Research On Environmental Public Service Lawsuit In China

Since the 1960s', the deteriorating eco-environment has been widely concerned by international society. Environment incidents have frequently threatened and impaired the safety, health and property of the general public. The environment-related cases have increased drastically, giving the rise to a urgent need for the protection and remedy of relevant law. As a new social conflict, the objects and subjects of Environment disputes are uncertain, and the causes of it are more complex compared with the other kinds of disputes. Given the current situation in china, the present environment proservation mechanism do not function well and fail to provide the efficient protection and relief for the environment benefit of citizens, hence, the establishment and improving of the public environment protection mechanism are imminent.This dissertation consists of the following four partsPart 1Environment public interest litigation originated from the US Clean Air Act (CAA), and was adopted widely by the EU, Canada, Australia and etc. It is litigation against relevant civil subjects, government agencies introduced in a court of law not by the aggrieved party but by any other private party including citizens, enterprises, public institutions and social organizations according to related law, which's aim is to protect the environment interest when there is a damage or potential damage to environment. environment public interest litigation consist of three categories:Civil environment public interest litigation, administrative environment public interest litigation and criminal environment public interest litigationEnvironment public interest litigation has the following characters:1, it is for the public interest. It focuses on the public interest and human right, representing the common will and demand of the general public.2, the range of litigants is uncertain and broad, including common citizens, government agencies, the staff of such agencies.3, it does not set actual damage as a pre-condition for the proceeding and thereafter obtaining a verdict. The environment laws in china are mainly substantive laws, there is no specific procedure for environment public interest litigation, it applies civil, administrative and criminal according accordingly in certain litigations. As for the substantive law, the environment right, which is the theoretical basis of the environment public interest litigation, is not explicitly provided either in constitution or other environment-related legislations, and this causes the hardship to build up the Environment public interest litigation in china.Part 2Since 1970s, the theory and practice of environment right have experienced two culminations. Now, the content of environment right has appeared on the constitutional or comprehensive laws of the majority countries in the world. The development of environment right is one of the theoretical bases for environment public interest litigation. The Establishment of environment public interest litigation, empowering the general public the right to sue, will enhance the supervision of environment. It is also an important way to push forward the participation of the public into the sustainable development, which is part of strategy for china. The environment public interest litigation will resolve the issue about how to prevent the happening of those environment incidents and how to provide remedy in case of those incidents. Generally, there are no rights to sue where there are no interests under the traditional procedural principle. according to traditional theory, the interest of a litigation is the necessity of getting remedy through litigation when one's right was violated or when one is in a disputes, therefore, there is a foundation for the citizens to bring an action in court in case of environment interests are damaged.Part 3The United States is the first country in the world to create the environmental citizen suit and its experiences in this field will surely promote the development and innovation of the system. Globally speaking, due to its relatively sound legal provisions and a wide range of legal practice, the US environmental laws in citizen suit has long been prototype of the environmental laws in citizen suit and public interest litigation. The UK is relatively conservative in its environmental public interest litigation. Up to now, much remains to be done if the public intend to preserve the environmental through judicial means. In Germany, the environmental public interest litigation is in the form of group litigation. In the 1950s-1960s Japan, the public hazards were very serious and the solution to this problem was hazard control. Therefore, Japan's environmental public interest litigation is primarily administrative litigation. Foreign experience of the environmental public interest litigation is worthy of reference for china.The constitution provides the constitutional basis for the formation of environment public interest litigation in china. The environment law presents the precondition for this system. The administrative procedure law gives some legislative foundation. In terms of the environment public interest litigation in china, firstly it should broaden the range of environment damage. Secondly, it should entitle more citizens and other social organization to sue.Through the clarification of the subject, range of the environment public interest litigation, we will provide the feasible designing of mechanism for environment public interest litigation and give environment public interest litigation the legal guaranty. Environment public interest litigation is the effective channel for the public to take part in the environment preservation. The policy will push forward the development of environment public interest litigation in china. The legislation should be specific, clarifying the main channel and way for the public participation, including the net participation, questionnaire etc, in order to encourage the public take initiative to get involved in the legislation. Environment public interest litigation should apply different approach in terms of the litigation cost and the allocation of benefit of winning because this kind of litigation are mainly for the public interests, And the civil action and administrative action should provide incentives as well. In case the waste of judicial resources by malicious action, there should a preset procedure to guarantee the health development of environment public interest litigation, and the pre-administrative scrutiny system are one of those options...All in all, establishing the environment public interest litigation according to the current situation in china is necessary and feasible. Some courts have started the relevant reform and practice though the relevant legislations lack behind. The courts have lowered the threshold for plaintiff in those cases, and environment public interest litigation has come into our judicial practice. In the background that the global environment is deteriorating, establishing environment public interest litigation system according to the reality in china through legislation and strengthening the environment preservation are very important for the sustainable development of Chinese society and the formation of harmonious society. The research of this dissertation will deepen with the gradual development of the environment public interest litigation.