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Environmental Public Interest Litigation Plaintiff Qualification

Posted on:2013-01-04Degree:MasterType:Thesis
Country:ChinaCandidate:W Z YuFull Text:PDF
GTID:2246330374465178Subject:Environment and Resources Protection Law
Abstract/Summary:PDF Full Text Request
With the rapid social and economic development, especially the accelerated process of industrialization and urbanization, people are more and more depending on the environment resources; due to uncontrolled exploitation and utilization, environmental contradictions are becoming increasingly acute. Although China has built environmental legal system, it is a product of the eighties of the last century, which cannot fully meet the new expectations of the masses of the people in the new era on the environment; especially for the frequent serious environmental pollution accidents in recent years, and the severe abuse of public environment interests without effective relief. The protection model which relies solely on the existing legal provisions and administrative power to "fight alone" has been significantly a lack or deficiency, and also shackles various forces to participate in environmental protection, which makes environmental protection encounter a very embarrassing situation:on the one hand, the number of promulgated and implemented laws and regulations on environmental protection increases year by year; on the other hand, the environmental conditions are deteriorating year by year. There are many reasons for this passive situation, but the absence of legislative-in particular, not establishing environmental public interest litigation system is undoubtedly one of the reasons not to be ignored. This requires that we must take effective measures as soon as possible to construct environmental public interest litigation system in line with China’s national conditions, and form a wide range force in the field of environmental protection, to face difficulties, resolve the conflicts and safeguard the state and public environmental rights and interests together.The first problem of establishment the environmental public interest litigation system is the qualification and priority of the plaintiff, which has been a long-standing debate. What or which subject should have the qualification of the plaintiff, and can effectively prevent pollution, increase wealth of society, safeguard the public’s environmental rights and interests? This is the focus of this paper. This paper shall base on the economic analysis law and system theory law, in summing up the domestic existing theories of environmental public interest litigation, draw lessons from foreign mature experience, and construct China’s environmental public interest litigation plaintiff qualification legal system according to the actual demand of this stage.In addition to the introduction and conclusion, this paper is divided into five chapters:The first part, summary the theories related to the environmental public interest litigation plaintiff qualification. Public trust theory, private attorney general doctrine, and theory of the environmental rights, not only provide theoretical basis for the environmental public welfare plaintiff with litigation right, but also provide premise for the relaxation of environmental public welfare litigation plaintiff qualification, and reduction of the judicial review threshold. These theories play a linking role from the natural right, vested right to actual right of environmental litigation right, mainly displays in:firstly, safeguard the realization of rights and firm the right system; secondly, promote the generation of specific rights and self-improvement of the entire right system.The second part, analyze current situation of China’s environmental public interest litigation plaintiff qualification. First of all, introduce the plaintiff range of normative documents; secondly, introduce the judicial practice, on the one hand, overview the cases occurred in recent years and introduce the typical cases of various kinds of plaintiffs case; on the other hand, sum up all the main problems from the existing practice.The third part examines the foreign environmental public interest litigation plaintiff qualification of the typical state.Covers "any person for the plaintiff’,"social groups for the plaintiff’,"the procuratorial organ for the plaintiff’,"environmental protection administrative department for the plaintiff" and "person to report for the plaintiff’, on this basis, omnibus give foreign mature experience to China’s environmental public interest litigation plaintiff qualification system draw lessons from a meaning.The fourth part focuses on the author’s environmental public interest litigation plaintiff qualification system, which is the core of this article. The paper put forward the core idea: according to actual conditions, extensive Procurator, the environmental protection administration, civil and society groups should be given environmental public interest litigation plaintiff qualification, to solve narrow-minded questions of the interests of each principal representative, with having characteristics of representing public interests. By analyzing and comparing the four subjects through the law and economics theory, We conclude that:the environmental protection administration department is the optimal choice of environmental public interest litigation plaintiff qualification, Protectorate is the second actor choice, citizens and social groups is the other choice, making full use of their existing resources advantages to achieve maximum environmental protection benefit with minimum investment.The fifth part is the system design on the four subjects as the plaintiff sues. Prosecution system design will be synthetically considered, combined with the current law of our country, from the scope of prosecution, litigation status, allocation of burden of proof, lawsuit cost, compensation allocation and misuse of litigation prevention and other aspects, the administrative department of environmental protection, the inspecting organs, citizens and social groups these four subjects will be respectively made institutional arrangements, combining national power and social power organically, which not only can guarantee the fairness and efficiency, but effectively protect the public environment rights and interests.
Keywords/Search Tags:public product, environmental public interest litigation, standing to sue, LegalEconomic
PDF Full Text Request
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