Research On The Identification Of "Significant Risks" In Preventive Environmental Civil Public Interest Litigation

Preventive environmental civil public interest litigation is the embodiment of the preventive value,which is fundamentally different from the remedial one in that the former does not require the acts involved to cause substantial environmental damage,and aims to prevent the occurrence of ecological and environmental damage,which is a proven judicial relief system to curb the great threat posed by environmental risks.The current legislation of the litigation in China is unsatisfactory,and most of the relevant laws and regulations are mainly principled and general,which is difficult to provide normative support for the practice,making it difficult for the litigation to perform its expected function in practice.Article 1 of the Interpretation of Several Issues Concerning the Application of Law to the Trial of Environmental Civil Public Interest Litigation Cases in 2015 stipulates that the authorities and relevant organizations as stipulated in the law may initiate lawsuits against environmental pollution and ecological damage that have harmed social public interests or have a "significant risks" of harming social public interests.This is the first time that a preventive environmental civil public interest lawsuit can be filed.However,the judicial interpretation does not provide specific guidelines for the determination of "significant risks",which has led to differences in judicial practice regarding the specific meaning of "significant risks",the subject of determination of "significant risks" and the burden of proof of"significant risks".By solving the above-mentioned problems in the determination of "significant risks",we can largely alleviate the dilemma of the litigation in practice and bring into play the risks prevention function of environmental civil public interest litigation,so as to nip the serious and irreversible environmental pollution,ecological damage,wildlife extinction and other environmental problems at the risks stage.This paper seeks to clarify the specific meaning of "risks" in "significant risks" in the litigation,and to clarify the degree of "significant risks" in "significant risks",so as to enhance the effectiveness of litigation.This paper seeks to clarify the specific meaning of"risks" in "significant risks" and the degree of "significant risks" in "significant risks" to enhance the operability of the litigation process.To correct the "significant risks" judicial determination of the misplaced authority of the chaos,measuring the interests of both parties.According to the ability of the plaintiff and the defendant to prove,the burden of proving"significant risks" is reasonably distributed between the two parties.In order to successfully complete the task of proof,the article aims to promote the effective operation of the China’s litigation and realize its proper value of risks prevention.The article consists of five main parts:The first part provides an overview of the litigation.The first part is to explain and introduce the connotation,characteristics and theoretical basis of it.and to clarify the advantages of the litigation as a judicial means to prevent environmental risks in China,compared with legislative and administrative means,so as to lay the foundation for the following study on the determination of "significant risks" in the litigation.The second part of the study focuses on the connotation of "risks" in the China’s litigation.The second part of the study is to clarify the basic connotation of risks and environmental risks,and to analyze the relationship between "risks" and environmental risks in the litigation on this basis."The essence of "risks" is environmental risks.The environmental risks can be classified according to the cause of the risks.the object of the risks.and the possibility of transforming into substantial damage.and the "isks" of "significant risks" belong to "human-induced environmental risks","ecological environmental risks" and"environmental hazards",so as to clarify the "risks" of "major risks".The third part discusses the degree of "significant" in the "significant risks".The current legislation in China lacks provisions on the degree of "materiality",and there are obstacles to the judgment of "materiality" in practice."Therefore,there is a need to improve the judgment factors of "significant",such as establishing an environmental risks identification and evaluation system,incorporating environmental carrying capacity into the consideration.adopting the results of administrative organs,and promoting preventive measures.The fourth part of the paper focuses on the establishment of a group of guiding cases for the litigation.The fourth part of the paper focuses on the determination of "significant risks".In practice,there are many parties who tend to judge whether and to what extent the environmental risks is induced by the act in question,among which the contradiction between the judicial power of the court and the administrative power of the administrative organ is particularly prominent,resulting in the misalignment of the main body in practice.It should be clarified that the court has the independent judicial power to determine the "significant risks",and at the same time,it should also pay attention to the auxiliary role of other subjects in the determination of "significant risks".The fifth part of the study is about the responsibility of proving "significant risks".In practice,there is no rule for the allocation of the burden of proof between them.In addition,a single standard of proof is applied in practice,ignoring the special nature of the litigation.Based on the properties and characteristics of the litigation,it is more appropriate to apply the rule of presumption of causation in the allocation of burden of proof,but based on the special nature of environmental risks,value judgment should also be introduced to balance the interests of the parties and coordinate the sustainable development of economy and society.As for the standard of proof,the litigation should not copy and apply the standard of proof of traditional civil litigation,but should apply different standards of proof for different objects of proof,taking into account the proof ability of the plaintiff and the defendant.