Research On Preventive Environmental Civil Public Interest Litigation

While human beings enjoy the gift of nature’s resources,unreasonable exploitation has also caused irreversible ecological and environmental damage,which will eventually threaten the life,health and living environment of all human beings.For a long time in the past,the focus of environmental civil public interest litigation has been on the post-event filling of ecological and environmental damage,but not on the preventive judicial remedy for environmental public interest.Once ecological damage occurs,it is difficult to repair it completely,and preventive judicial remedy is the inevitable way to prevent the spread of environmental risks and protect the public interest.In fact,the priority value of environmental protection lies in the prevention of risk beforehand,not in the compensation of damage afterwards.If we can advance the time of judicial intervention to the time of ecological damage,we can achieve the goal of protecting ecological environment from the source and achieve the best effect of "prevention before it happens".Therefore,environmental civil public interest litigation should have the dual value of prevention and remedy afterwards,and the realization of the value of prevention should be the primary goal.This paper is divided into four parts,the first part includes concept analysis and value argument.Through a comprehensive comparison with ex post relief environmental civil public interest litigation in terms of litigation objectives,constitutive elements and liability,the paper finally returns to its value superiority in terms of risk prevention,environmental protection and benefit measurement.In the second part,the legal norms and judicial practices are comprehensively reviewed.The case of "five small leaf maple" and "Yunnan green peacock" are introduced,and the key issues to be solved in the judicial application process are proposed with typical cases as the starting point and problem awareness as the basic orientation.In the third part,we analyze the current development dilemma,including the existence of unclear criteria for acceptance of cases,narrow scope of prosecution subjects,unreasonable allocation of the burden of proof,and the way to improve the burden of proof.In the fourth part,the future improvement path is explored and proposed.On the issue of admissibility criteria,the connotation of significant risk should be reasonably defined as environmental hazards,and the specific criteria should be refined to give full play to the active role of different subjects in the process of identification.On the issue of the scope of prosecution subjects,it is advocated to extend to individual citizens and strengthen the role of litigation incentives and prior review.On the issue of allocation of burden of proof,it is necessary to differentiate the rules of proof from the traditional tort litigation and adopt the rules of shifting the burden of proof,provide standardized evidentiary standards through the accumulation and analysis of scientific data.On the issue of liability,the effectiveness and flexibility of liability should be enhanced through injunction and settlement agreement,and the real realization of the risk prevention function should be guaranteed by long-term enforcement supervision mechanism,environmental enforcement punishment mechanism and special enforcement supervision agency.