Dilemma And Countermeasures Of Environmental Public Interest Litigation

Human civilization has advanced at an incredible pace,amassing substantial material wealth for the public,but the resulting concomitant organisms--environmental pollution--have increasingly eroded and destroyed the homes of all people.In the process of dealing with the environmental damage and pollution arising in endlessly,the relevant departments usually only give the responsible unit or the relevant responsible person the investigation of administrative or criminal responsibility.However,the civil loss of the environmental interests of the public is often ignored or intentionally ignored.Although the environmental protection law,which was revised in 2014 and implemented in 2015,extends the focus of the subject qualification of environmental public interest litigation to relevant social organizations,the natural person qualification that has been discussed and expected by the academic community has not been included in the scope of subject of litigation.This paper mainly studies the dilemma of public interest litigation under the current environmental public interest litigation system,and discusses the corresponding measures.Compared with the traditional general civil disputes,the characteristics of environmental public interest litigation are characterized by extensive coverage,functional prevention and imbalance of power between the parties in litigation.It originated from many legal theories such as public trust,private attorney general and environmental right.Article 55 of China’s civil procedure law,revised and implemented in August 2012,marks the first time that environmental public interest litigation has been included in the law.To some extent,it is a milestone event,which is a breakthrough in the construction of public interest litigation system.Subsequently,in article 58 of the new environmental protection law enacted and implemented in 2015,the qualification of the subject of environmental public interest litigation is confirmed,providing solid and powerful legislative support and guarantee for the environmental public interest litigation system.But the author believes that environmental public interest litigation plaintiff qualification is too harsh restrictions,the supreme people’s court on the application of law in civil environmental public interest litigation cases to explain some issues of the type of the plaintiff qualification is more qualified to "above city-level","specially engaged in the mouth","five years in a row" with specific keywords such as organization,direct limit and deprived as individual civil environmental public interest litigation filed a ly.In foreign countries,such as the United States and India of the Anglo-American legal system,it is clear that citizens themselves are qualified to Sue in the form of legal provisions.In the United States,the Clean Air Act of the 1970 s provided for civil litigation,and environmental protection was an important part of the public participation system.With the advancement of judicial practice,even the qualification of prosecution is granted not only to natural persons,but also to animals,forests and lakes.Environmental public interest litigation in India consists of individuals and voluntary organizations with a public heart or spirit.Comparatively speaking,the environmental public interest litigation system of continental law is more conservative than that of common law.As a representative of the continental law system,Germany applies the environmental group litigation system in the country.In combination with the national conditions,Japan has promoted the abolishment of litigation system and the people’s litigation system.However,with the increasing number of environmental public hazards like minamata disease and asthma in siri city,Japan has become more and more relaxed in terms of the limitation of citizens’ individual prosecution qualification.The existing defects of China’s environmental public interest litigation system are highlighted in four aspects.First,relevant laws and regulations are not perfect.Although a legal system of environmental protection consisting of the constitution,individual laws and departmental laws has been initially constructed,procedural laws are relatively backward.In particular,due to the complexity of public interest litigation,a litigation case often implicates multiple types of litigation,making it difficult to resolve environmental disputes in a timely and effective manner.Secondly,the litigation qualification of the plaintiff is excessively limited.In order to better protect the public interest,the author thinks that the plaintiff’s litigation qualification and conditions should be appropriately expanded.Thirdly,administrative organs control executive power and often interfere unreasonably with judicial power of judicial organs.In real life,big polluters such as chemical industry,power generation,coal and cement are also big taxpayers supporting local economy,which can be said to be of great importance.Therefore,in order to protect economic benefits,local governments not only connive at the environmental pollution of these large enterprises,but also use administrative power to shelter these enterprises.Finally,at present,the judicial environment is not ideal or sound enough,and the environmental pollution has the characteristics of delayed,latent and long-term,especially the pollution behavior that has not directly affected the citizen’s property or the right to health.It is very difficult to collect and prove the evidence.The local environmental protection departments usually settle with a fine due to economic interests and other factors,which cannot fundamentally solve the problem of environmental pollution.Administrative law enforcement departments and judicial organs each manage their own "one mu three parts",can not form a three-dimensional comprehensive interactive judicial law enforcement system.In view of the above deficiencies,the author puts forward solutions and Suggestions from the aspects of the qualification of public interest litigant subject,procedural guarantee mechanism,professional case hearing mechanism and environmental protection fund system based on the national conditions and judicial environment as well as my own learning and working practice.On the subject qualification of litigation,the author thinks that the law should permit and confirm that most natural persons can bring public interest litigation under certain conditions.Of course,in order to prevent the predictable abuse of litigation,to reduce the pressure of the grassroots people’s court to accept the case,to limit more than 20 natural people appropriate,the introduction of representative litigation.Encouraging natural persons who are enthusiastic about public interest to participate in litigation can effectively guarantee the fairness of litigation,improve citizens’ awareness of environmental public interest protection,reduce citizens’ dissatisfaction with government organs,judicial organs and even the whole society due to lack of access to litigation,maintain social stability,and ensure the steady progress of judicial environment and judicial system.On the procedural safeguard mechanism,it is suggested to implement the special limitation mechanism,which is not subject to the three-year limitation of civil action.Due to the long-term and concealed nature of environmental pollution,which is greatly different from the general civil cases,the limitation of environmental public interest litigation should be appropriately relaxed based on the need to effectively protect public interests and investigate environmental violations.The manner in which environmental pollution shall be borne shall be extended,and the court may order the losing party to be liable for stopping the infringement,restoring the original status and eliminating the impact,and to impose penalties including punitive damages and environmental damages.In terms of the professional case hearing mechanism,it is suggested to set up a special environmental trial institution,or even refer to the Shanghai financial court just set up in August 2018 to set up a cross-provincial and cross-regional full-time court.Different from setting up financial courts due to the huge number of cases,the reason for the establishment of public interest litigation courts is that there are few cases in different regions.Once established,the problems of "large but complete,small but complete",empty establishment of institutions,waste of resources and improvement of efficiency can be solved.By optimizing the environmental protection fund system,social organizations can be exempted from the concern of insufficient funds and effectively promoted and encouraged to fight against environmental pollution enterprises with legal weapons.At the same time,a certain percentage of the fine of the environmental public interest case should be taken as litigation fund,or collected and supplemented by means of social donation and welfare lottery earnings.In addition,the assessment fee,attorney agency fee,investigation fee and other related fees required for public interest litigation should be included in the support scope of environmental protection fund.