Theoretical Interpretation of environmental public interest litigation and Innovation

[Abstract] environmental public interest litigation is a kind of public interest when the environment have been violated or in danger of being against the Law allows citizens or public interest groups to preserve the environment and to the courts system. Environmental public interest litigation, including Civil, administrative, three types of criminal and environmental public interest litigation is to safeguard public interest environment, it does not require the plaintiff and the case has a direct interest. connotation of public interest litigation environment, including the institutionalization of environmental public interest litigation, the plaintiff's right to relax the qualification, environmental public interest litigation the acceptance range, the distribution of the burden of proof, cost-sharing litigation, the plaintiff established reward system, the Development of environmental action groups and to prevent abuse.

[Key Words] environmental, public interest litigation, theoretical foundation, institutional innovation

First, the theoretical basis of environmental public interest litigation and public interest litigation appeared in the 20th century, 60's, it is usually understood as an individual, organization or state agency is the plaintiff, in order to damage the national interests of the majority or not a specific (targeting the behavior of public to prevent, deter damage to public behavior and to hold appropriate public liability for damage to persons for the purpose of proceedings to the court of special events. then when the environment as a public interest (public service have been violated or in danger of being violated, such as pollution of the environment damage the ecosystem or so, against such an action is the act of environmental public interest litigation.

Environmental public interest litigation is due to administrative authorities or other public authorities, companies, enterprises or other organizations and individual violations or failure to act, the environment or public interests have been violated and the risk of infringement, the Law allows citizens or groups to preserve the environment public interest litigation to the court system. {1} This Lawsuit is not a separate type and area of litigation, but only a plaintiff litigation related qualification and the means used in administrative proceedings can also applicable to Civil proceedings. If the defendant objects to the environment causing public danger of abuse or violations of administrative authority or other public authority, shall apply to administrative proceedings in environmental administrative public interest litigation, if the respondent objects companies, enterprises, other organizations or individuals, shall apply to Civil proceedings in the Environmental Public Interest Litigation. the United States, Britain and the same, Japan and other countries have been recognized in the legislation of environmental public interest litigation.

The emergence of environmental public interest litigation is not accidental, it is the social Development and political and legal thinking product innovation, there is a profound legal basis. With the economic and social Development, social relations among people become more complex, each person's interests and the community linked more closely to the public interest, with the rights of society, the "public interest" and "private interest" mutual penetration, the typical public interest litigation to "private" protecting "the public" in nature will be consistent with this trend. "reasons for environmental violations behavior is often a social usefulness, value justification, legitimacy and inevitability, which makes the relevant substantive Law and procedural Law are bound to the social and wounded rich colors. Therefore, when speaking of environmental tort jurisprudence relief based on need legal focus from the community, rather than the traditional legal principle of individualism. "{2}" from a social perspective of jurisprudence, as more involved in environmental law, social welfare, environmental law is a social law. environmental public interest litigation to thinking of social law background, legal basis of social. "{3}
The traditional theory of the substantive right of appeal rights on the premise for the proceedings, only when the substantive law of the rights are violated or threatened to effectively exercise the right to appeal. With the right to appeal the new Development, the right to appeal the connotation and extension are expanding, "the right to appeal developed into a method based on the proceedings arising from the independent rights. The basic theory is based on 'appeal of the interest', that is, if the plaintiffs sued the interests of its claim to have contact, they think that the enjoyment of their right to appeal ... ... Accordingly, we can get out, even if the act did not infringe the rights of the defendant, but in order to safeguard public interest and may have been related litigation, environmental public interest litigation and has the right to appeal is based on the environmental public good. "{4} Therefore, in the Environmental Public proceedings, as long as the interests of the plaintiff related damage, the plaintiff can exercise its right to appeal, to obtain the appropriate judicial relief.

Environmental rights as a proposed new rights, but also for environmental public interest litigation based on a right of appeal. Environment right relationship is the subject of environmental laws have the right to enjoy favorable environment, but also the obligation to protect the environment. Environment is a kind of right in the right basic human rights, it covers the individual, unit, national, and environmental rights enjoyed by all mankind. deprivation and environmental rights, once lost, subject to environmental laws and relations can not continue to survive and develop healthily. environment right now as a right by the public enjoy, even if the right to appeal in accordance with the traditional theory, the environmental public interest litigation can be found from the angle of the right environment, the basis for the exercise of the right to appeal.

Second, the establishment of the need for environmental public interest litigation system in the system of administrative and Civil proceedings against the plaintiff to sue a more stringent restrictions. Current <<Civil Law "> Section 108 provides:" The plaintiff is a direct interest in the case citizens, legal persons and other organizations. "standing to sue must" have a direct interest in the case "that is, civil action brought by the environment must be a personal or property rights and interests of those directly affected by civil wrong against another person. This is obviously the environment very unfavorable for tort victims. because they have suffered most of the environment against "indirect" and "invisible." current <<Administrative Procedure Law>> Article 2: "Citizens, legal persons or other organizations that the executive and the executive staff for a second specific administrative act infringe upon their legitimate rights and interests are in accordance with this Law to the people's court. "from the provision itself, the civil proceedings to sue the qualifications of elements than the relatively more lenient, As long as the plaintiff considers a specific administrative act violated their legal rights, that is, the elements have the standing to sue. However, according to the theory of administrative law, as a <<Administrative Procedure Law> "Chap scope of the case provided for by the plaintiffs, should be the cases cited by the administration within the relative. In other words, has standing to initiate administrative proceedings should be one who is the administrative counterpArt, the specific administrative legal relations of non-executive authorities of the pArties. In this case, if In an environmental management activities, the specific administrative act is not relative to the interests of environmental harm, but then other citizens, legal persons or other organizations of the legitimate rights and interests of the infringement. Well, according to the theory of administrative law or regulations, these aggrieved residents, legal persons or other organizations because the administration is not relative and therefore not eligible to have the prosecution. In recent years, citizens on environmental issues gradually increased the administrative public interest litigation, but were the subject of proceedings the court does not have the qualifications to dismissed on the grounds that there are many typical cases.

Thus, in our country, whether civil law or administrative procedure law, eligibility for the prosecution of environmental litigation may provide too strict, citizens or groups filed Public Interest Litigation in the "threshold" is set too high. And on behalf of environmental public Environmental organizations do not pay attention to the interests of the means of protecting the environment through public interest litigation, environmental public interest litigation which has not really established. from the seriousness of environmental problems, the current system inadequate protection of environmental rights, public pArticipation and the objective requirements of the precautionary principle multi-dimensional study, the establishment of environmental public interest litigation has become the protection of citizens environmental rights and environmental reality of the public interest requirements. {5}
1. Executive power to protect the environment from inadequate public increasingly serious environmental problems. China has long pursued a national environmental management system of the monorail running through all levels of government in the name of the state Environmental Protection agencies and legal form, the full exercise of Environmental Protection implementation, monitoring and management functions, and to predict the whole of society and decision-making environment. In this system, the government environmental management of administrative depArtments and their staff are often self-interest because, for some, temptation, bias, or succumb to local protectionism in a certain pressure, unwilling or unable to implement the right to administrative action to protect the environment. At this time the right of citizens without environmental litigation, violations of environmental rights violations are likely to smooth. "lot of today's government action on the broad range of ecological significant impact on the environment, and even affect the interests of future generations, such as weir construction of the dam will cause the law of large rivers ecological damage, the construction of nuclear power plants may cause unexpected environmental impacts. because of such environmental impact borne by the whole society and not directly to the interests of any individual citizen, according to the traditional theory of the administrative proceedings, would not have qualified to conduct such proceedings affect the environment. This most dangerous of these government, but the fundamental way without supervision. "This alone to the exclusion of citizens to participate in the administration of single-track operation mechanism so that our environmental problems become increasingly positive trend.

China's current environmental pollution and ecological damage has reached a very critical stage. Due to irrational use of resources or major construction projects, so that the destruction of the natural environment and resources, causing a series of ecological destruction of environment and natural resources, a large number of Huanjing pollution to environmental degradation, resulting in harm to human health, harm living resources, affecting industrial and agricultural production. so serious environmental crisis is not only the health and lives of the people suffered serious �ֺ� social life, and have restricted China's economic Development and affect social stability an important factor.

2. The principle of public participation and the objective requirements of the principle of prevention. Environmental pollution and destruction and damage caused by a broad social, not alone the power of government to protect the environment, we must borrow the concept of democracy and public participation in environmental administration and environmental justice to implementation of 1992 and the United Nations Conference on Environment and Development, adopted by <<Rio Declaration>> clearly stated: "environmental issues are best in the participation of all concerned citizens, to be addressed at the relevant level, everyone should be able to ... ... effective use of judicial and administrative procedures ... .... "Our third paragraph of Article II of the Constitution the provisions of" the people in accordance with the law, through various channels and forms, management of national affairs, economic and cultural undertakings and social affairs "also established a public involved in this principle. environmental public participation, including participation in environmental legislation, administrative participation, judicial involvement. environmental public interest litigation is public participation in environmental management, pollution in the process of resolving an important system, not just a simple action means. Public use of judicial means to resolve the environmental hazards, will enhance their awareness of Environmental Protection to safeguard their environmental rights and the belief that this enhanced public interest litigation for the environment but also the establishment of the people to create a good foundation. Therefore, the establishment to absorb the public participation in environmental management and operation mechanism of the environmental public interest litigation has become a real urgent need.

Environmental public interest litigation is another important principle of environmental law, "the principle of prevention first," an important means of support. Compared with the private interest litigation, public interest litigation filed and the final damage award does not require that the facts must have occurred, as long as reasonable under the circumstances to determine the potential of social welfare against the possibility of litigation by the violator may also bear the corresponding legal responsibility. This can effectively protect the national interests and social order free from violations and violations, the violations nipped in the bud. In environmental public interest litigation, this preventive function is particularly evident and more important, because once the environment is difficult to reinstate the damage, so the law is necessary in the environment has not yet occurred or has not been completely against the time of application to allow citizens to be excluded from judicial means, thereby preventing environmental public suffer irreparable loss or damage.

3. Foreign environmental study Public Interest Litigation. The modern state of environmental public interest litigation system to the most developed countries such as Britain, especially in the United States with. The United States eligibility requirements for administrative proceedings the plaintiff was very broad. It will be limited to the eligible plaintiff has an interest is legal protection and government administrative action or the plaintiff would cause "injury in fact." and this "damage" is not limited to economic or material damage, but also "aesthetic, nature conservation and recreation" and the value of loss or impairment, not only that, as long as there is damage on the can, the extent of damage does not matter. American "<Clean Air Act"> also initiated the famous "citizen suit provisions", provides that any person can name their own pollution emissions according to the law on illegal or to fulfill legal obligations by the federal Environmental Protection Agency sued the civil litigation where both the characteristics of civil and administrative proceedings. citizens the right of action against the United States is considered a right (that is, or enforcement against illegal sewage measures, citizens are as a "private prosecutor", and the corresponding functions of the government's law enforcement exists in the implementation of environmental regulations play an important role. Britain's environmental public interest litigation system is also more developed. and the United States qualified to give directly to individual citizens, the plaintiff is different In the UK, only the prosecutor can bring a lawsuit on behalf of public interest litigation, he can under the law in accordance with the terms of reference or application filed by the parties of administrative public interest litigation environment. party if you want to bring in their own name, you need the agreement of . The Action of ultra vires the provisions of the French people as long as the prosecution's own moral or material directly against the specific administrative act subject to ultra vires of the complaint can be filed.

Public Interest Litigation and the environment, as citizens of the environmental tort plaintiffs filed public interest litigation is also common in countries eligible to show to relax and expand. Private in order to safeguard the public interest to initiate civil action is a worldwide phenomenon occurs, the situation is scholars believe that the most important development is the future direction of civil litigation. the traditional "I am directly affected by the damage," the lawsuit qualifications, has been unable to meet the interests involved in proliferation, the environment group interests against the needs of civil litigation, civil and prosecution for violations of environmental public Plaintiff has been increasingly recognized qualification. the United States and some federal environmental laws and regulations of the "citizen suit provisions," confirmed the identity of individual citizens of pollution constitute acts of public prejudice, the qualifications of environmental public interest litigation filed. and the United Kingdom in recognition of traditional law not enough After prevent environmental violations, but also modified the relevant laws and regulations, approval for the public to prejudice the victims themselves or through the prosecutor may bring an action. UK <<Pollution Control Law "> there" for public nuisance, any person may sue,, requirements.

Links to Research Papers Download http://www.hi138.com Third, to establish the feasibility of an environmental public interest litigation. China's environmental situation and its management. China's current state of the environment for everyone to see, human-induced environmental pollution and ecological damage have been very serious, intensifying environmental crisis on people's lives, causing great harm to physical and mental health. Although the local city a certain control of environmental pollution, but the overall deterioration of the ecological environment is still spreading to rural areas. Our management of the environment is the government administration to implement single-track operation mechanism ... ... "the disorder and weak administrative system, the absence of administrative supervision and inefficient, and environmental law enforcement in all of these factors such as local protectionism, resulting in ever-expanding executive power not only failed to effectively assume the heavy responsibility of safeguarding the environmental public interest, even though it itself constitutes a threat to the public interest. " {6} Therefore, given China's current environmental situation and the failure of management, environmental public interest litigation system can be made to change the current status of civic embarrassment of prosecution of nowhere, for the improvement of China's current state of the environment and the improvement of environmental management are of great significance.

2. "Environmental public interest litigation" legal basis. Although environmental public interest litigation has not institutionalized, but in the relevant national laws and regulations have been made provisions for environmental public interest litigation, which is the establishment of environmental public interest litigation system laid the foundation. China <<Constitution>> Article 2: "Republic of China All rights belong to the people. the people in accordance with the law, through various channels and forms of management of national affairs, economic and cultural affairs and social affairs." which provides of "all rights" to protect the environment naturally includes the rights of citizens, of which "through various channels and forms" should include "action" of the ways and forms.

Issued in 2002 <"Environmental Impact Assessment Law"> Article 11 stipulates that the establishment of special planning authorities may have adverse environmental impacts and directly involved in the planning of public environmental rights and interests shall be submitted for approval of the draft plan before the demonstration will be held , hearings or take other forms, to consult with relevant units, experts and the public on the draft environmental impact report comments .2005 November 23, the State Council executive meeting examined and adopted the <<State Council on Implementing the Scientific Concept of Development and Strengthening Environmental Protection >> The decision to study the establishment of environmental civil and administrative prosecution system, the decision also proposed to play a role of social organizations, to encourage a variety of environmental violations to report and expose, and promote environmental public interest litigation.

3. The success of the environmental public interest litigation case .2005 April 25, Beijing Municipal Bureau of Parks prosecution lawyers Chen Yueqin, asking them according to China <"Urban Greening Ordinance>> No. 16 and related to mandatory national standards for green projects Huaqingjiayuan for acceptance and issue a final acceptance of single-greening project. case, the defendant issued by Beijing Bureau of Parks evidence that rate of green land area Huaqingjiayuan the actual rate is only 16.3% green space and developer sales brochure promised 41% of the difference far, with the mandatory 30% of the bottom line standards have gaps. plaintiff pursuant to sue the original defendant, after deliberation the two sides signed a <<Reconciliation "Agreement>, accused Beijing Bureau of Parks in accordance with the Agreement on July 7, 2005 Huaqingjiayuan greenbelt on the verification and issued the <<green acceptance certificate>> that the administrative case finally closed the successful reconciliation. The case is considered to be China's first case of successful environmental public interest litigation, created a Chinese environmental public interest litigation precedent.

4. Citizen awareness of environmental laws and the development of environmental groups. With economic development and social progress, environmental laws and citizen awareness is improving, people are no longer just content with the abundance of material life, but also the quality of living environment gradually required improved. Citizen Law awareness as a legal development of the external driving force, is also actively promoting the legal direction to the more perfect. As citizens awareness of environmental laws, many environmental groups to establish and develop, our country about Environmental Protection Groups of more than 1,600, and more well-known Chinese Environmental Science Association, the China Wildlife Conservation Association, the Chinese Society for Sustainable Development, China Environmental Protection Foundation, Friends of Nature and so on. empowering citizens and environmental groups the right to litigation to protect the environment is a public good necessary, but existing systems can not achieve this need, and therefore it is necessary to establish an environmental public interest litigation.

Fourth, China's environmental public interest litigation system design concept 1. The institutionalization of environmental public interest litigation. The establishment of environmental public interest litigation, the first environmental law to be clearly defined public interest litigation. I agree with one of three ways specified by the highest judicial organ specific judicial interpretation, the provisions of environmental public interest litigation basic procedure, the second is through the Water Pollution Control Act, Air Pollution Control Act and other Environmental Protection laws for individual amendments to the creation of specialized terms of environmental public interest litigation and the third is through the Code of Civil Procedure, Administrative Procedure Law of the amendment, including the environmental public interest litigation in the set the public interest litigation process.

2. The plaintiff the right to relax qualifications. According to the traditional procedural theory, only have a direct interest in the proceedings may bring an action personnel. However, due to environmental violations often have indirect, potential, widespread environmental damage to public welfare is not necessarily a direct and personal the stakes. According to <<Ministry of Environmental Protection Law "> the provisions of Article VI, all units and individuals have the obligation to protect the environment, and the right to pollute and destroy the environmental units and individuals to report and prosecute. in accordance with this provides that the law should be given to national authorities, relevant organizations, individual citizens to environmental public right of appeal. which, given a state organ for the prosecution, the relevant social groups for the environmental class of non-governmental organizations, the individual is a country of nationality, at least 18 years of age and have completely capacity of our citizens.

3. The acceptance range of environmental public interest litigation. Environmental Public Interest Litigation should be mainly limited to the scope of executive authority under the "according to law" principle can not directly intervene, the damage to the environment the subject of public interest in civil actions, the environment should the scope of administrative public interest litigation in the existing administrative proceedings scope of accepting cases, appropriate to be extended. "administrative action lawsuit for being, our country is currently limited to the specific administrative act, which is due to environmental action for public good aspect is not sufficient. abstract administrative acts are often more connected with the public interest To close, the impact on the environment is greater public interest. If the defendant out of the abstract behavior of administrative acts, the doubt to a large extent hindered the maintenance of environmental public interest, so it should be, as the respondent objects to allow an administrative litigation. "{7} Thus, environmental public interest litigation against the plaintiff on the environmental public interest can improper administrative actions, or have public duties to protect the environment not as the executive proceedings.

4. The allocation of the burden of proof. (1 Environmental Public Interest Litigation the distribution of the burden of proof. Is used in civil proceedings, "who alleges evidence" burden of proof principle, but in the public interest litigation in the environment from the evidence the defendant is relatively close and easy to evidence, and the environment highly specialized cases of pollution, if the evidence by the plaintiff, will make it at a disadvantage. Therefore, "<Supreme <PRC Civil Procedure Law of the views of a number of issues>> Article 74 provides that caused by environmental pollution action for damages, the defendant's infringement of the fact that the plaintiff be denied by the defendant the burden of proof. So, Environmental Public Interest Litigation in the plaintiff to prove the defendant as long as prima facie evidence of a polluter, and the fact that the existence of pollution and pollution behavior damage is a causal relationship between the results and so the burden of proof to the defendant.

(2 environmental public administrative proceedings the burden of proof allocation. <<PRC Administrative Litigation Law>> Article 32, the defendant made a specific administrative act of the burden of proof should be provided to the specific administrative act of the sentence and the according to regulatory documents. in environmental public interest litigation, the specific administrative acts of the defendant the burden of proof by the defendant for the defendant other than the specific administrative act or civil procedures should be based on the fact that the specific circumstances of commitment by the plaintiff and the defendant.

5. Share the cost of litigation. China's existing pre-paid legal fees by the plaintiff, the verdict by the losing party after the commencement of the system. In environmental public interest litigation, the litigation costs of a large number, evidence may also be applied to highly technical approach, the be costly and out of public interest litigation that the plaintiff made the maintenance of public interest, so if the plaintiff has the burden of litigation costs, the inevitable will dampen their enthusiasm is not conducive to the maintenance of the public.

Environmental public interest litigation on litigation costs, we can include people's environmental public interest litigation <<People's Court lawsuit charging>> Article 26 of the plaintiff does not prepaid court costs in the range. Procuratorate of environmental public interest litigation filed, if undertake the necessary cost of litigation, paid by the same library. plaintiff is a social organization or citizen of environmental public interest litigation against the plaintiff, and its litigation costs can be passed in two ways: First, the cost of litigation insurance. The second is the establishment of environmental public interest litigation Foundation. from the environment each winning penalty in cases of public interest litigation aside a certain percentage of the Fund as an environmental public interest litigation, the same time, the Foundation can accept donations as a fund source community. Environmental Public Interest Litigation before the plaintiff filed public interest litigation can be to the environment Foundation for Public Interest Litigation Public Interest Litigation costs, environmental public interest litigation, after the application is received by the Foundation's review of the application that the public interest litigation filed by the environment, and have the corresponding fact and reason, you can approve.

6. Establishment of the plaintiff and reward system. Due to environmental public interest litigation is the maintenance of environmental public interest litigation is not limited to the plaintiff himself a beneficiary, and environmental public interest litigation filed labor-intensive time-consuming, the plaintiff may need to bear certain costs of litigation, so in order to mobilize public interest litigation filed public enthusiasm, we can learn from the practice of foreign plaintiffs to establish incentive systems, such as American "" Anti defraud the Government Law "> provides that the accused will be punished by losing a certain amount of fines, the plaintiff was entitled to extract a fine from the accused 15% -30% of the amount as a reward.

7. The development of environmental groups. In me, to promote the development of environmental public interest litigation need to vigorously develop the Environmental Protection organizations, in particular the development of non-governmental organizations, environmental groups. The establishment and development of environmental groups, can stimulate the enthusiasm of the people to protect the environment, environmental groups themselves as environmental Proper public interest litigation plaintiffs can fully play its role in efforts to protect the environment. In addition, the professionalism of public interest litigation, the parties of unequal strength and durability of litigation lawyers need more people involved in the legal profession. can stand constantly in the public stance on social questions of law known as the "public interest lawyers." public interest lawyers involved in making public interest litigation in the system, policy formulation and operational implications of greatly increased public interest lawyers and lawyers professional operation in social life special status and influence, is conducive to influence the future through public interest litigation the purpose of public decision-making. It is through participation and efforts of public interest lawyers, public interest not only to achieve a private right of action for relief, but also a dialogue with the government and business opportunity and sites, as called for public attention and maintain their own vital interests of the flag. {8}
8. Prevent litigation abuse. Due to environmental public interest litigation to expand the scope of the plaintiff, in evidence, litigation costs and other aspects of the plaintiff shall also facilitate the proceedings, which there is the possibility of abuse complaints. To prevent abuse complaints, you can first set the establishment of administrative procedures, the prosecutor in the environmental public interest litigation filed before the first to report the relevant administrative departments, administrative agencies within the statutory period does not make decisions and take timely measures, citizens or other authorized body can initiate their own environmental public interest litigation. for the plaintiff Abuse losses caused by the defendant the right to appeal the case, the plaintiff should be held corresponding tort liability, compensation for the defendant's mental and material losses. The Chief asked to set procedures and accountability can effectively prevent infringement environmental public interest litigation abuse, to avoid judicial resources are not the necessary waste.

[References]
{1} {6} Zhang Minghua. Environmental Public Interest Litigation System (J. Law Forum, 2002 (6.

{2} Gregory red. The ethical basis of environmental law (A. Environmental and Resources Law JOURNAL (Volume I (C. Beijing: Law Press, 2001:300.

{3} has the Cultural Revolution, Wang Zhi. Discussion of environmental public interest litigation to establish the legal system (EB / OL.http: / / www.1488.com/china/IntoIaws/Law point / De-fault.asp? ProgramlD = 22 & pkNo = 3313.

{4} {7} Fengjing Yao. Environmental Public Interest Litigation Theory and Practice (J. Hubei Social Science, 2003 (10.

{5} Shi Yucheng. Environmental Public Interest Litigation Several Issues (J. of Modern Law, 2004 (3.

{8} Chen Yueqin. A successful case of environmental public interest litigation (J. Chinese law, 2006 (5.

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