Research On The Proof Of Preventive Environmental Public Interest Litigation

Preventive environmental public interest litigation refers to environmental public interest litigation against conduct that has not been carried out or is being carried out that may cause damage to the ecological environment and endanger the public interest.Preventive environmental public interest litigation is based on environmental public interest litigation,but compared with environmental public interest litigation,the plaintiff of preventive environmental public interest litigation intervenes earlier,and can intervene before the ecological environment is damaged,so the litigation can better achieve the role of preventing environmental risks.Considering the high difficulty,high cost and poor effect of environmental remediation,more attention should be paid to the prevention of environmental risks rather than to post-mortem remediation.In this sense,preventive environmental public interest litigation can better protect green waters and mountains.However,looking at the current judicial situation,we will find that there is such a contradiction: environmental damage is frequent and environmental risks are everywhere,but at a time when environmental problems are so serious,there are only five preventive environmental public interest litigation cases.The contradiction between the huge practical needs and the number of cases received by preventive environmental public interest litigation exposes the shortcomings of the preventive environmental public interest litigation system.Through empirical analysis of environmental disputes,it can be seen that the final outcome of many environmental disputes brought to court is “inadmissibility” because the plaintiff failed to provide preliminary proof that the defendant “polluted the environment and damaged the ecology with a major risk of harming the public interest”.However,the standard of preliminary proof is not stipulated in the law,and the standard of preliminary proof that plaintiffs need to submit in the judiciary is also very different and has no rules to follow.In addition,who should bear the “trial certificate” in preventive environmental public interest litigation and why the standard of proof is still in a legislative vacuum.A comparative analysis of the rules of proof and the standard of proof in the five preventive environmental public interest litigation cases shows that gaps in legislation have led to confusion in judicial decisions.By analyzing the burden of proof adopted by China,the doctrine of the burden of proof adopted by various countries and their systems,it is demonstrated that the “preliminary proof” in China’s preventive environmental public interest litigation should adopt the rule of“who claims,who bears the evidence”,and the “trial proof” should adopt the rule of proof of reversal of the burden of proof.In terms of the standard of proof,based on the existing standard of proof and the successful experience of extraterritorial standard of proof in China,it is concluded that the “preliminary proof” of preventive environmental public interest litigation in China should reach the level of apparent proof,and the “trial certificate” should adopt a high degree of certainty standard.Preventive environmental public interest litigation has the problem of “difficulty of proof”,and one of the functions of the proof method is to reduce the difficulty of proof.Therefore,in terms of proof methods,preventive environmental public interest litigation should improve the probative power of indirect proof methods to reduce the difficulty of proof.