Study On The Public Rights System Of Environmental Risk Precaution

Environmental risk is an important issue that cannot be ignored in modern society.In order to regulate environmental risk,modern society has established a series of risk precaution legal systems involving the protection of private interests and public interests based on the principle of risk precaution,including private law litigation and administrative regulation.However,the construction of China’s risk precaution system lacks the support of basic rights theory,and the risk precaution governance system lacks co-governance between the government and the public.To perfect the legal system of environmental risk precaution in China,it is necessary to rethink the relationship between the rights and obligations of individuals and the state in the process of risk precaution,and to explore a set of theoretical frameworks of public rights that adjust the relationship between individuals and the state.There are two basic paths for environmental risk precaution: the private interest path and the public interest path.The private interest path and the eco-environmental damage compensation system have limitations in theoretical foundations and judicial practice.As a result,the public interest path has a better effect.To prevent environmental risks through public law,it is necessary to build a public rights system for environmental risk precaution based on public rights theory.Public rights come from the German public rights theory."Basic public rights-functional public rights" is one of the basic structures of public rights.The basic public right embodies the basic legal relationship between the individual and the state.The functional public right embodies the different capabilities that citizens enjoy based on the basic public rights;the basic public rights is the basis of the functional public rights which is serve the basic public rights.The basic public law rights include freedom rights,social rights and participation rights.The functional public law rights include the rights of dominion,the rights of formation,the rights of defence,and the rights of claim.The public law of claim is the core of the functional public rights among them.The public rights system of environmental risks precaution is composed of basic public rights and functional public rights.According to the legal relationships between individuals and countries,the basic public rights system for environmental risk precaution includes environmental risk precaution freedom,environmental risk precaution social rights and environmental risk precaution participation rights,which can be divided into environmental risk freedom of expression,environmental health rights,The right to environmental sharing,the right to know environmental information and the right to participate in environmental decision-making.Since the role of the rights of dominion,formation and claim in the precaution of environmental risks is very limited,the functional public rights system for environmental risk precaution should be constructed with the right of public law claims as the core.The environmental risk precaution public law claims include environmental risk defense claims and environmental risk benefit claims,analysed from the perspective of functional system.The environmental risk defense claims can be divided into the right to request for freedom of expression,the right to request for minimum risk standards,the right to request for fair risk allocation,the right to request for information and the right to request for participation.The environmental risk benefit claims can be divided into the right of remedy and the right of compensation.