On The Exercise Of Defensive Claim In Environmental Litigation

In recent years,environmental accidents have been frequent,which is worrying.The occurrence of environmental accidents not only infringes on private rights and interests,but also infringes public interests.How to prevent and recover environmental damage should be one of the most important tasks in the field of contemporary environmental tort liability law.In order to meet the growing needs of the people in a better environment,the need for environmental justice has completed the transformation from post filling doctrine to pre preventive.In addition to the environmental impact assessment system,environmental planning system,environmental monitoring system and other preventive measures,the judicial system,as the last defense line,can effectively prevent the occurrence of environmental damage by putting forward the relevant litigation request including the preventive liability in environmental litigation.Environmental litigation is not completely equivalent to environmental justice.Environmental justice refers to the special activities of the people’s court and the people’s Procuratorate in dealing with cases in accordance with the statutory functions and powers and legal procedures.It includes two aspects:Environmental trial and environmental prosecution.Among them,the environmental trial refers to the people’s court’s trial and judgment of administrative,civil and criminal cases involving environmental pollution and ecological damage in accordance with legal procedures,This paper focuses on the part of environmental justice,namely environmental litigation.According to the different ways of environmental trial,environmental litigation can be divided into environmental administrative litigation,environmental civil litigation and environmental criminal litigation;according to the different subjects of environmental litigation,it can be divided into environmental private interest litigation and environmental public interest litigation,and environmental public interest litigation can be divided into environmental civil public interest litigation and environmental administrative public interest litigation;as well as the nature of the ecological environment damage that still has many controversies Compensation litigation.Defensive claim is mainly applicable to the field of civil tort,so the environmental litigation in this paper refers to environmental civil litigation,including environmental private interest litigation and environmental civil public interest litigation in environmental public interest litigation.It is generally said in Chinese academic circles that the relief claim of stopping infringement,removing obstruction and eliminating danger is called defensive claim.The concept of defensive claim comes from article 1004 of German civil code.The defensive claim in German civil code includes two kinds of claims:the right to exclude obstruction and the right to prevent obstruction.The claim of exclusion of nuisance in German Civil Code originated from the denial action in Roman law,while the claim of prevention of nuisance came from Germanic law Later,according to the idea of servitude protection in Roman law,the claim of exclusion of nuisance,the claim of prevention of nuisance and the claim of return of property gradually merged to form the system of claim on property.After that,under the influence of freedom right and pandeckton School of law,the original real right defense claim gradually developed to the protection of other rights,that is,the emergence of the defensive claim in tort law.Throughout the world,the use of defensive claim in environmental litigation is worthy of our reflection and reference.In view of some problems existing in the exercise of defensive claim in environmental litigation in our country,this paper focuses on the relevant theories and practices of foreign developed countries on these problems.It can be found that some countries have formed a relatively complete theoretical system and are doing some research in some areas It is worth learning from the law,Based on the current judicial practice and the research results of previous scholars,this paper uses the methods of hermeneutics,comparative analysis,literature research and case analysis to study and analyze the defensive claim in China’s environmental litigation.Specifically,it is divided into the following parts:The first part is an overview of defensive claims.This part first introduces the general theory of defensive claim,including the meaning and characteristics of defensive claim.Then it analyzes the specific content of the exercise of defensive claim in environmental litigation,including the subject of exercise and the type of defensive claim.In addition,it briefly sorts out the definition of defensive claim in environmental litigation Finally,it concludes that the exercise of defensive claim is of great significance in environmental litigation.The second part is the study of the problems existing in the exercise of the defensive claim in China’s environmental litigation.This part mainly analyzes the judicial data published by China judicial document network and the Supreme People’s court,combined with several typical cases published by the supreme law,and combined with the pilot experience of environmental protection injunction,tries to find out the specific problems existing in the exercise of defensive claim in China’s environmental litigation,and analyzes the reasons for the problems.The third part is to investigate and draw lessons from the exercise of the right of defensive claim in environmental litigation.This part mainly investigates the relevant theories and practices of several representative countries in the common law system and the civil law system,and finds out the advanced experience that may be worthy of our country’s practical application in environmental litigation from the aspects of the scope of the subject of the exercise of the right of defensive claim,the prohibition order and the standard of the determination of the facts of the case.The fourth part is to ensure the realization of the purpose of the exercise of defensive claim in China’s environmental litigation.According to the specific problems found in the second part and combined with the foreign experience of the third part,this part gives suggestions from five aspects:the scope of the subject of the exercise of the defensive claim,the applicable standards,the specific types,the enforcement of the effective judgment and the connection with the environmental administrative preventive measures,so as to ensure the realization of the purpose of the exercise of the defensive claim.It is true that ensuring the realization of the purpose of defensive claim in environmental litigation can not change the current situation of emphasizing filling and neglecting prevention in China’s environmental justice,but it is of great significance to strengthen the preventive function in the development of tort law and implement the preventive principle of environmental law.