A Research On Environmental Civil Litigation Of Public Interest

In recent years, environmental litigation of public interest, especially the environmental civil litigation of public interest has become a hot spot in society. As a leading subject, many Chinese scholars are expanding their studies to this field eagerly, and judicial practices are launching in many parts of China. However, there are lots of misunderstandings or even misconceptions in academic study and judicial practices. Specialized, in-depth systematic study is needed.The text is consist of five parts:The first part is the basic theory of environmental civil litigation of public interest.The concept of public interest litigation began in Roman law. Public interest litigation is expected to play auxiliary function through democratic participation, to make up for the deficiency of state power institution. At first, public interest litigation system is not developed, its application is not widely, but with the development of capitalist industry and monopolistic, in order to prevent the state and public interests from being infringed, this system was finally revived in the late 19th century. However, public interest litigation as a term was not widely used until the 1960s. After that, since the middle of the 20th century, the increasingly serious environmental pollution and ecological damage and the growing environmental protection movements are triggering public attention to public environmental interest. It is manifested in law as the establishment of environmental public interest litigation system in Europe and the United States.Generally speaking, environmental litigation of public interest can be divided into environmental civil litigation of public interest and environmental administrative litigation of public interest. Among them, the environmental civil litigation of public interest, refers to a qualified citizen, legal person, other organization or the relevant state authorities, in order to prevent possible violating behaviors which are environmental pollution and ecological damage, or stop violating the environmental pollution or the vandalism proceed, or relief the damaged environmental public interest, take proceedings against those who caused the harm or damage, and the people’s court handle the case in accordance with legal procedure. However, it should be noted that environmental civil litigation of public interest only refers to the suit that protect and relief "the damage on environment itself", its extent is not include the group litigation which is to relief the most uncertain people’s personal and property damage.Environmental civil litigation of public interest has many features such as public-oriented purpose, breadth subject, diverse litigation types, unbalance power between the parties, special proceedings. Viewing from its function, environmental civil litigation of public interest could prevent the environmental problems, compensate environmental damage, promote the law enforcement, remedy the insufficiency of the administrative mechanism and justice mechanisms, form new rights, foster new environmental public policies and drive changes in society.Globally, substantial law base of environmental civil litigation of public interest is the environment right theory and theory of state ownership of natural resources, its procedural law base is the litigation trust theory, private prosecutor theory and new party suitable case theory etc.The second part is the reference theory of environmental civil litigation of public interest.Our country is lack of tradition of rule by law, legal transplantation is an important path to fulfill and promote our legal development. Therefore, from the perspective of the two legal systems, we could take an investigation into environmental civil litigation of public interest in the foreign countries, summarize the experiences, reveal its trend in the future, and prepare reference material for the establishment of China’s environmental civil litigation of public interest. Environmental civil litigation of public interest of Anglo-American law system is mainly consist of U.S. citizen litigation system, Britain informant lawsuit system and India’s letters jurisdiction and judicial investigative power. That of Continental law system is mainly consist of German group litigation, French civil lawsuit and Japan’s electoral lawsuit system. The differences between the two legal system are that countries of Anglo-American law system emphasizes pragmatism, they comparatively value personal rights protection, they give person and social groups extensive litigation rights to realize the maintenance of public environmental interest, and their system design is more flexible. Civil law countries mainly rely on public procurators to protect the environment public interests, the legal provisions are more conservative, and with rigid principles. Constrained by statute code, civil law countries suffer hysteresis in legislation, which lead to the slower development than common law countries. For example, even the quite famous German group litigation system is just litigation with public interest and aimed at resolving group dispute of self-interest in its essence. We could probably say that there is no real pure environmental civil litigation of public interest in continental law countries. Therefore, on the whole, the U.S. citizen litigation mode is most worth referring and studying.The third part is the justify theory of environmental civil litigation of public interest.According to the system formation theory, a system is established when the present system existing blank or it could not fully satisfy real need. Meanwhile, only by equipping with the subjective and objective conditions, can the system establishment realized smoothly. Therefore, we must examine and prove the formation mechanism of environmental civil litigation of public interest, namely, necessity and feasible problem.The necessity of the establishment is that under current legal framework administrative measure and judicial mechanism exist many limitations and the public participation mechanism is not really carried out, thus environmental public interest cannot get effective protection and relief. For instance, different degrees of limitations exist in scope of law enforcement, launch conditions of law enforcement, mandatory and authoritative, law enforcement function etc. As to the protection of environmental public interest, judicial mechanism also encountered many difficulties such as no accuser, unqualified plaintiff, the plaintiff abandon litigation, the plaintiff abandon environmental public interest and fail to initiate judicial proceedings. These difficulties lead to the judicial proceedings’"out of work".The establishment of environmental civil litigation of public interest is feasible for we already have a solid theoretical support, referential experience from other countries, current environmental legislation and some policies, the motive and experience for creation of environmental judicial system throughout the nation, abundant experiences in environmental civil litigation of public interest etc. For example, so far, China has established the 49 special environmental protection trial organizations, legislation of environmental civil litigation of public interest is in upsurge and the practices are under trial in many parts of China. The most delightful thing is that the supreme people’s court has issued a special judicial interpretation, this would undoubtedly greatly promoted the growth and development of our environmental civil litigation of public interest.The fourth part is the constitute theory of environmental civil litigation of public interest.Mode selection and system construction of our environmental civil litigation of public interest, on the one hand, should learn from the world about environmental civil litigation of public interest legislation and the advanced experience with a broad vision and open attitude. On the other hand, we must take a rational spirit and pragmatic attitude, focus on our own condition, establish an environmental civil litigation system suitable to China. From the plaintiff scale, we shall adopt the "multivariate "mode, namely allow citizens and organizations and the relevant state authorities to star environmental civil litigation of public interest. However, different types of plaintiffs should in different positions, that is, they should have a sequence. Specifically, as the holders of environmental rights, citizens should be place in first line as plaintiff. Environmental protection societies can also serve as plaintiff in first line by citizen trust or the principle of litigation trust. The environmental protection administration, including administrative department of environmental protection, governments and other departments related to the protection of resources (e.g., forestry, marine and fishery department, etc.), shall be in second line as plaintiff.The procuratorial organ will be taken in third line as "substitute", that is, when the plaintiff in first line is missing or failed to sue within a reasonable time, the plaintiff in second line is unfavorable or fail to star a suit within a reasonable time after prompt, procuratorial organ can act as the plaintiff directly to initiate environmental civil litigation of public interest, which will ensure the final safeguard of public environmental interest.The design of environmental civil litigation of public interest should be noted, to make sure the rules are formulated according to different plaintiffs. For example, the distribution of proof burden should be decided by the type of the plaintiff:social organizations and citizens should enjoy the burden of proof in reverse, while the environmental protection administration and procuratorial organ should implement the traditional principle "The burden of proof is upon the party who claims".In addition, while we are improving procedural regime, innovating mechanism of system, promoting environmental civil litigation of public interest, we should prevent the abuse of litigation, avoid the limited judicial resources being wasted. Therefore, we can take various measures, such as give priority to the administrative proceedings, set a 30 or 60 days prior notification procedure, let those who abuse the litigation bear tort liability etc.The fifth part is the coordination theory of environmental civil litigation of public interest.Environmental civil litigation of public interest has "path dependence" to traditional civil substantive rules and procedural rules, correlation or even conflict will happen during its operation. Therefore, how to ensure the coordination between environmental civil litigation of public interest and related policies and procedures and achieve more effective cohesion has became the problem we must face.Although there is significant difference between environmental civil litigation of public interest and private interest litigation, they should be the supplement and complement of each other. Environmental civil litigation of public interest and private interest litigation can be initiated at the same time, but their pleadings should not be in coincidence. Environmental civil litigation of public interest and private interest litigation based on the same cause should take mutual support in procedural and complement each other in effect.It is very likely that the procuratorial organ’s legal supervisor role will come into conflict with its role as plaintiff in a public interest lawsuit. So, when the procuratorial organ served as the plaintiff, legal supervision via protest should be avoided, the way to seek fair referee would be appeals, the application for retrial with the plaintiff’s concomitant litigation rights etc. Of course, if the environmental civil litigation of public interest is initiated by other subjects, the procuratorial organ can undertake the protest.There are differences between environmental civil litigation of public interest and litigation support, as well as urge to prosecute and representative lawsuit, but if utilized properly, more powerful blow will hit to the illegal environmental behavior. When facing the choices between environmental civil litigation of public interest procedure and civil urged prosecution procedure, if procuratorial organ take the former one better social effect will served.Environmental civil litigation of public interest and environmental administration has their own advantages, but in general they are in synergy. Setting prior administrative procedures in environmental civil litigation of public interest and correcting the illegal action by relevant departments can avoid higher cost of environmental public interest litigationIn order to run effectively, system of environmental civil litigation of public interest still need external related supporting system and measures of support and assistance. Let judicial system play an active role; establish environment court in some districts where conditions permitted; set institutions such as assessment and identification of environmental harm, environmental public interest litigation fund, environmental damage compensation insurance system; take root in national compensation liability for power organs’ "inappropriate litigation", all these will give a significant support to environmental civil litigation of public interest.