Research On China’s Preventive Environmental Public Interest Litigation System

The principle of "who pollutes,who treats;who destroys,who restores" has been deeply rooted in people’s hearts.However,due to the traditional concept of "no damage,no remedy" and the structure of the tort litigation system,China’s existing legislation is still inadequate in the prevention and control of ecological damage.As a response to the "green rule of law" of the preventive environmental public interest litigation,the original meaning is to prevent pollution,risk avoidance,so that environmental damage in the source to remedy,to promote green development,to achieve a harmonious coexistence between man and nature.However,in China’s judicial practice,the relief of ecological interests still tends to be "post-event restoration",and the prior prevention function of environmental public interest litigation has not been fully utilized.Preventive environmental public interest litigation refers to the relief system when the ecological environment is found to be infringed but the damage has not yet appeared or has the potential to be infringed,if it is not stopped and allowed to develop freely,it will cause significant or irreversible damage to the environmental public interest,the qualified subject to avoid the occurrence of the actual harm and bring environmental public interest litigation to the court.As an extension of the environmental public interest litigation system,the preventive environmental public interest litigation has three special features in relation to the basic system,namely,the conditions of prosecution,the allocation of the burden of proof and the way to bear the responsibility.In addition,it is important to continue to improve preventive environmental public interest litigation in order to implement the "green principles",protect the public’s environmental interests and build a comprehensive environmental protection relief system.In order to better improve China’s environmental public interest litigation system and give full play to its preventive advantages,this paper firstly integrates the legal systems of the United States,Germany and Japan in regulating ecological and environmental risks and briefly summarizes their basic connotations,and comes up with successful experiences suitable for the construction of China’s preventive environmental public interest litigation system,including clarifying the scope of litigation,setting up pre-litigation procedures and reflecting the preventive mode of liability.This is followed by an introduction to the legislation and judicial practice of preventive environmental public interest litigation in China,and a review of the relevant legal provisions and cases of preventive environmental administrative public interest litigation and preventive environmental civil public interest litigation respectively.The paper finds that the former has not yet been legislated for;the latter has a highly ambiguous scope of litigation,the rules on the allocation of the burden of proof,and the way in which the burden of proof is borne is not sufficient for the preventive function.Finally,this paper proposes countermeasures in two aspects: to clarify the scope of preventive environmental administrative public interest litigation and to improve preventive environmental civil public interest litigation;to clarify the conditions for prosecution,the targets of prosecution,and to improve the pre-litigation procedures and enforcement measures for the former;and to clarify the scope of litigation,to improve the rules on the allocation of the burden of proof and to improve the mode of liability for the latter.For the latter,three countermeasures have been proposed,namely,clarifying the scope of litigation,improving the rules on the distribution of the burden of proof and improving the way in which the burden is borne.