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Research On The Legal Guarantee Of Environmental Right

Posted on:2014-07-06Degree:DoctorType:Dissertation
Country:ChinaCandidate:X F DingFull Text:PDF
GTID:1106330434973146Subject:Civil and Commercial Law
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China’s construction of constitutionalism moves up to the new era in the period of Reform and Opening up. The construction of constitutionalism, as a systematical program, needs the harmonious cooperation among the legal authorities. Environmental protection, considered as a vital issue in the present and future, has been a focus for concern all around the world, and the branch of environmental law has been among those with greatest extension speed. China’s environment is in continued deterioration while the concept of sustainable development and scientific outlook on development was rarely made in strategy. Meanwhile in many countries, the ideology of development was improved in means of making the concept of sustainable development into the Environmental Protection Law, promoting the governance of environment by law which gained a good performance. In the process of promoting the construction of constitutionalism and the concept governing a country rule by law, the laws of environmental protection are increasing while the effect of the law enforcement is far from satisfactory. With constitutionalism as the perspective, the judicial practice of China’s environmental protection as the study object, the implementation of the core value of the constitutionalism in the environmental law as the emphasis, the essay focuses on the regulation and restriction of the state power and the protection of the citizen’s environmental right searches for the route of judicial protection on environmental right in China by the comparative study on the practical phenomenon of China and developed countries. The essay includes five chapters except the guide and the conclusion.In the first chapter the environmental right and its protection by law is introduced. The environmental problems have brought tremendous disasters around the world and the increasingly serious problems even resulted in the ecological crisis. The countries around the world are searching for the solutions in perspective of nomocracy in order to relieve the contradiction between the right of survival and development. The Constitution of the supreme legal authority have made a great progress in the period, many countries has transformed the traditional Constitution to the ecological Constitution by confirming the environmental right in the Constitution or the environmental protection liabilities for the countries, accordingly, the legal systems of environmental protection are built in those countries.In the second chapter the constitutionalism basis of the judicial protection on environmental protection is analyzed. The ecological constitution has made environmental protection an important responsibility of the modern countries which is realized in the theory and practice. The protection of human right has raised the new requirements on the protection of the public’s environmental right, that protecting the environmental right by judicial power. USA and Japan, as the representatives of developed countries, has many practical experience needs learning in the judicial protection on environmental right.In the third chapter the proposal of building the civil suit system of environmental right is made by analyzing the current environmental civil tort. The current civil suit system of environmental infringement is the new development of tort law in environmental infringement, which protects the right of the victims to some extent. With the living body and property as its protecting object and the restrictions on plaintiff qualification, the current system has enough protection towards the environmental protection and some infringement could not be punished promptly. To decrease the infringement or its danger, a civil suit system for environmental right protection requires for construction, by which the plaintiff qualification and scope of accepting cases must be extended on the base of maintaining the environmental infringement suit and environmental public interest litigation and the construction of judicial relief measures as the guarantee.In the fourth chapter the construction of environmental administration litigation system and perfection of environmental criminal litigation system is discussed in the perspective of current environmental administration and criminal litigation system. The current environmental administration litigation system was built for the relative people’s refusal to accept the specific administrative act, which solves the relations between the relative people and administrative authorities and neglecting the public which has direct interest with the administrative management of environmental protection. The construction of environmental administration litigation system endowed the administrative authorities with the right of bring an accusation against the authorities and extend the scope to the abstract administrative activities when the authorities do not perform or do not perform correctly their duties of environmental protection, by which the environmental right protection could be promoted effectively. The perfection of the environmental criminal litigation system shall act as a deterrent and protection measure of criminal punishment to fight environmental crime and promote the environmental right protection.In the fifth chapter the realization path of the judicial protection of environmental right is discussed. The realization of the judicial protection of environmental right was firstly based on the perfection of the legislation, of which the main issue is the legalization of environmental strategies and solving the problem of dereliction of duty. By means of the perfection of legislation, construction of specific judge system, the implementation of judicial relief and legal aid system, the economically disadvantaged group shall effectively be close to the judicature and their right could be protected despite of their poverty. This conforms to the constitutional principle of respecting and protecting human right, the ideology of judicature works for people and it makes a tremendous practical sense in the process of constructing the harmonious society.
Keywords/Search Tags:constitutionalism, environmental protection, environmental right, judicial power
PDF Full Text Request
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