China's current system, the establishment of environmental public interest litigation Analysis of constraints

Keywords: environmental public interest litigation / public interest litigation / constraints

Summary: Environmental Public Interest Litigation and the great differences between the traditional litigation in the traditional litigation system to dominate the litigation system and the litigation culture is difficult to establish a stable position, has formed a national environmental public interest litigation system in various shapes, our hard fix a follow objects, some of the scholars of the traditional concept of patchwork legal system is closing the establishment of environmental public interest litigation system in the theory of space in the country to promote environmental public interest litigation system in the construction of the power is not strong enough. These factors determine our establishment of environmental public interest litigation system needs to undergo a long process, the current approach should be taken is to try.



We are advocates of environmental public interest litigation system and active advocate of hope in our country to the early completion of environmental public interest litigation system [1] However, we believe that this system is to improve the construction process or the process will be long though Most scholars agree that China needs to build environmental public interest litigation system, but it was not difficult to establish this system as called for such a system on the same passionate thinking. outlined those scholars reasonable, some judicial system for the establishment of environmental public interest litigation efforts and these efforts demonstrate the reasonableness, not able to explain our country can quickly establish a sound environmental public interest litigation system justification Environmental Public Interest Litigation is a growth process is in in the system, we must wait patiently through an active pArt in the attempt. We determine the main reason for this is the current establishment of environmental public interest litigation system in China faces many constraints.

First, the institutional and cultural factors: environmental public interest litigation is difficult to be today's system and culture to accept it

Environmental public interest litigation is a new, a "heresy" the quality of the litigation, it is difficult in today's culture of litigation and the overall acceptance of environmental public interest litigation is already existing system, the U.S. litigation environment is a typical representative of citizens, while environmental public interest litigation and is a new system [2] If the beginning of the litigation history of mankind in ancient Greece and the definition of China's Spring and Autumn Period, the litigation history of mankind, which is building the history of the litigation system has passed about 2,500 years of environmental public interest litigation history, environmental Law if the United States as the beginning of the citizen suit provisions, has less than 40 years.

Environmental public interest litigation system and the traditional litigation system, including a number of relatively young system of administrative litigation obvious differences, for example, in the past a variety of litigation, the plaintiff or the plaintiff's litigation position with the same subject are for their own interests or his own behalf bodies, institutions of interest complaints, the state administrative organs, the state prosecutor of the complaint with the essential nature of safeguarding national interests, but often the driving force of its pArticipation in the proceedings from the authorities of duty, and environmental public interest litigation to the plaintiff does not to achieve the pursuit of personal interests, the interests they represent is, in essence, belongs to all mankind, or with a certain ecosystem or environmental units linked to community enjoyed. Again, the basic structure of past litigation system is the "three pillars "that litigation Liangzao plus judge, and environmental public interest litigation is" a driving four horses. "so-called" Sima a driving "means: public interest litigation in environmental cases, in fact there are four pArties, namely, judicial , the direct implementation of the environmental behavior of the main hazards, environmental management responsibilities of state organs, the plaintiff. regardless of the actual environment of public interest litigation in the defendant management responsibilities of state authorities or the implementation of the behavior of the main environmental hazards, such litigation in all four categories of the existence of such an objective body, the combination of these four main environmental public interest litigation to promote the conduct of environmental public interest litigation in the third class and fourth class of the main body has the same position, that is, in theory, they are environment interests of the defenders, should be implemented with the second pArty that is the main environmental hazards to confront the behavior, but in fact, this "parity" of the two pArties is often hostile to both sides in the third-party plaintiff to lazy to perform the duties to protect the environment as a cause of action litigation cases, the plaintiff bears environmental responsibility and the national authorities are opposing parties.

The difference is sufficient to environmental public interest litigation and sentenced to two types of traditional litigation, or the environmental public interest litigation ruled that the traditional litigation system heterogeneous. Environmental public interest litigation system and the traditional litigation system is not a subtle difference between the differences, but the nature of difference in meaning, precisely because there is this essential difference, environmental public interest litigation system was unable to be successfully accepted by the existing legal system, not smooth in Civil, criminal and administrative proceedings to obtain the sequence of the "fourth" position. If the Civil, criminal and administrative litigation proceedings is the same sequence of brothers, then, environmental public interest litigation with the brothers and family different "alternative" system. Thus, the environmental public interest litigation is difficult to dominate in the traditional litigation system and the litigation culture of litigation to establish a stable position, forming a stable, structured system. this just look at the United States, India and other countries environmental public interest litigation system was established, the difficult process of development can be confirmed.

Second, the theoretical aspects: relevance to the environmental public interest litigation has not been demonstrated to provide adequate theoretical support system

Citizens of the United States established a litigation environment, an American scholar, judge for this system provides a theoretical argument, in other countries and some of our scholars have also done similar work [3], but the relevant feasibility studies to environmental public interest litigation has not system to provide adequate, no doubt support the theory in public trust is purely theoretical hypothesis, with the reality of the relationship between man and nature, far from [4] theory of popular sovereignty does not necessarily lead to the construction of public interest litigation system, private implementation of the legal theory, private attorney general theory, although in support of environmental public interest litigation may be justified, but in conflict with the constitutional system does not meet the general principles of constitutionalism and the rule of Law.

Some scholars have suggested, according to China <<Constitution>> arrangement, citizens of the state organs and their staff, dereliction of duty and other unLawful acts of accused, denounced, against other rights, the existing <<Constitution>> of this provision and other legal repeat the provisions in the establishment of environmental public interest litigation system in China provides a far more U.S. <<Constitution>> Article more fully the legal basis, so it is reasonable to deduce a system of environmental public interest litigation, however, the Law of the prosecution the right to the right to sue other citizens can support the right of action, which is neither a constitutional basis, there is no legal recognition. [5] For decades, the legal basis has never been used to support environmental public interest litigation.

We believe that the theory of environmental responsibility for the implementation of environmental public interest litigation can provide a more reasonable explanation [6], to give the establishment of environmental public interest litigation system provides theoretical support, but it is not popular with absolutely convincing political theory, ie , people can still cling to the traditional rule of Law, political theory and the theory and refused to accept environmental responsibility theory, continue to adhere to well-established over the centuries from the government and citizens, "their duties" of the structure to find solutions to environmental problems.

Third, drawing on outside factors: the countries have tried hard to follow the object fixed for

Some scholars put forward the development of <<Environmental Litigation, "program, intended to seek from the litigation system and solve the environmental problems related to the interests of protection. The motivation for this move is undoubtedly good, but its feasibility is questionable in the program to be covered by the so-called environmental litigation, most are Civil, they can be naturally included, should also be incorporated into the traditional litigation system. China needs to build environmental public interest litigation system, but the need for specialized environmental public procedural law procedural law or the environment are still worthy of discussion. [7]

U.S. environmental public interest litigation practice, one of the most developed countries, its environment in the international Civil litigation system have a broad impact, but in this country in order to tease out a complete outline of environmental public interest litigation system is not an easy things. support basic U.S. environmental laws and citizen suits based on written environmental laws in its 16 so-called citizen suit provisions in the United States not only has no specific legislation for environmental public interest litigation, and virtually no public interest litigation for the environment, even if it is a simple procedure to establish specification, although its old and new case can be roughly sketched out a framework for environmental Civil litigation system, but the environmental citizen suits in different courts of different attitudes, the same court at different times of the environment on the wavering attitude of civil litigation, etc., indicating the system still in a state changeable.

Europe is the world's most economically developed regions, is one of the most impressive Environmental Protection to carry out one of the regions, but can not find here a unified model of environmental public interest litigation in Germany to pursue the rights have been infringed can only sue the basic principles of [8] the true sense of the environmental public interest litigation out of court outside, even if the law gives the environmental NGO, in some cases the plaintiff's eligibility to play [9], which is generally required by public interest litigation to grant the right to sue also vary considerably far. France only to environmental groups environmental public interest litigation filed to open a small hole, such as to make it through "ultra vires of the complaint," [10] to express the government's actions harmful to the environment, opposition to the British public interest litigation in the environmental achievements of its highest legislative <<Pollution Control Act, "on" any person "can be of" public nuisance "provisions of prosecution, which is equivalent to U.S. environmental citizen suit provisions in Italy, bring environmental public interest litigation need to resort to the provisions of the Constitution in principle be seen, as EU member states that several European powers did not really have to build environmental public interest litigation as our model of this system of environmental public interest litigation. [11] Indian academia, the judiciary for the environment and the institutionalization of public interest litigation were commenced hard work, but also achieved gratifying results, however, environmental public interest litigation system in India is obvious imperfections Indian environmental law, although the proceedings have a broad mandate, but did not exercise the right of appeal for the establishment of appropriate proceedings. The letters jurisdiction of the system can be described as effective, but mainly by the Supreme Court to implement the system, which makes the actual environment the likelihood of public interest litigation greatly reduced.

In the United States, Europe, India and other countries of the environmental public interest litigation practice in the protection of the environment, safeguard the interests of particular ecological environment, the environmental benefits, has played a huge role, but the national environmental public interest litigation practice, according to various lawsuits arising , the plaintiff composition varies, the court accepted the policy ebbed and flowed, the judge ruled disagreements abnormal phenomena about environmental public interest litigation system is a non-stereotyped, incomplete system. [12] If the system construction in the environmental public interest litigation is a pioneer on the Western developed countries, we should learn to Western countries, then we need to answer: Which country study, which model? is like the United States to citizen suit provisions as a "starting point" or as in Germany on the sue strict limits, is to learn Portuguese in <<environmental groups method>> "environmental framework law >>,<< public Litigation" <<civil law>> legislation such as full flowering, or learning in Sweden and other countries an environmental code to solve problems, like common law countries as the process of building the system to the judges to master, or the experience of learning the Portuguese established a relatively complete procedural law. the face of all the different models abroad, the choice we face difficulties.

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Fourth, the domestic exploration of factors: the idea of ​​improving the existing legal system is not yet mature

Some scholars have proposed the establishment of environmental public interest litigation system in China One of the reasons the previous system can not effectively protect the environmental interests, such as Mr. Bie Tao of "limited means of the Environmental Protection department of law enforcement" and "environmental public prosecution called the environment" link, he talked about the environment administration "is often a lack of strong enforcement tools, combined with the administrative system constraints, beyond their grasp, resulting in many long-term is not effectively stop environmental violations" [13]. Another scholar pointed out in our current litigation system Other interests of protecting the environment is not conducive to defects or deficiencies, such as the law of our general limitation period of two years, sued for damages due to environmental limitation period of three years, the longest period of limitation is 20 years, these provisions do not Taking into account the complexity of the process of environmental damage. Again, general civil litigation practice, "who advocate who is the burden of proof" principle, and in environment-related cases, often the defendant has the burden of proof capability, especially when individual citizens the plaintiff for the plaintiff often lack the ability of evidence, therefore, the implementation of this principle is clearly not conducive to the achievement of environmental public interest litigation purposes. In addition, the traditional litigation system, the principle of causality, the principle of attribution, also not conducive to the interests of safeguarding the environment.

Scholars to do the analysis is to illustrate the establishment of environmental public interest litigation in our system, the need, but to some extent, the analysis will establish a new state of environmental public interest litigation system slowly not, stay in the emergency amendments to the original to deal with environmental disputes in accordance with the law or the need to improve the previous system for the establishment of environmental public interest litigation system that need is "limited means of enforcement of Environmental Protection departments," the state can give these sectors more powerful means for the establishment of environmental public interest litigation system that the necessity is the administrative system constraints, the state can exclude these limitations, the establishment of environmental public interest litigation system that the need is "who advocate who is the burden of proof" principle disadvantage of the plaintiff as a weak state can be modified <<Civil Law>> , to impose the burden of proof in a strong position polluting enterprises or national regulatory authorities; for the establishment of environmental public interest litigation system that the need for the limitation period is too short, it may cause some interest because this period can not be missed by the litigation has been maintenance, the state statute of limitations period can be extended to maintain the required length of the environmental benefits when these are completed, the implementation of the new system will reduce the number of space, the establishment of public enthusiasm for environmental public interest litigation system will be impaired .

Fifth, social support factors: environmental public interest litigation in social support is not strong enough

In China, with increasing environmental problems and major environmental incidents continue to occur, the discussion on environmental public interest litigation more and more heated, many enthusiasts make the relevant legislation or construction of the proposed system, such as the CPPCC National Committee member Liang Congjie the CPPCC National Committee presented on the Third Session of the Tenth <<About as quickly as possible and improve environmental public interest litigation system proposal>>, Lv Zhongmei other 30 NPC deputies put forward the establishment of environmental public interest litigation system in the proposals of [14], Ministry of Environmental Protection Deputy Secretary policies and regulations long Bie Tao, Mr. his "environmental public interest litigation legislative ideas" [15], Chen method celebration - an ordinary farmer but also for the environmental public interest litigation legislative suggestions [16] These recommendations and other similar appeals are very rare, however, and establish a legal system with traditional characteristics of the new system with heterogeneous requirements of contrast, these calls were still weak. our system of environmental public interest litigation prosecution showed high enthusiasm, some of the state organs are trying to carry out the some of the environmental public interest litigation with the characteristics of the proceedings. [17] These attempts are commendable, but the orientation of China's legal existence of the interpretation of environmental public interest litigation space point of view [18], this remains to be trying to expand in China has occurred involving environmental litigation (including environmental tort litigation, and also appeared in the Songhua River pollution incident related to sturgeon fish, locusts and other litigation, such litigation regardless of whether access to the proceedings, which inspired the awakening of the people's right to appeal, raising the public awareness of Environmental Protection are very useful, but such litigation is too small, simply to protect the environment in which public and even fewer for the purpose of this All this shows that China's promotion of environmental public interest litigation in the construction of the power system is still not strong enough (we can not simply be interpreted as the people of this state of apathy, lack of public awareness, which is another way of China to establish the necessity of environmental public interest litigation system.

VI Conclusion

The five areas of analysis that we should be realistic treatment of environmental public interest litigation system construction, the current attitude is to try to be taken, should be detrimental to the system for the construction of institutional, cultural and other factors to take positive measures. Talking about here attempt to include two aspects: First, find the current legal environment for public interest litigation can be derived from the legal system, resources, by local modification of existing law to provide environmental public interest litigation system in the legal space along the other side of the existing law principle, the spirit of existing laws for judicial interpretation, the judicial interpretation of the environment through public interest litigation system become a reality and since there are traditional legal culture is not conducive to environmental public interest litigation system construction factors, we should try to overcome these factors, this process may be long. against Western countries and the environmental public interest litigation system vary on the situation, we had to do the hard work is based on China's national conditions and legal systems, cultural features, select OK for China to follow, learn the system. Since our power to support environmental public interest litigation is not very strong, the current policy course of efforts to draw more powerful supporters.





Notes:
[1] In 2008, I undertook the establishment of the China Environment Federation "environmental public interest litigation legislative Research project" (now end items, the reason for a positive commitment to this project because I believe that China needs to build environmental public interest litigation. After carrying out this Research projects, I even support the establishment of the system.

[2] Mr. Bie Tao environment once he advocated civil prosecution as "an emerging form of litigation" (see Bie Tao editor <<environmental public interest litigation>>, Law Press, 2007, p. 10, he said The "emerging" (this expression is not the same as the general language used is probably refers to a new state.

[3] based on environmental public interest litigation in the discussion of the theory, see Xu Xiangmin, Ling Xin, Chen Yang: <<environment to explore the theoretical basis of public interest litigation >>,<< China Population, Resources and the Environment>> 2009 4.

[4] on the false theory of public trust, the author intends to discuss it in detail in another paper, it is not repeat them here.

[5] Mr. Bie Tao quoted China <<Environmental Protection Act>> Article on "all units and individuals are ... ... the right to pollute and destroy the environment of units and individuals to report and prosecute," he said after the provisions, " Obviously, as a function solely of the state prosecution's Procuratorate, can thus 'of pollution and damage to the environment of units and individuals to report and prosecute,' that is to bring a civil prosecution "(see Bie Tao editor <<environmental public interest litigation>> legal Press, 2007, p. 9. convincing the judge is doubtful. "prosecution and the accused" to determine that neither filed a civil prosecution under the law, it is difficult to get words to explain their support.

[6] Xu Xiangmin, Ling Xin, Chen Yang: <<environment to explore the theoretical basis of public interest litigation >>,<< China Population, Resources and the Environment>> 2009 4.

[7] pointed out that Mr. Zhang Zhiyuan administrative public interest litigation in the discussion of a big misunderstanding, that mistake is the foreign general practice administrative public interest litigation (see Chapter Zhiyuan: <<administrative public interest litigation in the two major misunderstanding >>,<< Law Research>> 2006 6. I do not know whether the discussion of environmental litigation, there are such errors.

[8] such as Germany, "the Administrative Court Procedure Act>> states:" Unless otherwise provided by law, the plaintiff only in that its legal rights by an administrative act, refused to administrative act or omission violated can sue. "
[9] See Chang-jun: <<German environmental NGO participation in Environmental Protection through environmental litigation A Review of the legal system - public interest litigation in the environment, "the plaintiff qualified" for the center >>,<< Heilongjiang Journal of Management College of Politics and Law>> 2007 4.

[10] Wu Hua: <<types of administrative proceedings, "the Chinese People's Public Security University Press, 2006, p. 336.

[11] Only the Netherlands, Portugal and Sweden's environmental public interest litigation system be relatively well.

[12] Although the Portuguese founded the novel makes us feel the "public Litigation>> Sweden <<Environmental Management Act>> for the environment to provide a relatively complete legal institutional framework, as its environment, especially the court system provides for environmental disputes dedicated channel, but these seem not enough environmental public interest litigation system has been stereotyped, and thus we have a need to identify role models of.

[13] [14] [15] Bie Tao editor <<environmental public interest litigation>>, Law Press, 2007, p. 7,449-452,396-398 page.

[16] <<Chen Qing law as a farmer's suggestions for the environmental public interest litigation legislation >>,<< China Environmental News>> June 15, 2004.

[17] in practice some of the known environmental public interest litigation cases often include general civil litigation or administrative proceedings of the content, not the full sense of the environmental public interest litigation, which the environmental public interest litigation system is established or not will not convincing.

[18] China Environmental Protection Federation supported the "environmental public interest litigation legislative Research project" is one of two designs from our current interpretation of legislation to establish our space to find the specific environmental public interest litigation system, the path we are taking a hard .

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