Study On The Action Preservation System In Environmental Justice

The environmental damage caused by ecological destruction or environmental tort has the characteristics of sustainability,diffusion and latent,so it is difficult to repair the pollution of environmental elements and the degradation of ecological function.The judge relies on the conclusion of judicial expertise to determine the damage consequence and causality,so the rigidity and lag of the environmental judicial procedure make it difficult to meet the urgent need of the parties’ rights in time.It is difficult to repair the environmental damage and the infringer cannot afford the huge damages judgment,so there is the objective problem of "difficult to execute" in the environmental justice.Therefore,it is necessary to introduce the action preservation system in the environmental justice to solve these problems.In 2012,China’s Civil procedure Law established a new action preservation system,but careless legislation led to the lack of operability in judicial practice.The local courts and scholars have explored the perfection of the standard of application and the way of hearing.At present,there are many problems in the action preservation system in China,such as unclear functional orientation of act preservation,vague applicable standard,single trial method and unreasonable relief measures,etc.The intermediate injunction system in US and the false sanction system in Germany play a similar role with the action preservation.In judicial practice,the United States has established the standard of examining four elements,unified the applicable standard of temporary injunction,and prescribed the procedure of issuing preliminary injunction,so that the two parties can form a full confrontation.Germany adopts the two-stage examination standard to decide whether to make a false disposition decision.The definition of the applicable standards of temporary relief measures,the rationalization of trial methods and the perfection of relief procedures matching with trial methods in extraterritorial judicial practice have provided us with experience for reference in perfecting the action preservation system in China.The first prerequisite of perfecting the action preservation system is to define the function orientation,which is the core of the applicable standards.The action preservation aims at avoiding the occurrence or enlargement of the damage and undertaking the preventive right protection function.The applicable standards of action preservation are unified,and the judge is given a certain degree of discretion.Liability insurance of action preservation is a legal way of security,which can lighten the burden of creditors and fully protect the interests of the debtor.Pre-action preservation adopts the way of hearing unilateral interrogation and the procedure design of hearing in court,which balances the contradiction between the timely relief of the rights of the parties and the principle of right procedure.The rationalization of preservation objection procedure and revocation procedure has perfected the relief procedure of action preservation.The identification standard of error application is constructed.The liability for the error application is defined as the liability for tort damages,and the principle of fault liability is clearly defined.On the basis of combing the situation that the action preservation application needs to bear the liability for compensation,the subjective error of the applicant is judged according to the principle of interest measurement and the theory of the possibility of foresight.