Research On Preventive Environmental Civil Public Interest Litigation

Under the industrial civilization,all kinds of uncertain,unrecognizable and inevitable potential damages are being gestated in various fields.We are already in a risk society,and ecological environment risk is an important manifestation.Once the ecological environment is destroyed,it is difficult to repair or extremely difficult to repair,and the traditional rule of law can not be avoided.From the principle of prevention to the principle of risk prevention,new environmental protection concepts have given birth to new systems.Under the guidance of protection first and prevention first,the preventive relief system for the ecological environment has been gradually established.The norms require that the maintenance of the ecological environment is the obligation of every citizen,society and relevant organizations.It is reflected in the coordination of administrative power and judicial power in the public power department,appropriately breaking through the original power barrier,and taking the protection of public interests as the sole purpose.The preventive environmental civil public interest litigation system is an important system of judicial relief for environmental protection in China.It is a part of the system of laws and regulations for ecological environment protection.Its role needs the support of relevant systems.With the continuous deepening of the legislation of the environmental law department,the preventive environmental civil public interest litigation system has been established.At the same time,the interpretation materials have been further expanded and the application space has been widened.Due to the nature of administrative power,the administrative protection of ecological environment reflects the characteristics of high efficiency,strong professionalism and diversified relief methods.It is still the main path to realize the principle of risk prevention in the field of ecological environment.The concreteness,negotiability and non finality of the results of preventive environmental civil public interest litigation require the "administrative complementarity" of its power in the field of environmental protection,which is embodied in functionalism and breaks through the neutrality and passivity of the judicial power.Through the evolution of the system,it can be seen that the preventive environmental civil public interest litigation system inevitably carries the remedy gene of the tort law,and the interpretation and application cannot break through the remedy logic of the tort law.If the environmental protection right is recognized,in the post Civil Code era,the negative power of the environmental right as an absolute right and the way of bearing responsibility in the preventive environmental civil public interest litigation are competing in reality.Although the preventive environmental civil public interest litigation system accounts for a very low proportion in the total number of environmental law departments,it can not be denied that it poses structural challenges to the traditional legal thinking such as the relationship between administrative power and judicial power,the logic of direct protection of private interests in civil litigation and compensation for infringement damage.If the crisis is not solved in theory,the evasion of the system practice application by all parties will be normalized.The identification of major risks is the premise of initiating litigation,which needs to be prudently applied through legal interpretation.The way of assuming preventive responsibility only needs to consider its meaning,and there is no need to nest it by legal concepts.In the process of the operation of the preventive environmental civil public interest litigation system,there are many problems such as the narrow scope of the subject,the gaps in the protection of public interests,and the ambiguity of the major risk identification rules.The narrow scope of the subject is related to the current allocation of judicial resources,and the solution of the problem must be systematized and linked.The public interest of the ecological environment is relatively special,and the potential of damage is high.Under the existing scientific and technological knowledge,it is required to use the platform of civil justice to coordinate all parties to gather the administrative coercive force,the judgment of experts,the observation of the public and other advantageous elements to reasonably and legitimately divide and stop disputes,thus reflecting the scientific and democratic protection of public interest.In the identification of risks,the scope and degree of prevention should be fully considered.It is necessary to comprehensively consider the cost of prevention of hazards,the probability of occurrence of hazards,the consequences of damage caused,the value conflict between the basic rights protected,and other factors,establish the specific risk identification standard of preventive civil public interest litigation,and skillfully use the principle of proportionality to solve disputes while maintaining the public interest.At present,the substantive norms of the preventive environmental relief system are vague and the procedural norms are missing,which leads to very limited protection for the ecological environment.Exploring new systems is also the common task of all parties in the future for a long time.