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Theoretical Discussion On The Establishment Of Environmental Citizen Suit Institution In China

Posted on:2006-09-04Degree:MasterType:Thesis
Country:ChinaCandidate:L PengFull Text:PDF
GTID:2166360182467309Subject:Environment and Resources Protection Law
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Environmental citizen suit in America, as one of litigation institution for commonweal, has profound influence on the development and implementation of America environmental law. The most prominent feature of environmental citizen suit in America is realization the goal of maintaining and safeguarding the environmental commonweal through supervising administration execution and remedying its deficiency by citizen in virtue of the judicial power. Supervising and urging the administration apartment to correct its mistakes and execute the law positively is the first and main means of protecting the environmental commonweal, and correcting the behaviors of enterprises to pollute and destroy environment and the nonfeasance of administration department by litigation is the second and supplementary means of protecting the environmental commonweal. Jurisdiction is an effective power to deter and supervise administrative authority here, which is core of citizen suit. The author thinks we can import the institution of citizen suit to mitigate the damage to environmental commonweal in China.This dissertation consists of four parts. Part I :Summarization to citizen suit institution. This part introduces the concept, attribute, characteristic of citizen suit institution, the direct and ultimate intention to found it and basic issues, such as the theoretical base and institutional value, related to it, which is the deep analysis and consideration to the citizen suit institution itself, moreover, is the base work for us to discuss it later.Part II :Reviewing the institution of citizen suit in America and Taiwan. This part includes contents in two aspects, one is reviewing and appraising the origin and actuality of citizen suit institution in America, the other is reviewing and appraising the origin and actuality of citizen suit institution in Taiwan. After reviewing the origin and development of citizen suit institution in America and Taiwan under different legal chain, not only can we have a completed and clear comprehension to this institution, but also find that the establishment of citizen suit institution depends on the instant requirement instead of legal chain and social background, which make it is possible to build up the institution of environmental citizen suit in China.Part IH:The necessity and feasibility of using the citizen suit institution for reference in China. The necessity and feasibility of using any institution for reference is a issue have to be resolved, otherwise, the reference to an institution will be failed for the reason of lack of legitimacy and rationality. This part includes contents in two aspects. The first aspect is on the necessity. The necessity of using the citizen suit institution for reference in China bases on the following reasons: the institution of citizen suit can relive and protect environmental commonweal effectively; the institution can balance the interests between the weaker and the stronger; no law and statute have stipulated the institution of citizen suit in China; the measures for relief in the present litigation law can not meet requirements for protecting environmental commonweal; the difficulties to stipulate environmental right in substantial law leaves the space for adopting the institution of environmental citizen suit in procedural law; the limitation in environmental management system in China at present and the institution of citizen suit can enrich the measures of environmental management and remedy the deficiency of executing the law by public department. The second aspect is on the feasibility. The author chooses several aspects below to analyze: the consideration to social and political background for introducing the institution of environmental citizen suit; the consideration to mechanism of public participation; the consideration to the role and function of court; the consideration to efficiency of administration department; the consideration to cost of protecting the environment; the consideration to the functions of environmental NGO.Part IV: Ideas on establishing the institution of environmental citizen suit. This part consists of four chapters. Chapter one: the premise of establishing the institution of environmental citizen suit. Ensuring the public access to information instantly and equally, amending present civil and administrative procedural law partly, and providing a less stringent examination system for the foundation of environmental NGO are the previous questions should be resolved before establishing the institution of environmental citizen suit.Chapter two: the principles of establishing the institution of environmental citizen suit. For the reason that public, courts, enterprises and administration department are all involved in the institution of environmental citizen suit, the principle of corporationbetween them is necessity. In addition, the principle of economical efficiency should be taken into consideration during the establishment of any institution.Chapter three: the consideration to orient two groups of relationship. There are dispute between scholars and practitioners to many issues about citizen suit institution after its establishment, which is still developing. In addition, there are no final conclusion to the relationship between citizen suit and administrative execution, and the relationship between jurisdiction and administration execution in citizen suit. The author advances her viewpoint about the two relationships: only if administration department does not execute the law, we should resort to citizen suit, whose function is supplement to administration execution; the basic function of court should be transformed from resolving civil dispute and avoiding trespass by administrative power to personal rights and property, to protect the interests of majority and supervise the whole process of exercising administrative power. Furthermore, the courts not only should supervise whether the administrative behaviors are legality, but also examine the process of making a decision, which should be made in a fair position, by administration department.Chapter four: the ideas about establishing concrete institution of environmental citizen suit. From macroscopic view, several tasks has to be done: a perfect judicatory system, which brings the institution of citizen suit into itself, for environmental commonweal should be built up; clauses about citizen suit should be stipulated in present single environmental protection law gradually; promoting the institution of environmental citizen suit to be stipulated in law in virtue of judicial interpretation by the supreme court.From microscopic view, the author tries to arrange the establishment of environmental citizen suit institution from the aspects of qualification for plaintiff, category of litigation, reasons of indictment, indictable scope, jurisdiction of court, measures for confine, contents of verdict, and the distribution of retaining fee and legal fare.
Keywords/Search Tags:environmental citizen suit, commonweal litigation, environmental commonweal, qualification for plaintiff, measures for restriction
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