| Once the environment is damaged,it will be irreversible.The restoration of the environment will not only cost a lot,but also restore the original state.Therefore,prevention in advance should be the first principle of ecological environment protection,as the embodiment of the precautionary principle in litigation,the Precautionary Environmental Public Interest Litigation should become an important form of environmental civil public interest litigation.However,as far as the theoretical and practical circles of our country are concerned,the Preventive Environmental Civil Public Interest Litigation system is a relatively new field,the existence of these problems impedes the function of the system,so this paper explores the way to perfect the system from two aspects: System Structure and system operation.Generally speaking,this article mainly involves five parts,as follows.The first part points out that there are two theoretical bases of the Preventive Environmental Civil Public Interest Litigation System: First,the theory of Risk Society,which states that we are in the Environment Risk Society,the complexity,scale and irreversibility of risk determine that ex ante prevention rather than ex post relief is the best way to deal with risk.The second is the precautionary principle of Environmental Law,which is the first basic principle of environmental law.The precautionary principle of Environmental Law provides legitimacy for the Precautionary Environmental Civil Public Interest Litigation.The theory of Risk Society and the precautionary principle of Environmental Law together constitute the theoretical basis of Preventive Environmental Civil Public Interest Litigation.The second part points out the current situation of the system evolution and practice,and summarizes the predicament of the system in the system construction and system practice.In the evolution of the system,the relevant provisions of the system focused on the new environmental protection law before and after its entry into force,but there was no specific chapter on the system,in the aspect of system practice,although the number of cases accepted by environmental public interest litigation has increased year by year,it is difficult for the system to develop because of different starting conditions,unclear burden of proof and unclear qualification of the plaintiff,however,there are only a few preventive environmental public interest litigation,which is due to the lack of connection between the litigation system and the relevant administrative departments,and the reliance on the traditional tort liability system in the way of undertaking and enforcement,to render it ineffective.The third part points out the way to perfect the construction of the Preventive Environmental Civil Public Interest Litigation System.Firstly,the identification standard of “significant risk” is defined in legislation,and the start-up elements of the system are determined,secondly,the design of the burden of proof is different from the traditional tort system of the burden of proof.The fourth part points out the way to perfect the operation of the Preventive Environmental Civil Public Interest Litigation System,which involves the coordination among various departments,especially the coordination with the environmental administrative departments,so as to give full play to the advantages of all parties,secondly,the follow-up execution and supervision of the litigation needs to be effectively implemented in order to make the litigation system play its role. |
