Research On Application Of Inquisitorial-system Of Environmental Public Interest Litigation In China

This paper first introduces the concept and category of inquisitorial-system.This paper analyzes the legitimacy of applying Inquisitorial-system in environmental public interest litigation in China from three aspects: objective,means and result.At the same time,it also investigates the expansion of the application of Inquisitorial-system in China’s environmental public interest litigation,reflects on the adverse consequences of the expansion,and analyzes the reasons for the expansion.On this basis,the article puts forward some ideas on the application of limited inquisitorial-system.And from the two dimensions of the judge’s authority and the procedure rule,the author puts forward the scheme to optimize the application of the inquisitorial-system in the environmental public interest litigation in China.In addition to the introduction and conclusion,the full text is divided into six chapters:The first chapter is about the concept and category of inquisitorial-system doctrine.Authority is a kind of institutional power based on position.Authority,position and responsibility are of one trinity.The forms of authority include line,staff and function.The semantic development of "inquisitorial-system" has roughly gone through three historical stages.Its original meaning is "to explore" and "to investigate" the truth.In the modern sense,the inquisitorial-system is a legal principle and application of due process which seeks for substantial fairness and justice by strengthening the instrumental application of the power of judges,including value,structure and function.The basic category of the inquisitorial-system includes the doctrine of the conduct of authority,the doctrine of the exploration of authority and the doctrine of the interference of authority.The general trend of the application of inquisitorial-system in the three traditional litigation modes in China is that it is weakening as a litigation mode and its favorable factors still play an important role.The second chapter is how to embody the legitimacy of inquisitorial-system in environmental public interest litigation.In the public interest,the basic concepts such as ecological law benefit under the premise of environmental public interest litigation in the functions and powers doctrine justification lies in the purpose of protecting the environment public interest,the trust protection of public environmental welfare,intergenerational protection,protection of rights and obligations theory for environmental public interest litigation in the application of the functions and powers doctrine provides moral foundation and idea guidance;In the environmental public interest litigation,the legitimacy of the method of authority lies in the improvement of the private interest litigation mechanism according to the purpose of protecting the public interest,including the purpose of litigation,the nature of litigation,the litigation mechanism,the litigation legal relationship,etc.The result legitimacy of applying inquisitorial-system in environmental public interest litigation is embodied in resolving the internal structural tension of specific litigation power.Therefore,the legitimacy of applying Inquisitorial-system in environmental public interest litigation lies in improving the litigation mechanism for the purpose of protecting environmental public interest and realizing the effect of eliminating the internal structural tension of specific litigation power.The third chapter is the status quo,problems and reflection of the expansion of authority in environmental public interest litigation.Environmental public interest litigation in our country present a binary inquisitorial-system in the expansion state of reality,that is,from static system and dynamic observation of the practical level,China’s environmental public interest litigation in the functions and powers doctrine has appeared the trend of expansion,the expansion in connect with each other,the interaction of two dimensions,namely the "double functions and powers of judges and prosecutors intervention".The expansion of inquisitorial-system may lead to the extreme of inquisitorial-system,the administration of environmental public interest litigation,the aggravation of judicial uncertainty,and the insufficient protection of ecological legal interests.The second is the absence of the restriction factor of inquisitorial-system,including the absence of internal restriction factor and microscopic restriction factor.The fourth chapter is how to limit the inquisitorial-system in environmental public interest litigation in China to overcome the adverse consequences of expansion.First,functional orientation should be carried out by the inquisitorial-system.It is easy for structured inquisitorial-system to cause various risks and adverse consequences in public interest litigation,and the emphasis on the value of inquisitorial-system is too abstract to solve the specific problems encountered in reality,so functional orientation becomes the inevitable choice for applying Inquisitorial-system.Functional Inquisitorial-system emphasizes the beneficial effect of the method of Inquisitorial-system on the litigation mechanism and how to play this beneficial effect most effectively.The functional inquisitorial-system in environmental public interest litigation has the characteristics of duality,multi-layer and four-dimensional relativism.The functional orientation of functional Inquisitorial-system is not single,but dual.In the aspect of the horizontal relationship between participants in the litigation,the doctrine of functional authority emphasizes the role of authority to different degrees according to the relative status of the status of litigation and the imbalance of ability to achieve the rebalancing of the four-dimensional litigation structure.In the aspect of promoting the vertical process of litigation procedure,it emphasizes the relative adjustment of the intensity and precision of authority intervention and intervention according to the changes of different litigation stages and conditions.The relative variables of functional inquisitorial-system mainly include the degree of interest association,the type of claim right and the ability to implement litigation.In addition,we should strengthen the restriction factors of inquisitorial-system from the aspects of judicial initiative,judgment thinking and application principle.Therefore,the inquisitorial-system should reflect the law of action of the subjective and objective initiative of judicial activities and be restricted by it.The inquisitorial-system should be combined with the special judgment thinking and the typified judgment thinking in the environmental public interest litigation.The application of the inquisitorial-system should follow the principle of statutory authority,the principle of due process,the principle of proportion,the principle of efficiency and the principle of retention of authority.The fifth chapter is how to optimize the application of inquisitorial-system in environmental public interest litigation in China.In terms of power interventionism,we should keep proper modesty and optimize the power of interpretation.In terms of the exercise of functions and powers,it is necessary to give full play to the active role of the judge’s litigation command to promote the proceedings and improve the efficiency of the proceedings.In terms of the authority exploration doctrine,it is necessary to hold a modest attitude towards the judge’s investigative power to balance the judge’s over-biased position in the environmental public interest litigation.The optimization of the way of exercising the judge’s functions and powers includes:perfect the way of exercising the judge’s functions and powers in the two aspects of staff and function;In our judicial practice,the optimization of the way of exercising the quasi-powers of the judge should be based on the risk control.The optimization of the power control mode of judges is to establish the separate control mode including the participation of procurators,lawyers and the public.The sixth chapter is how to optimize the application of inquisitorial-system in environmental public interest litigation in China.It is the basic horizontal technical route to realize the multi-dimensional rebalancing of the litigation structure through the doctrine of function and authority.The basic vertical technical route is to construct and improve the rules for the exercise of authority by stages,nodes and precision in the litigation process,so as to realize the precise regulation of the applicable form of authority.In environmental public interest litigation,the improvement of the applicable rules of Inquisitorial-system should follow the "general + special" thinking,the thinking from practice and the thinking in line with the trend of judicial reform.In terms of the application intensity of inquisitorial-system,the application rules of inquisitorial-system in China’s environmental public interest litigation procedure should form an overall framework of "strong at both ends and weak in the middle".Therefore,the specific rules in different stages,such as pre-litigation,pre-court,court hearing,post-court judgment and execution,reflect different degrees of initiative or modesty in the aspects of power exploration doctrine,power conduct doctrine and power interference doctrine.In special cases such as incidental environmental public interest litigation,Marine environmental public interest litigation and environmental administrative public interest non-litigation execution procedure,the application of inquisitorial-system should be changed according to the characteristics of different procedures.