Research On Selective Prosecution In Environmental Civil Public Interest Litigation

With the amendment of the Civil Procedure Law of the People's Republic of China in 2012,civil public interest litigation has been formally incorporated into the law,although the research focus of environmental civil public interest litigation has gradually shifted from macro-system construction and plaintiff's appropriate identification to specific institutional construction,but there is still a lot of discussion about the plaintiff's subject qualification,which results a lot of duplication of research results.In the current situation where the plaintiff's subject has been clearly defined,this paper has taken a different approach and intends to reflect on the predicament of environmental civil public interest litigation from the characteristics of the defendant in the case.However,it should be specially pointed out that although the evidence presented by the empirical data contains a situation in which the court has not filed a case,it cannot be used to exclude the reason for the plaintiff's main body to choose when prosecuting.This paper takes the issue of selective prosecution in environmental civil public interest litigation as the research topic,starting from the characteristics of the defendants in the environmental civil public interest litigation case filed by the two types of plaintiffs of environmental protection organizations and procuratorates,collecting cases of environmental civil public interest litigation from the amendment of the 2012 Civil Procedure Law to the first quarter of 2018,based on research methods of empirical data analysis,supplemented by functional analysis,discussing the purpose of preventing selective prosecution in environmental civil public interest litigation and the adverse effects of selective prosecution on environmental public welfare in the situation of “those shall be prosecuted not being prosecuted”.On the basis of this,combined with the theoretical analysis of civil litigation rights,it is pointed out that the selective prosecution adopted by environmental protection organizations due to lack of sufficient prosecution incentives is “reasonable”,and the procuratorate lacks sufficient supervision mechanism and its duty of legal supervision in environmental civil public interest litigation,which carries out selective prosecution is “irrational” and gives different countermeasures for selective prosecution in two different situations.The thesis is divided into four parts:The first part is “Selective Prosecution Should Not to Be Ignored: Based on the Empirical Analysis of the Defendant”.Firstly,it introduces the basic theoretical issues related to the concept of selective prosecution,including the theory of civil litigation rights and the functional value of environmental civil public interest litigation.It provides a theoretical basis for discussing whether the selective expropriation of environmental protection organizations and procuratorates is reasonable.Secondly,it analyzes the evidence of the defendant in environmental civil public interest litigation of China,highlights the picture of the defendant in the environmental civil public interest litigation in China,and combines the chart and preliminary analysis to obtain the preference of the two types of plaintiffs.The results of the empirical data in the empirical summary indicate that the selective prosecution problem exists or the possibility of existing,so the issue of selective prosecution cannot be ignored.The second part is “Potential Risk of Environmental Public Welfare Relief under Selective Prosecution”.Based on the objective analysis shows that the selective prosecution's existence is objective,combined with the environmental public welfare relief should not be selected to point out the potential risks of selective prosecution for the current environmental public welfare relief,namely the environmental public interest litigation function value and the judicial credibility would be impaired when judicial relief is absent.The third part is “the 'Rationality' and Prosecution Incentives for the Selective Prosecution of Environmental Protection Organizations”.This part combines the civil public interest litigation right and the environmental protection organization as a "rational economic person" to explain that the environmental protection organization is "reasonable" for selective prosecution,and then provides countermeasures and suggestions for encouraging environmental protection organizations to prosecute.The fourth part is “the ‘Irrationality' of the Prosecutorial Agency's Selective Prosecution and Its Prevention”.This part combines the two aspects of civil public prosecution and the legal supervision duties of the procuratorate,pointing out the "irrationality" of the procuratorate for selective prosecution and regulating it.This paper aims to provide inspiring help for the improvement and development of environmental civil public interest litigation system through the analysis and research of selective prosecution in environmental civil public interest litigation.