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On The Reasons Why Authorities Are Improper Plaintiffs Of Environmental Public Interest Litigation In China

Posted on:2013-10-06Degree:MasterType:Thesis
Country:ChinaCandidate:W X JiaoFull Text:PDF
GTID:2246330371980405Subject:Environment and Resources Protection Law
Abstract/Summary:PDF Full Text Request
As a start, the article discusses the plaintiff qualification of environmentalpublic interest litigation. In the first place, the environmental public interest is thecommon good which would be enjoyed by the natural person alone. Second, byanalyzing and discussing the value of environmental public interest litigation, thewriter thinks that the differences between environmental public interest litigationand civil tort action for environmental damages indeed exists. The environmentalpublic interest litigation is conducted to prevent and remedy damages to theenvironment per se, and to preserve and promote the environmental public interest.However, the civil tort action for environmental damages is conducted to remedydamages for personal injury and property. On this account, the environmental publicinterest litigation is the logical corollary of protecting the environment through theagency of lawsuit which is the method of right relief. At last, the writer sums up themain points that why some researchists insist that procuratorates and environmentaladministrations are proper plaintiffs of environmental public interest litigation.From the point of views based on intrinsic attribute of power, the articleelaborates that authorities are improper plaintiffs of environmental public interestlitigation. First, conception of power in this text is identical with context of power inlegal philosophy. In term of intrinsic attribute, power is either legal right orobligation. The writer analyzes intrinsic attribute of power by means of discussingthe relationship between power and right as well as power and obligation. Powerderived from right, power serves right. Since authorities have no right to abandontheir powers, obviously that the intrinsic attribute of power is legal obligation.Second, power is prescribed by law, but authorities haven’t been authorized yet.Distribution of powers is the key problem of constitutionality and constitutionalism.Intrinsic attribute of procuratorates exists some unique feature. Prosecutorial poweris ranked with executive power and adjudicative power. The procuratorates shouldsupervise judicial activity and make a public prosecution for environmental damages,not including make an environmental public interest litigation. The scope, means of performance and enforcement process of power are all prescribed by law, theenvironmental administrations couldn’ t change them neither abandon them. At last,power is inclined to dilate which would threaten or encroach on right or anotherpower. As supervision and limits of power being invalid, it’s difficult to judgewhether authorities are protecting the environmental public interest, encroachingrights of the plaintiff or defendant of environmental public interest litigation. If bothprocuratorates and environmental administrations have the power to make anenvironmental public interest litigation, conflict of function of power owned bydifferent authorities would be inevitable, yet procuratorates could supervise judicialactivity without dispute.From the point of views based on positivist characteristic of power, the articleelaborates that authorities are improper plaintiffs of environmental public interestlitigation. First, natural justice and reason is vital for positivism. The public shouldput a high value upon the record of authorities during them exercising theirfunctions and powers to preserve and promote the environmental public interest.Second, by analyzing the practice in France, Germany, Britain and America, thewriter thought that the authorities make an environmental public interest litigationhasn’t been the general practice. We shouldn’t copy the legal system of Britain andAmerica on assumptions. At last, the writer analyzes the reasons why administrativeenforcement of law is restricted, and points out that since procuratorates andenvironmental administrations are in the same boat, procuratorates couldn’t salvagethe defects of environmental administrations.
Keywords/Search Tags:Environmental Public Interest Litigation, Plaintiff Qualification, Authorities, Procuratorates, Environmental administrations
PDF Full Text Request
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