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

Preventive environmental civil public interest litigation means that social organizations bring lawsuits against environmental pollution and ecological destructions with significant risks of damaging environmental public interests,and intervene in time before the damage results occur.So as to better realize the preventive function of environmental public interest litigation and promote the transformation of environmental justice from damage relief to risk prevention.Significant risk identification means that the judicial organ makes legal judgment on whether it constitutes a significant risk.However,significant risk is an uncertain concept,which is not clearly defined by law.Moreover,there are some problems in the identification of significant risks,such as identification subject,proof rules,identification standards and guarantee system.Difficulties in identifying significant risks have become an important factor in the small number of cases and long trial time in judicial practice.The purpose of this paper is to improve the identification of significant risks through literature research and case analysis,so as to promote the development of preventive environmental civil public interest litigation.This paper is divided into four chapters.The first chapter expounds the connotation and value of preventive environmental civil public interest litigation,as well as the theoretical understanding and significance of significant risks.By analyzing the meaning of "prevention"and comparing it with relief environmental civil public interest litigation,the connotation of preventive environmental civil public interest litigation is further clarified.This paper discusses its value in effectively regulating environmental risks,realizing preventive functions and defending citizens’ environmental rights.There are three aspects to understand the significant risk:essence,object and degree.This paper probes into the significance of the identification of significant risks in dealing with the risk society,realizing the preventive responsibility of environmental civil public interest litigation,and implementing the precautionary principle in litigation procedures.The second chapter combs the current situation of legislation and judicature.At present,the relevant laws and judicial interpretations are insufficient,which hinders the development of the system.Through the analysis of four typical cases:Acer pentaphyllum case,Yunnan oil refining case,Yunnan green peacock case and Huilongshan hydropower station construction case,it is found that significant risk identification is the main focus of controversy,and environmental impact assessment is an important basis for identification.The third chapter summarizes the problems existing in the identification of significant risks.Specifically,it includes:Firstly,the judicial organs rely on the results of administrative identification,which makes the administrative organs misplaced and become the subject of significant risk identification;Secondly,the distribution of burden of proof and the standard of proof of significant risks are unclear;Thirdly,the legal basis for the identification standard of significant risks is insufficient,and most of them rely on discretion;Fourthly,the environmental expert witness system,environmental risk assessment system are not perfect.The fourth chapter puts forward some suggestions on the improvement of significant risk identification.Specifically,it includes:Firstly,the identification of significant risks belongs to judicial judgment,which should be led by the identification of judicial organs and assisted by the identification of administrative organs and experts;Secondly,the burden of proof should be transferred to balance the burden of both parties,and value judgment should be introduced to assist identification;Thirdly,according to the environmental pollution risk and ecological destruction risk,the standards for identifying significant risks should be summarized respectively;Fourthly,improve the two systems in a targeted manner to provide better guarantee for the identification of significant risks.