The Research On Judicial Review Of Decisions Of EIA Report

In 1979 “The Environmental Protection law of the People's Republic of China(for Trial Implementation)"formally established the system of environmental impact assessment,“The Environmental Impact Assessment Act” in 2002 stipulate environmental impact assessment including planning and construction projects of environmental impact assessment.Today,the legislation of environmental impact assessment has been improved,but the controversies on environmental impact assessment are escalating.Because the standpoint and attitudes of the environmental department deal with things,many projects passed the EIA procedure,but the result don't convince the public.the public often questioned the justice and professionalism of the EIA report.The operation of EIA review has appeared gap with the original design purpose.Environmental impact assessment must solve realistic need.In the long term,one solution to this problem depends on legislation.But Legislative changes take a long time;the revised law can not effectively solve the case of dispute.Relatively,the judicial system can effectively solve the EIA case dispute and achieve the goal of maintenance EIA value.It is the inevitable to supervision the approval authority of environmental impact assessment report through judicial review in order to the environmental rule of law in our country.In terms of interpretation methods,the court should give full play to its independent initiative and use multiple interpretation methods to actively resolve the application of the uncertain legal concepts in the eia report review decisions.The paper analysis the path of the judicial review of environmental impact assessment report conclusion,with comparative research methods.This paper is divided into five chapters.In the first chapter discusses mainly the basic theory of the judicial review of the approval authority of environmental impact assessment report.In the chapter firstly introduction to relevant theories the review of EIA report,including the connotation of the environmental impact assessment?the body of the decision with environmental impact assessment and the legal effect.The EIA report is the important written representations of the EIA 'procedures and contents.it provide the reference for the decision makers about development and implementation of the project;There are single and plural authorities on the review of environmental impact assessment report;the legal effect of the environmental impact assessment divided into procedural and administrative act on the basis of substantive legal effect for the construction project.Secondly,it analyzes the review the types of EIA report,which is divided into planning and construction projects of environmental impact assessment.They differ in subject,procedure,content and effectiveness.The last part discuss the connotation of the judicial review of environmental impact assessment report conclusion.The judicial review of environmental impact assessment report conclusion is different from general administrative litigation.it is caused by environmental disputes and has wide scope of parties,strong professional and technical characteristics.The paper made realistic analyse of instituting proceedings,qualification of plaintiff,examination standard,examination content on the judicial review of environmental impact assessment report conclusion.There are four major functions including promoting the realization of the goal of administrative rule of law and the implementation of the eia review process,ensuring the realization of citizens' environmental rights,reconciling values in the environmental impact assessment in order to effectively resolve the EIA dispute.The second chapter,It analyzes the feasibility to initiate proceedings of the conclusion of the EIA report.Firstly the paper discusses the nature and the feasibility to initiate proceedings of the conclusion of the construction project's EIA report.The conclusion of the construction project's EIA report is an independent administrative act.it can institute administrative proceedings.Secondly,the paper discusses the nature and the feasibility to initiate proceedings of the conclusion of the planning project's EIA report.There are three different theories including internal procedure act?external administration act?abstract administration act on the nature of the conclusion of the c planning project's EIA report.The author thinks that the nature of the conclusion of the planning project's EIA report is quasi-administrative act and can initiate proceedings for the conclusion of the planning project's EIA report.The last it can bring a preventive administrative action for the conclusion of the planning project's EIA report and analyze the feasibility and necessity of preventive administrative action.In third chapter,the paper analyzes the qualification of plaintiffs for judicial review about the review'decision of EIA report.There is no dispute to initiate proceedings of the conclusion of the EIA report.Firstly the paper empirical analysis the qualification of plaintiffs for judicial review about the review'decision of the construction project's EIA report and point out that the litigant is mainly interested party.But the courts hold different views about the qualification of plaintiffs of interested party.Secondly,the paper discusses obstacles and mitigation about the qualification of plaintiffs for judicial review about the review'decision of planning project's EIA report.The author thinks that the theory of interest should be adopted on the qualification of plaintiffs for judicial review about the review'decision of planning project's EIA report.The last the paper suggested that the theory of protective norms should be introduced to define the plaintiff's qualificationThe fourth chapter,It analyzes the concept of judicial review the conclusion of the EIA report.This paper points out the particularity of the review'decision of EIA report based on the analysis of relevant cases.Firstly the paper propose the court should undertake a comprehensive review on review principle,if the legal concept is not specified as a legal issue;If there is no certainty that the legal concept and administrative fact are entwined and corroborated.If uncertain legal concepts and administrative facts are intertwined and corroborated.the court should not be constrained to explain the legal concept,it should actively explain the fact-finding problem involved in the uncertain law;In terms of interpretation methods,the court should give full play to its independent initiative and use multiple interpretation methods to actively resolve the application of the uncertain legal concepts in the eia report review decisions.In the judgment method,the court should adopt process review,including subjective judgment,process judgment and related records and evidence judgment.Secondly,the paper discusses professional issues in the review decision of the eia report.At the theoretical level,the judicial power should adjust the power interaction in the process of eia review.At the technical level,we should reasonably grasp the intensity of judicial review.At the institutional level,special judicial organs should be set up to improve the ranks of judges and experts.The last the paper suggested that it advocates the application of interest measurement method on related interest issues in the eia report review decisions.The five chapter,It analyzes the program of judicial review the conclusion of the EIA report.This part points out that the public participation procedure of eia report review is the focus of the judicial review based on the empirical analysis.However,due to the "flexibility" and interchangeability of the regulations of eia participation mode in China's eia law,the court usually only examines the legitimacy of the form,but does not involve in the exercise of the discretion of the public participation mode in terms of the examination standard and intensity;the review currently adopted by the court for the review and decision procedure of eia report is an ex post facto result review,which obviously does not reflect the due status of the value of the procedure in terms of the result of the review;the paper points out that the intensity of review should be strengthened and strict examination standards should be adopted.The violation of public procedural rights in the eia process should be revoked.It is not difficult for the country to make laws,regulations and policies.It is difficult for the law to be followed.In order to change the phenomenon that environmental law is a soft law,we must comply with the law,enforce the law,strictly and punish those who violate the law in order to give full play to the deterrent effect of the law.General Secretary Xi Jinping put forward the idea of "using the strictest system and the strictest rule of law" to lay a solid institutional guarantee for the construction of ecological civilization.That is to say,the rule of law should play a leading and normative role in the construction of ecological civilization,taking the rule of law as the junction point,equilibrium point and contact point between economic development and ecological protection.So as to realize the organic integration of economic and ecological benefits.Along with the advancement of ecological civilization construction and the improvement of citizens' rights consciousness,a large number of legal issues may produce,if so,the justice should give full play to the "guarantor" role,safeguard the people's environmental right to know,to participate and to supervise,so as to response to public higher expectations of good ecological environment.