The Dilemma And Perfection Of Preventive On Environmental Civil Public Interest Litigation In China

Ulrich Beck believes that modern society is a risk society,and the advanced high technology in modern society brings convenience to people’s lives,but also updates the manifestation of environmental risks.The environmental risks of modern society have deeply affected the structure of contemporary society in both the time dimension and the space dimension.Environmental risks have not only manifested in environmental pollution and ecological damage,but have been transformed into a wide range of social risks,thus affecting the actions of society.The regulation of risk and the pursuit of safety are the eternal propositions of human society."Technological optimists" believe that modern risks are caused by modern technology and will inevitably be solved by the development of technology.However,the proposal of the "Jevons Paradox" broke this illusion.The environmental problem has developed into an institutional problem,and the law should respond to this,which is reflected in the risk regulation function of environmental law.expansion.our country’s environmental law has begun to construct a preventive environmental protection legal system from a preventive concept to a preventive system.The "Environmental Protection Law" revised in 2014 clearly stipulates the basic principle of "prevention first".Under this principle,the Supreme People’s Court has officially established a Judicial interpretation,which establish the foundation.From the perspective of procedural law,it provides an institutional guarantee for the implementation of the basic principle of "prevention first".However,this construction of the system has just started,and the relevant legal provisions are still dominated by declarative clauses.Regulations are still lacking.It is also plagued by "tort thinking".So,this system should be improved to build an environmental protection legal system and protecting environment.This article is divided into four parts:The first part: discusses the theoretical basis.Firstly,defined the two aspects of the concept,and then fixed it from the Ulrich Beck’s "risk society" theory and Luhmann’s "system theory".Then,starting from the two theories of "risk society" and "system theory",it analyzes the value of preventive this system at the present stage.The second part: from the perspective of legislation and judiciary,it sorts out the problems existing in my country’s current preventive environmental public interest litigation system.The first is the legislative level.Although the interpretation stipulates the system by the Supreme Court,but,the environmental protection legal system surrounded by "declarative" clauses.The regulations are few and scattered among different legal normative documents.The incomplete and scattered legal provisions hinder the development of the system.The second is the judicial level.This paper selects three cases of “China Environmental Protection Federation v.Dezhou Jinghua Group Zhenhua Co.,Ltd.Air Pollution Liability Civil Public Interest Litigation Case”,“Petro China Yunnan Petrochemical Refining Case”,and “Green Peacock Habitat Protection Case”.A representative case,it sorts out the problems existed,and we believe that the judges are shackled by "tort thinking",and lacks the right to claim,the Confusing of burden of proof,and "major risks" the single way of assuming responsibility.The third part: from mainly environmental litigation systems,such as environmental citizen litigation in the United States,environmental group public interest litigation in Germany,and environmental rights litigation in Japan,analyzes the experience that can be used for reference.The fourth part: make suggestions for the system.First of all,establish the principle of risk prevention,and to appropriately limit the principle from the perspective of cost-benefit theory,the court should throw "tort" thinking when adjudicating cases;secondly,identification "major risks" and the standards for initiating litigation;thirdly,clarify the rules of proof and the litigation of proofs;in the end,analyzed the problems of "injunction preservation",and make suggestions.