Research On Judicial Remedy Of Citizens’ Environmental Rights In The Comparative Perspective Of China And Germany

China’s current "Civil Procedure Law" and "Environmental Protection Law" established the system of civil public interest litigation.In 2015,37 environmental public interest litigation cases were accepted across the country.By 2017,a total of 550 environmental courts have been formed from the Supreme People’s Court to the grassroots courts across the country.In 2015,the NPC Standing Committee authorized the Supreme People’s Procuratorate to launch a pilot program of public prosecutions for public interest litigation and opened a new chapter in the public welfare protection of procuratorial organs.In 2017,the legislature amended the Civil Procedure Law and the Administrative Procedure Law,increasing the prosecutor’s eligibility for prosecution of public interest litigation.However,looking at the process of legislation on environmental public interest litigation in our country,there is only a lack of supervision by environmental protection groups on the administrative acts of the environment that are exerted by administrative organs.Behind the rapid development of environmental civil public interest litigation is the lack of environmental administrative public interest litigation.The environmental law in Germany belongs to the category of administrative law.The environmental group lawsuit in Germany is the environmental administrative public interest lawsuit in our academic context.The development of environmental groups in Germany has always been subject to the influence of traditional German legal theory:For a long period of time,litigation must have the essential requirement that "the subjective right of the obligee be infringed upon".After the constant revision,it gave and expanded the environmental litigation rights of environmental groups in order to achieve its purpose of protecting the environment.In this process,a breakthrough in the theory of protection norms has shifted the litigation of German environmental groups from subjective litigation to objective litigation.This change is both due to the pressure of environmental movement and political greening in Germany over the years,but also due to the transformation of EU law and the series of jurisprudence of the European Court of Justice.Comparing the procedural norms of environmental rights relief between China and Germany,it can be seen that the remedies of environmental rights in China are mainly solved through civil litigation,whether from individual protection of environmental rights or environmental protection of environmental organizations The remedy of environmental rights in Germany is mainly solved through administrative litigation.This article attempts to contrast the Sino-German environmental right remedy method that individuals and environmental groups bring to procuratorial organs,and points out that our country should set up a relief model of environmental rights based on the protection of administrative litigation.This article is divided into four parts.The first part points out the necessity of establishing administrative innovation system and environmental administrative public interest litigation by clarifying the dominant role of administrative power in environmental public affairs and the defects of judicial power.In the second part of the article,we compared the remedies for the encroachment of individual environmental rights in China and Germany.The German law mainly reflects the normative examination initiated by the third person and others without interest in the administrative examination and approval plan.When environmental rights and interests are infringed upon,administrative litigation may be filed against the environmental examination and approval plan made by the administrative organ.The third party here is neither a relative of the administrative examination and approval scheme nor a direct stakeholder of the administrative examination and approval scheme but a third person who may be affected by the administrative examination and approval scheme.At the same time,in Germany,if it involves the issue of environmental infringement,it may,in accordance with the provisions of the civil law,file a civil infringement lawsuit with the ordinary court and request compensation for damages.As for the request for compensation for civil damages,there are also provisions in our Tort Liability Law that the relative responsibility for environmental tort is relatively perfect.However,there is no clear stipulation about whether an individual can take action against the administrative act that has an impact on the environment.Our country’s administrative procedural law does not have a clear stipulation.In practice,such a case has not been accepted by the court either.By analyzing the remedies to the environmental rights of individuals in the German administrative court,it is suggested that the scope of the acceptance of administrative litigation in our country should be clear and the administrative litigation rights should be given to individual environmental rights.The third part compares the similarities and differences between the litigation system of environmental groups in Germany and the environmental civil litigation system in our country in the legislative and judicial practice.In Germany,environmental law belongs to the category of administrative law,so the environmental group lawsuit is the same concept as environmental administrative public interest litigation in our academic context.And our environmental groups can only bring environmental civil public interest litigation.Because both have the participation of social organizations,and environmental groups are plaintiffs as litigants,representing a certain social and public interests,so there is a certain similarity and comparability between the two.Through the analysis of the litigation process and judicial practice of environmental groups in Germany,it is pointed out that our country should set up an environmental administrative public interest litigation system and give environmental groups the right to public administration of environmental administrative rights.The last part introduces the relevant legislation and judicial practice of prosecutorial agencies in China bringing environmental public interest litigation.Procuratorial organs to bring environmental public interest litigation system is an innovative practice of the legislature combined with China’s own national conditions.Two years after the "Pilot Scheme for Public Prosecution Litigation Held by Procuratorial Organs," the legislature amended the Civil Procedure Law and the Administrative Procedure Law,officially giving procuratorial organs the right to bring environmental administrative public interest litigation.This paper suggests that our country should set up a dual mode of procuratorial organs and environmental protection organizations to bring environmental administrative public interest litigation so as to make up for the lack of supervision on the administrative behaviors that exert an influence on the environment by administrative organs.