Research On The Legal Problems Of Preventive Environmental Civil Public Interest Litigation In China

Nowadays,human beings are in the era of risk society,and environmental risk is one of the risks faced by human beings.Environmental risk is different from environmental damage,and its typical characteristic is scientific uncertainty.Traditional institutional framework is based on certainty and predictability,environmental risk is difficult to be effectively dealt with and solved within the traditional institutional framework.In order to deal with environmental risks with scientific uncertainty,the Judicial Interpretation on Environment-related Civil Public Interest Litigation includes the acts with major risk of harming the public environmental interests into the scope of cases to be accepted,and the preventive environment-related civil public interest litigation comes into being.It is different from remedial environmental civil public interest litigation,preventive environmental administrative action and environmental tort litigation,in which preventive environmental litigation is based on the prevention of damage and lawsuits are filed against the acts that have not happened yet,but may happen.It has broken through the imprisonment of the traditional idea that "no damage,no remedy",advanced the time point of judicial intervention to the time when the damage has not yet occurred,and realized a shift of the response to environmental risks from compensation for damage to prevention from the source.Compared with remedial environment-related civil public interest litigation,environmental law enforcement and environmental legislation,we have more scientific and unscientific responses.However,due to the scientific uncertainty of environmental risks,preventive environment-related civil public interest litigation is carried out under the civil litigation framework with a strong flavor of tort law.Influenced by the traditional tort concept of "no harm no remedy",preventive environment-related civil public interest litigation has been wrongly positioned as "supplement to environmental tort litigation".Although the Green Peacock Case has broken through the ideological shackles of the traditional environmental tort litigation,the preventative environment-related civil public interest litigation still has the obvious feature of an ex-post remedy,for there are such problems as the difficulty in identifying major risks,the difficulty in allocating the burden of proof,the singleness of the way of bearing liability and the lack of such problems.Inspired by the three-division system of risk concepts,this article proposes suggestions to improve the judicial identification of major risks,emphasizing the burden of proof,flexible application of liability assumption,and strengthening of the coordination between law enforcement and judicature,all of which are of help to the smooth development of preventive environmental civil public interest litigation.