Interactive Relationship Between Environmental Policy And Environmental Judicial Adjudication

The relationship between policy and law,policy and justice has always been a topic that has attracted much attention from legal profession at home and abroad.Similarly,in-depth exploration of the relationship between environmental policy and environmental judicial adjudication is also a considerably challenging subject in the field of environmental law.The research on the interactive relationship between environmental policy and environmental judicial adjudication mainly faces two basic theoretical questions: Can policy become the source of law for judicial application? Does justice have a policy creation function? This article clarifies that policies can become a formal source of law through legalization,or act as a supplement to legal loopholes to provide a normative basis for justice,so policies can intervene in justice through this two channels.In order to fully respond to policies,Judicature not only plays the role of passive policy implementer,but also derives other basic judicial functions such as rule creation function,policy formation function,power restriction function,etc.based on its basic function of dispute resolution.And then,based on the field of the interaction between policy and justice as well as focusing on the interaction between environmental policy and environmental judicial adjudication,we can summarize two following questions which worthy of further inquiry: first,will environmental policy have a substantial effect on environmental justice? If yes,how does environmental policy intervene environmental justice? Second,can environmental judicial decisions affect environmental policies in turn? If yes,how does environmental justice respond to environmental policies?According to the theory of the separation of state powers,environmental policy and environmental judicial adjudication belong to two different power divisions,i.e.administrative power and judicial power,and the mutual checks and balances of the two should be the meaning of the topic.However,checks and balances are mainly embodied in mutual restraint.Through empirical analysis,this article argues that environmental policies and environmental judicial judgments also have a mutually promoting relationship,that is,environmental policies can provide a basis for environmental judicial judgments through indirect channels such as environmental legislation,environmental judicial interpretations,environmental judicial normative documents,etc.,and through direct channels such asproviding basis for environmental judicial judgments,to have an impact on environmental judicial adjudication;and based on the basic function of resolving environmental disputes,environmental justice derives functions of environment policy creation through environmental judicial interpretations,environmental judicial cases,environmental judicial normative documents,environmental judicial recommendations,etc.,environment restriction function through incidental review,and environment police conflicts harmonize function through environmental judicial adjudication.Therefore,between environmental policy and environmental judicial adjudication,an interactive relationship pattern that both checks and balances each other and promotes each other has been formed in practice.The formation of the pattern of interaction between the two has the practical basis of common political attributes,functional complementary attributes,and the need ofjointly responding to environmental risks in a society.But at the same time,environmental policy is also facing the boundary determination problem when intervening environmental judicial adjudication,and environmental judicial adjudication is faced with problems such as limited effectiveness in responding to environmental policies.In order to further optimize the interactive relationship between environmental policy and environmental judicial adjudication,on the one hand,as to the boundary problem of environmental policy intervention in environmental judicial judgment,this paper clarifies the boundary of environmental policy intervention in environmental judicial judgment through establishing institutional arrangements such as the principle of legal retention of environmental policy.On the other hand,as to the problem of the limited effectiveness of environmental judicial adjudication in response to environmental policies,this article proposes that in order to provide more judicial practice and authoritative support to environmental policies,measures such as standardizing environmental judicial interpretations and improving the environmental judicial case guidance system can be used to promote the legal development function of environmental judicial adjudication;and in order to further strengthening the supervision and control function of environmental judicial adjudication on environmental policies,measures that introduce the incidental review system from a single environmental administrative judicial field into the environmental criminal justice and environmental civil justice fields can be adopted.