On The Construction Of Environmental Civil Public Interest Litigation In China

According to the different litigation objects and claims,environmental public interest litigation can be divided into environmental civil public interest litigation and environmental administrative public interest litigation.Based on this division,environmental public interest litigation is currently incorporated into the system of civil procedure law and administrative procedure law in China for legislation.This "dichotomy" model is significant in legislative technology and research,but it should not ignore the uniqueness of environmental public interest litigation.Environmental civil public interest litigation is a kind of civil liability that citizens,social organizations and state organs authorized by law bring a lawsuit to the court when the ecological environment is damaged or dangerous,and require the responsible person to bear such civil liabilities as stopping the infringement,removing the obstruction,eliminating the danger,restoring the original state,compensating for the loss,making an apology and so on.Through the connotation of environmental civil public interest litigation,we can see that it has different characteristics from the traditional civil litigation,first of all,it is related to environmental public interest,while the traditional civil litigation is about private interest litigation;second,its litigants include individuals,social organizations,state organs and other litigation subjects of different natures,and the relationship between the parties is different from the traditional civil litigation;third,Its litigation motive mechanism is different from the traditional civil litigation;fourthly,the environmental civil public interest litigation has various forms,and the traditional civil litigation is a dispute between equal subjects,comparatively speaking,its relationship between the parties is more complex.In addition,the disputes faced by environmental civil public interest litigation are very different from those of traditional civil litigation.The disputes solved by the former are actually disputes between the unspecified majority and the defendant,and the opposition between the plaintiff and the defendant is usually not as good as the latter.Because of the above characteristics of environmental civil public interest litigation,its litigation purpose,litigation function and the relationship and status of the parties involved in the litigation(including the court)are different from the traditional civil litigation,which inevitably leads to the incompatibility between its litigation structure and the traditional civil litigation.First of all,environmental civil public interest litigation has changed the teleology that determines the traditional civil litigation.The litigation purpose of environmental civil public interest litigation is public interest protection.This litigation purpose is public,which requires it to play a social function,and the social function can not be achieved through the maintenance of private interests,which determines that the environmental civil public interest litigation can achieve its system purpose only through the active exercise of judicial power.Secondly,the basis of the disposal principle and debate principle in the traditional civil litigation is the rule of private autonomy,but the environmental civil public interest litigation lacks the rule of private autonomy.The interests involved in the environmental civil public interest litigation are not private interests.The plaintiff is the representative of the public interest,but not the owner of the public interest.Therefore,the freedom of the parties to dispose of the litigation interests should be limited,which leads to the failure of the principles of disposal and debate in the environmental civil public interest litigation.Thirdly,environmental civil public interest litigation lacks the power mechanism of traditional civil litigation.Whether it is the principle of punishment or the principle of debate,its operation needs to be driven by sufficient litigant motivation.As the plaintiff of environmental civil public interest litigation is not the direct owner of the litigation interests,and the result of the litigation is not directly borne by the plaintiff,therefore,the plaintiff lacks the economic rational motivation to launch and promote the litigation,and the motivation generated by relying on ecological rationality is very limited,which is not enough to support the principle of debate and disposal at present.Based on the above reasons,the structure of environmental civil public interest litigation should belong to authority dominant litigation model in general.If all the entities and procedural matters of civil public interest litigation are controlled by the court,it will also make the court lose its neutral position beyond the limit of public power,and then make the judicature change into administration.Therefore,authority dominant litigation model of environmental civil public interest litigation should be limited.First of all,it should be clear that environmental civil public interest litigation is a kind of litigation procedure rather than non litigation procedure,which should follow the law of litigation.Therefore,the structure of environmental civil public interest litigation should meet the requirements of due process,which mainly includes two aspects: the first is that the judge can not be the judge of his own case,and the second is that the opinions of the parties are fully heard.This requires the court to be neutral in environmental civil public interest litigation,and the parties should participate equally.From this point of view,the court’s initiative in environmental civil public interest litigation should be based on the principle of moderation,not beyond the necessary limits,so the court should exercise its judicial power relatively independently.The judicial power should not completely control the entity and procedural matters in the litigation.The amendment of the principle of debate and the principle of disposition should be limited in the environmental civil public interest litigation.Therefore,the environmental civil public interest litigation should encourage and guide the parties’ positive disposition and confrontation.The court should not simply deny the improper disposition,but establish a cooperative dialogue mechanism.Through the active exercise of judicial power,the court should build a platform for full dialogue between the parties and guide the normal disposition.The specific structure of environmental civil public interest litigation will ultimately be implemented in the relationship and status of all parties involved in the litigation(including the court).First of all,with regard to the status and order of litigation among social organizations,procuratorial organs and administrative organs,social organizations should be given the priority to file lawsuits;secondly,with regard to the relationship and status between administrative organs and courts,the boundary between public interest litigation and environmental administration should be clarified,and the function of environmental civil litigation should be supplementary administration rather than substitute administration,so only Only when the problem can not be solved by administration can the government bring a lawsuit of compensation for ecological environment damage.Thirdly,on the status and relationship between the procuratorial organ and the court,it should be clear that the procuratorial organ is to file environmental civil public interest litigation based on the identity of the supervisor,and the granting of its litigation rights should be based on the power of legal supervision,which can not replace the environmental administrative management.Therefore,the disposal behavior of the procuratorial organ and the conditions for filing the litigation should be subject to necessary restrictions.Fourthly,as for the relationship and status between social organizations and the court,the disposal power of social organizations should be strictly limited,but their active action of debate and confrontation should be encouraged and guided.Their disposal behavior is a kind of active participation in litigation,which can not be completely prohibited.As for their disposal behavior for the purpose of public welfare protection,the court should play an active role to introduce it Guide.Finally,on the relationship and status of the plaintiff and the defendant,we should uphold the concept of equal participation in litigation,pay attention to substantive equality,and uphold the concept of the neutrality of judicial power.The court should not regard itself as the environmental public welfare protector in the process of handling specific cases.For the problem of unequal strength of the parties,the court should actively exercise its power to make up for the lack of litigation ability of the weak parties.According to the structure of environmental civil public interest litigation proposed above,there are many problems in the current system and practice of environmental civil public interest litigation in China.First of all,the setting of the subject status and the order of litigation is unreasonable.At present,the litigation conditions and claims for ecological environmental damage compensation are too loose for the government,so that the government can choose to perform the environmental supervision duties for the same environmental public welfare damage event,or choose to file a lawsuit,which leads to two sets of governance mechanisms with overlapping functions,which may cause the duty between state organs Unclear responsibilities and inefficient environmental governance.Secondly,China’s current environmental civil public interest litigation system ignores the construction of litigation incentive mechanism,and the social public has insufficient motivation to bring environmental civil public interest litigation,which is difficult to achieve the functions that environmental civil public interest litigation should have.Thirdly,on the relationship between judicial power and litigation power,judicial power is too active and tends to change from judicial power to administrative power.In addition,on the relationship and status between the plaintiff and the defendant,the current environmental public interest litigation system tends to ignore the litigation status of the defendant.The operation purpose of the trial authority is positioned to protect the environmental public interest,which makes the trial authority stand in the same position with the plaintiff.In addition,the defendant’s position is generally weak,and the evidence rules are unfavorable to the defendant,resulting in the imbalance of the plaintiff and the defendant’s position.The deep-seated reason for the above problems in the current environmental civil public interest litigation in China is the deviation of function setting.The exercise of the judge’s authority is not to assist and urge the environmental administration,but to replace the environmental administration,so that the relationship between the court and the defendant is between management and being managed.Further analysis shows that this kind of function setting is inevitable.At present,the public lacks enough motivation to support the litigation structure,and can only rely on public motivation to promote the operation of litigation.However,the original intention of setting up environmental civil public interest litigation is to mobilize the power of the public to supervise environmental law enforcement,and to fill the deficiency of law enforcement.The key problem is that in environmental civil public interest litigation involving other people’s interests,the public lacks the power based on economic rationality.In this case,they can only turn to seek external power support from public power,which leads to The variation of the structure of environmental civil public interest litigation.Therefore,the lack of social public litigation motivation is the root of the existing problems in the construction of environmental civil public interest litigation.Based on the above analysis,the path to improve the construction of environmental civil public interest litigation in China is necessarily to continue to build the social public litigation motivation → correct the litigation function → adjust the status and relationship of all parties involved in the litigation.