Study On The Identification Of Serious Risks In Preventive Environmental Civil Public Interest Litigation

Preventive environmental civil public interest litigation is a breakthrough to the traditional litigation concept of "no damage,no remedy" in the background of high environmental risks.With the gradual improvement of the rules of the environmental civil public interest litigation system,such cases have increased significantly.At the same time,the preventive environmental civil public interest litigation system is still in its initial stage,and the number of such cases in judicial practice is particularly scarce.The reason is that although the law provides for preventive environmental civil public interest litigation for the first time,the lack of further regulations on the key elements of serious risk has led to difficulties in the identification of serious risk in judicial practice.In terms of theoretical research,most of the research on preventive environmental civil public interest litigation in environmental law has been conducted from the conceptual lag and procedural problems,and some scholars have noticed the problem of ambiguous connotation and misplaced subject matter in the determination of serious risk,but the connotation of serious risk has not been further sorted out and defined.Therefore,this paper discusses the paper with the help of risk sociology theory,empirical research method and comparative research method,mainly addressing the key issues of "what is risk" and "what is serious".The first part is the introduction,which introduces the "Yunnan Green Peacock Case" and the "Yunnan Oil Refinery Case",and briefly introduces the difficulties in determining the serious risks in judicial decisions.Then the research of our scholars is sorted out and summarized,based on which the innovation of this paper is proposed.The second part discusses the problems of significant risk identification.From both legislative and judicial aspects,it explores the problems of ambiguous connotation of significant risks,inconsistent standards,and lack of identification of topics in practice.The third part is the interpretation of the connotation of serious risk.In this part,the theoretical sources of serious risks,namely the emergence of risk society and environmental risks,are firstly reviewed.Then,the institutional basis for the establishment of serious risks is summarized from domestic and foreign countries respectively.After clarifying the theoretical sources and institutional foundations of serious risk,then define the meaning of serious risk,and discuss that serious risk is a kind of environmental "danger" with a high probability of occurrence.This section focuses on the question of what constitutes risk.The fourth part is to solve the problem of unclear criteria for identifying significant risks.Starting from typical cases,analyze in depth the problems of material risk criteria in judicial practice.The author attempts to propose a specific path to resolve the significant risk standard from the perspective of applying case types to the serious risk standard,introducing value judgments of judges,and applying the measurement principles throughout the serious risk determination.The fifth part is the study of the subject of serious risk determination.This part firstly analyzes the problems of major risk determination subjects from typical cases,and then introduces the system of determining serious risks by administrative and judicial organs in the United States.Finally,proposes suggestions for improving the subject of serious risk determination from three aspects: clarifying the decisive position of the court,respecting the authority of administrative organs,and constructing the participation mechanism of auxiliary subjects.