On The Limitation Of Mediation In Environmental Civil Public Interest Litigation

Environmental Civil Public Interest Litigation has played an active role in resolving modern disputes.Different from the general Civil Litigation,the non-direct interested person in this system displacing the social public becomes plaintiff to bring the lawsuit,which no longer represents the private interest but the environmental social public interest.It means the plaintiff has limited substantive rights to dispose of rights.The environmental social public interest is integral and indivisible,with strong uncertainty,but also a public goods characterized by externality.The exercise of the right of mediation involves the substantive rights and obligations,which means that the parties to the mediation have a compromise and concession in terms of the substantive rights and interests,so the parties shall be subject to the purpose of maintaining the environmental social public interest in the exercise of the right of mediation.On the one hand,the plaintiff has limited legal rights and interests in this system,and on the other hand,the environmental social public interest is a whole indivisibility.However,the current basic Law legislation is too principled,non-basic Law rules are not perfect,the restriction of environmental civil public interest litigation mediation is absence,and therefore in practice the system has exposed many problems,So,it is necessary to restrict the mediation of environmental civil public interest litigation.The process of mediation is essentially a process of agreement reached by both parties,while the process of limiting mediation is a process of restricting consent.And from the inherent aspect when they came into agreement the parties concerned requires consciously abiding by laws and regulations and forbidden damaging the public interests of the environment and society.From the external aspect,the process needs to intervene,supervise.Then,the supervision comes from the judicial power.From the point of view of substantive,the content that the parties agree to is the content of the mediation agreement,which is mainly manifested in the establishment of the mode of responsibility bearing,the subject of performance,the time,the way and the standard of performance,which are all related to the implementation of the maintenance of the public interest of the environment and society.Therefore,appropriate restrictions should be imposed instead of letting the parties to agree freely.From the point of view of procedure,the mediation of Environmental Civil Public Interest Litigation needs to be restricted by the time of initiation,the examination of mediation agreement and the openness of mediation.Except the preface,this paper is composed of four parts:Part one is the theoretical analysis of limitation of mediation in Environmental Civil Public Interest Litigation.The connotation of limitation of mediation is using the jurisdiction power to intervene and supervise the agreement between the parties,which is different from the rules of the prohibition of mediation in general civil procedure.The principle of public interest intervention and the restricted application theory of the principle of disposition provide fundamental basis for limitation of mediation.The system from the point of procedural justice and substantive justice has played an active role.Part two is the problem of mediation without limitation in Environmental Civil Public Interest Litigation.The following problems exist: the mediation agreement content is not standardized,the starting time of mediation is not clear and the mediation public procedure exists loopholes.Part three is the causes of the problems under the absence of restriction of mediation in the Environmental Civil Public Interest Litigation.It is because the basic law of Environmental Civil Public interest Litigation is too principled and lacks the regulation of mediation of Environmental Civil Public interest Litigation while the non-basic Law rules aren’t perfect and have not yet been systematized,and the value of legal provisions is not high.Part four is the specific measures to limit the mediation in Environmental Civil Public Interest Litigation.Uses the principle of limited mediation and the principle of mediation publicity to reconstruct the principle of limiting mediation in Environmental Civil Public Interest Litigation.Aiming at the normative problem of the content of the mediation agreement,from the perspective of typification,clearly define the limit of mediation in the Environmental Civil Public Interest Litigation in line of different types of Environmental Civil Public Interest Litigation request.From the angle of procedure,it regulates the initiation time of mediation,the review of the content of mediation agreement and the publicity of mediation.