Study On The Legislation Of Environmental Public Interest Litigation

On August 31,2012 modification of the "Civil Procedure Law" Article 55.because of environmental public interest litigation provisions in the legislation technical defects and quality, the implementation of 2013 was a fully-fledged late spring, as ACEF force of environmental public interest litigation filed, eight of environmental public interest litigation filed in the current year, but no court accepted together. Currently, But only three provisions of the main environmental public interest litigation filed just society organizations and the marine environment supervision and management departments, specific procedures, rules of evidence not involved, only in the form of legislation explicitly recognize the legal basis for environmental public interest litigation is still too principle, lack of maneuverability and Practicality. Because of legislative rough, can not be implemented, judicial interpretation can only break the "Legislation Law" provisions, which have interpreted the law too, can not meet the local judicial practice and exploration of enthusiasm, which makes environmental public interest litigation legislation, judicial interpretation and judicial practice step into conflict with each other, conflicting embarrassment."Civil Procedure Law" Article 55 and the "Environmental Protection Law" Article 58 stipulate the form of legislation of environmental public interest litigation system, in which the these laws have stressed the public interest, obviously, the use of generalization is defined in the legislative level way to determine the damage to the public interest in environmental public interest litigation object scope, its significance lies in the public interest to make the values to the legislative practice. However, due to limited legislative level, the public interest as a benchmark or cornerstone, although has been established in the legislation, but did not give a clear definition of what constitutes the public interest that criterion does not solve the problem, only to leave by judicial discretion or to be carried out after the environmental public interest litigation to define specific legislation dealing with cases. Therefore, the "public interest" as the logical starting point and keywords, types of cases, the scope of the case, the rules of evidence, the specific procedures set environmental public interest litigation in both the legislative and judicial want to define the public interest as the premise and foundation.The plaintiff qualification of legislation of environmental public interest litigation, ie who has the right to bring the issue to the court proceedings, a hot discussion in recent years, the community, the focus of the problem, but also for the legislature quite a headache, not sure yet tricky fit issue, therefore, plaintiff qualification of environmental public interest litigation is legislative primary problem, this section combines legislation, policies, legal practice and legal conduct multiple analyzes.2014 "Environmental Protection Law" provides only social organization may bring environmental public interest litigation, and eighteen Fourth Plenary Session’s "explore the establishment of the procuratorial organ filed public interest litigation system" and the 2012 "Civil Procedure Law" Article 55 provides blur and general qualifications of the plaintiffs are leaving a lot of space for further exploration. The plaintiff sued and the defendant respondent, the court referee and related auxiliary propulsion main environmental public interest litigation activities should be carried out around a certain object litigation, leaving the litigation object, the objectives and targets of the main activities of environmental public interest litigation will be lost. Environmental public interest litigation cases to determine the scope legislation, corporate, civic, environmental protection departments in the production of major decisions in life and the environment, on environmental rights could be exercised on a certain boundary, crossed the border, will become a defendant. Based on the basic stance to protect the public interest, legislation of environmental public interest litigation by political philosophy, jurisprudence, human ethics, economics should be used as the basis of its theoretical value basis; the practice of environmental public interest litigation, the promotion of social governance innovation, optimize environmental dispute settlement mechanism reshape transition environmental values and ethics as the basis of its real value. Considering the limited judicial resources, it is necessary to prepare for the current departure from selfishness and legislation of environmental public interest litigation setting undue obstacles, but not the correct view to be alert triggered by environmental public interest litigation legislation impulse, rational allocation of resources, litigation, effective Local control of the judiciary is not uniform non normative documents, improve its quality;Litigation of Environmental Public Interest is the foundation and starting point of Environmental Public Interest Litigation rule of good law and good governance. No scientifically sound environmental public interest litigation legislation, it is difficult to have a fair and efficient environment to force justice and rule of law of environmental public interest litigation. But on environmental public interest litigation laws of only three terms; there are many technical problems in legislation, legislative hearings, legislative assessment, but also just the legislative practice of environmental public interest litigation preliminary exploration, science and the environment from the real public interest litigation legislation on the road there is a considerable distance. Guiding ideology of China’s the legislation of environmental public interest litigation is "with Chinese characteristics, Chinese style, reflecting the characteristics of Chinese era legislation." "With Chinese characteristics", requiring environmental public interest litigation legislation must proceed from China’s national conditions, from reality, the law requires that legislation must reflect the special nature of China’s national conditions. "Chinese style" demanded a written code of traditional Chinese forms, stick to the basic position of Chinese litigation culture, built on the basis of cultural and ideological gene "Heaven" on the harmony between man and nature, and to highlight the global the development trend of environmental public interest litigation relief and cutting-edge issues, legislation of environmental public interest litigation has its own unique charm and character. "Embodies the characteristics of the times China’s" demanding the legislation of environmental public interest litigation must adhere to the spirit of the new era of China is still in the primary stage of socialism and the beautiful nature of Chinese ecological civilization construction, concrete system, procedural rules must reflect the characteristics of the times, in line with the objective law of development of environment public interest litigation, we can not go beyond the conditions of social reality excessive "advance", can not disregard the social and economic development and lead to "lag." The principles of legislation of environmental public interest litigation reflects its objective laws and requirements of practical reason, which is different from all the principles common to observe the legislative proceedings, but both contain some common elements of traditional three legislative action, but mainly they are the specific principle to legislation of environmental public interest litigation, these principles for the enjoyment of the national legislative and judicial interpretation of various types of bodies have general guidance and binding.Legislation of environmental public interest litigation by the basic theory, practice and reality-based, legislative model, the legislative purpose, values and principles of legislation more systematic study of various related systems, we can draw the following conclusions:First, the nature of legislation of environmental public interest litigation should be located in a separate lawsuit types. On the one hand, most environmental public interest litigation Although initially affiliated to "Civil Procedure Law", "Administrative Procedure Law," and even the "Environmental Protection Law" and other environmentally related laws among the provisions of the current legislation is only one type of Environmental Civil Public Interest Litigation, But currently the major countries in the world as well as the rule of law in our country’s judicial practice has exceeded this single type, environmental administrative public interest litigation and environmental criminal with civil public interest litigation has also sprout growth. Therefore, environmental public interest litigation in environmental and social public interest for the object of adjustment, has not been a traditional three procedural law can cover. On the other hand, in terms of the theoretical basis of legislation, the legislative purpose, legislative guidelines, legislative principles, the environmental public interest litigation legislation is different from the traditional three procedural law, whether civil procedure law, or the Administrative Procedure Law and Criminal procedural law, we can not just be a separate chapter or a knitting bag into which, otherwise, will not help to promote the practice of environmental public interest litigation process. Therefore, environmental public interest litigation can be used as separate from the three procedural law of the fourth type of procedural law.Second, the environmental public interest litigation need special legislation. First, China’s current environmental pollution and ecological damage growing, based on the party and the country’s economic development and environmental protection of the dialectical understanding, only GDP Heroes coming to an end, the coordinated development of the two trends have been very clear, but the lack of effective legislation (heavy litigation Relief "Civil Procedure Law" and the "Environmental Protection Law" and its judicial interpretation is still too single, unbearable environmental public interest) workable law, which led to environmental pollution and ecological destruction growing. Secondly, the particularity of environmental public interest litigation requires special legislation, such as plaintiff qualification, damages objects, burden of proof, the referee method, liability method, execution methods.Third, legislation of the environmental public interest litigation should be a comprehensive law. The law should include both procedural specification also includes substantive law content; both the essence of fusion of civil, administrative criminal procedural law, and its unique blend of the normative content of the law of evidence; only cover three Proceedings Act liability approach, and innovative development of the ecological rehabilitation of the referee and implementation, but also related to civil liability, administrative responsibilities, such as the relationship between criminal responsibility.Fourth, based on the previous studies, the author study out the initial draft of the legislation of environmental public interest litigation.In summary, this paper builds on to explain the legislation of environmental public interest litigation as objectives and specific legislation in order to build the theoretical system of environmental public interest litigation and legislative mode in the Context of China, provide for the construction of environmental public interest litigation current Chinese law theory and support a legislative framework, trying to be able to develop a system to improve and with Chinese characteristics in China, the Chinese style, reflecting the Chinese characteristics of the times, "Environmental Public Interest Litigation" do modest means. However, the legislation of environmental public interest litigation, not only to reflect the reality of the society and rule of law in China’s economy, but also to reflect existing law and cultural traditions of the Chinese nation, but also to reflect trends in international environmental legislation; not only to reflect the realities of China’s legal demands, but also to reflect the degree of recognition to improve the quality of its legislation with the community. Of course, this research is only preliminary, right when the lead jade tiles, hoping to attract more of academia, legislative circle, practitioners and colleagues focus on the legislative issues of environmental public interest litigation, will be devoted to environmental public interest litigation to push legislation as soon as possible on the legislative agenda of the NPC and its Standing Committee, to further promote the breakthroughs of the rule of law of environmental public interest litigation in the research of basic legislative theory.