| It can be seen from the trials of typical cases such as the Sichuan Wuxiaoye Maple Case and the Yunnan Green Peacock Case that there are problems such as difficulty in coping with potential risks,disorderly judicial application,and unclear external boundaries of liability in environmental civil public interest litigation,which to a large extent limit the effective play of the preventive function of environmental public interest litigation,and there are many deficiencies in the prevention of environmental risks,posing new challenges to the judicial protection of environmental legal interests and social public interests.The reason for this lies in the fact that the internal contradictions of different ways of assuming preventive responsibilities and the external conflicts between preventive responsibilities,remedial responsibilities and administrative preventive measures need to be addressed and resolved.Due to the small types of statutory preventive liability and the single type,it is difficult to deal with potential environmental risks,and it is necessary to create risk management and control liability from environmental judicial practice.As a unique environmental legal liability,it has both administrative liability and civil liability,which is different from the preventive civil liability methods such as stopping infringement,removing obstacles,and eliminating dangers stipulated in the Civil Code,and is expected to be stipulated in the future liability part of the Ecological and Environmental Code.On the basis of distinguishing between danger and risk,the principle of hazard prevention and the principle of risk prevention,the use of typed legal thinking is used to simply divide the types of preventive liability assumptions,and clarify the applicable objects,application order and applicable rules of risk exclusion liability and risk prevention liability.Adopt appropriate legal interpretation methods to reasonably interpret the specific ways of assuming preventive liability,clarify that the liability for danger exclusion can be judged instead of performance,and the judgment on environmental protection prohibition orders and stop infringement are essentially the same.Distinguish different applicable situations and do a good job in the comprehensive application of preventive liability and remedial liability,so as to realize that the preventive function and the remedial function of environmental civil public interest litigation complement each other.On the basis of ensuring the freedom of public interest representatives to sue and choose the path of rights protection,maintain judicial modesty,follow the basic principle of administrative priority,effectively resolve the conflict between environmental justice rights and environmental administrative rights,and realize the parallel and orderly connection of the dual-track system of preventive responsibility and administrative preventive measures. |
