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Analysis Of Individual Environmental Public Interest Litigation System

Posted on:2015-10-07Degree:MasterType:Thesis
Country:ChinaCandidate:W C XuFull Text:PDF
GTID:2296330422485077Subject:Economic Law
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Environmental protection is the survival problem of global coming issue. Environmentallaw is not only a national legal requirement, but also encluding the direct relation with eachnatural person. The establishment of environmental right to resource and environmentalprotection in China is a basis for law enforcement in the basic law, but to implement therequirements of environmental rights, requires surportting measure, which is environmentaljudicial power. One of the basic principles of environmental judicial power is publicparticipation, and the status of the individual participation in environme ntal public interestlitigation, it has not been confirmed on the legislation. Chinese environmental public interestlitigation first established environmental courts in2007, Guiyang City (now renamedecological court) nationwide have been practiced, most scholars believe it should be given tothe plaintiff qualification of individual citizens, but the new revised "Civil Procedure Law"stipulates the legal body tissue only has the qualifications of the plaintiff, but not theindividual citizens.Speaking of the origin of individual environmental public interest litigation, we have tostart from the analysis of individual public interest litigation. In the Rome times, there was a"public litigation" system, on this basis, Germany, France and other countries of continentallaw system and the development of the typical evolution of the system, the personal statuswith their own characteristics are different degrees of restrictions. In common law, a personalinterest litigation, can be traced back to the thirteenth Century British common law "relatoraction" system, this system finally led to the abuse of litigation because of the rewardproperties, eventually forced the authorities to remove individual plaintiff qualification fromthe legislation, and the right is endowed with the attorney general. America transplant "relatoraction" system, on the basis of development by twentieth Century to establish "citizenlitigation" system, made the public trust theory into the environmental public interestlitigation; the individual person got the affirmation of the legislation on environmental publicinterest litigation. The rest of the world followed American practices, established theenvironmental public interest litigation, and give the person the plaintiff qualifications. InTai’Wan it also established the environmental administrative commonweal litigation system.In China, people do not get the support of legislation, there is accepting difficulty; comparedto developed countries’ environmental technology, professional is far insufficient, the main controversy over the course of the trial is the environment appraisal conclusion; in thesubstantive law of adjudicative document, the judge can not effectively choose specificenvironmental law, still using the principle of civil law to argue. The development of thesepractical problems hindered the environmental public interest litigation, one of the mostimportant obstacle is the individual does not have the right to make a charge, environmentaldisputes can not enter the judicial process.Whether the individual has the environmental public interest litigation plaintiffqualification, theorists have different views. The negative person standing point of view, fromthe procedure qualification of plaintiff principle analysis, that the individual does not conformto the plaintiff qualification of the civil procedure law and administrative procedure law, itshould not give people the plaintiff’s qualifications. However, this analysis clearly separatedfrom the theory of economic law. There are scholars from a narrow point of the subject ofpublic interest litigation, think our country has stipulated the prosecution of public interestlitigation subject to statutory organizations, these organizations can fully collective action onbehalf of an individual, and then give the plaintiff qualification person completelyunnecessary. This view can weaken the rights of individual citizens; practice is not conduciveto the principles of public participation in environmental jurisdiction. The plaintiff againstindividuals become the most common view, which is the personal abuse of litigation concerns,however this does not become a theory.The accused person whether to have the qualification of the environmental publicinterest litigation, theorists have different views. Most scholars believe that the impact on theenvironment caused by the degree of the individual is very weak, negligible; the authorobserved the foreign environmental public interest litigation provisions, without exception,will the government as the only defendant; and scholars from the administrative procedurelaw theory, that the individual as the defendant does not conform to the principle of theadministrative relative person. However, the denial opinions are more or less from a lawperspective, not seeing environmental law as a social law, itself contains civil, administrative,criminal three attributes, in environmental public prosecution, above all the environmentalcrime, the individual as the defendant has been recognized in the civil legislation,environmental disputes as a defendant, the individual is not in doubt.Personal environmental public interest litigation procedure and civil, administrative,criminal proceedings are different. It has its particularity. In the prosecution and admissibilitystage, personal qualification is needed by the review, to the individual plaintiffs and thecollective litigation plaintiff distinguish, content also needs to review the prosecution, the lawsuit shall be determined according to the nature and scope of the plaintiff demands; in thecase of acceptance, is also different from the only need to confirm the three procedural lawrelation, which needs to have specific environmental technology. In the trial stage, allocationof burden of proof will be generated, that the defendant bear the burden of proof, which isdetermined by the environment infringement of no fault principle decision, the individual asthe defendant’s case should follow the general principle of "the one who advocates shouldburden". At the same time, because of environmental public interest litigation has the publicwelfare, trial should be open to show authority, mediation as an important system of litigation,in environmental public interest litigation shall also apply, which can make the environmentalissues to be dealt with as soon as possible, but it should be set up environmental problemswhich can not adjust to highlight its principles and general mediation difference. In the rulingperiod, due to environmental responsibility’ certain public welfare, the decision must involvea dual responsibility, namely, civil liability and responsibility. A person charged in legal fees,can build the social fund to support. In the sentence, it shall be specified for the benefit ofenvironmental law, ownership decision should be based on the validation of public andprivate balance situation. In the execution stage, will inevitably have negative performance, toenforce the application because the public welfare should be phased to give the publicdifferent individuals have the right to apply for. Because of the complexity of the executionenvironment, it needs to set up special environmental executive to technically support theexisting major difficulties.The Individual confirmation litigation qualification is the biggest obstacle to theenvironment public welfare lawsuit to the judicial process, only when the door is open can itprevents the emergence of zero case rate. The establishment of the specific program designand specialized agencies followed by is supporting environmental litigation of assurance, andfinally to environmental literacy and constantly improve the environmental court, talents andrealistic environmental standards, the correct response to the environmental lawsuit, judicialpower to environment truly the principle involved in the practice of the public.
Keywords/Search Tags:Environmental public interest litigation, Individual qualifications, Plaintiff, Defendant, Procedure
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