On The Defendant In Environmental Administrative Public Interest Litigation

The defendant of environmental administrative public interest litigation refers to the administrative subject who is specifically authorized by laws and regulations to assume the responsibility of environmental protection supervision,and who is sued to the court for legal responsibility by the authorized subject for his own administrative act infringes on the public interest of the environment.According to the current law,it includes people’s government at all levels and the government functional departments responsible for environmental protection supervision and management.Through the statistical analysis of fifty judicial cases of environmental administrative public interest litigation in recent five years in China,it is found that the defendants in environmental administrative public interest litigation have distinct characteristics.First,the people’s governments being sued are all township level.Secondly,the accused government departments are not limited to the ecological environment departments.Third,the areas of litigation are relatively concentrated.Finally,most of the reasons involved in litigation are administrative omission.China’s current relevant laws do not make targeted provisions for environmental administrative public interest litigation defendants related issues.However,simple application of the general provisions of the current law can not meet the actual needs of judicial practice.Under the guidance of power supervision theory,administrative action theory,litigation benefit theory,risk prevention theory.Through the analysis of cases,it is found that in the judicial practice of environmental administrative public interest litigation,there are some limitations such as the confusion of the qualification of the defendant,the unclear scope of the lawsuit,the burden of proof of result-oriented is too absolute,and the lack of pertinence in the way of bearing the responsibility.Specifically speaking:the defendant’s responsibility and authority is not really clear and there is no corresponding matching,normative documents not included in the scope of judicial review,not enough attention of preventive illegal administrative behavior,completely based on the result of evaluation the role and behavior of the practice reflects the burden of proof assigned to the defendant remains to be clarified,judgment of the defendant’s responsibility means lack of timeliness,pertinence.By referring to the relevant legislative and judicial experience of the United States,Germany and China Taiwan region,the government is clearly identified as the defendant,the types of behavior accused are listed in laws,the standard of proof is reasonably demarcated.Combining with the actual situation of our country,it is suggested to improve relevant system of environmental administrative public interest litigation defendant from the following aspects:first,clarify the power subject and duty content in the form of law,and match the legal responsibility.Secondly,abstract administrative behavior,preventive illegal administrative behavior is included into the scope of environmental administrative public interest litigation,while violation behavior is excluded from the scope of litigation.Third,the burden of proof is assigned to the defendant in progressive way,and the legislation provides that the defendant can prove the exemption cause.Finally,the ways and circumstances for the government to assume legal responsibility for ecological restoration are clarified,the system of environmental protection injunction should be introduced,the individual accountability mechanism of officials should be improved,and the legal accountability of specific responsible persons should be strengthened.