environmental administrative power and environmental judicial power.With respect to the development of the national power relationship of the continental law system,the development experience of France and Germany was focused on,while concerning that of Anglo American law system,the development experience of the Great Britain and the United States was mainly introduced.On the basis of this,the experience of national power relationship of these two law systems that can be learned was analyzed and induced.The positioning of relationship between China's environmental administrative power and environmental judicial power was analyzed.The functions of the two were compared under the order of the environmental rule of law,multiple value dimensions and the goal of the environmental rule of law to find the proper relation between these two powers.The relationship of these two powers formed under the order of the environmental rule of law was positioned via analyzing conditions for the formulation of the environmental rule of law and roles played by the environmental administrative power and the environmental judicial power.The relationship of these two powers under multiple value dimensions was positioned by analyzing the roles of these two powers under three value dimensions which were justice,freedom and efficiency.The relationship of these two powers under the goal of the environmental rule of law was positioned through analyzing their roles in the implementation system,supervision system and guarantee system of the environmental rule of law.The relationship between the environmental administrative power and the environmental judicial power was restructured.The restructuring of regime and judicial power was mainly conducted through reasonable constitutional layout,which was made possible via restoring Constitution by setting constrains on powers and giving priority to the management of the revision of Constitution.The institutional reform of the environmental administrative power and the environmental judicial power under the background of local governance was mainly achieved through mutual restriction and mutual cooperation between these two by reforming the environmental regulation and law enforcement system,and the environmental judicial system.The proceeding control of the environmental administrative power and the environmental judicial power was positioned by analyzing the possibility to conduct such control and conducting special proceeding control on these two powers.