| In recent years,with the increasing attention of the society to environmental protection,people have found that it is possible to prevent the occurrence of environmental damage by asking the responsible person to assume the preventive responsibility.The main forms of responsibility include stopping the infringement,removing the obstruction and eliminating the danger.Preventive responsibility way is the reflection of the precautionary principle in tort law,preventive responsibility way can do prevention,its environmental protection should be more significant than later compensatory liability,but preventive responsibility of resistance function failed to give full play in judicial practiceBased on the current situation that the judicial practice and academic theoretical research of environmental damage are insufficient,this paper conducts empirical research on the preventive liability of environmental civil public interest litigation from the aspects of trial status,judgment content and implementation.Through the research,we find that there are many problems in the judicial application,such as the determination of the judgment standard of environmental infringement,the unification of the limitation of action,the clear way of bearing the specific responsibility,the standard of the court’s power and responsibility,and the expansion of the scope of the subject of appealIn this regard,the author suggests that we should improve the application system of preventive liability in environmental civil public interest litigation in China from two aspects of theory and justice,according to our own development and national conditions,and in combination with the applicable rules of preventive liability in foreign countries.In theory,first of all,considering that the subject qualification of preventive liability can not meet the needs of practice,it is necessary to introduce ordinary citizens to expand the scope of the subject of appeal;second,because the result elements of the establishment of preventive liability do not need to cause actual damage,the judge’s judgment on the result is too dependent on scientific evidence,so the judgment standard of environmental damage should be clarified;finally,the judgment standard of environmental damage should be made clear by Due to the particularity of environ mental pollution tort,the limitation of action is not conducive to the realization of the victim’s right to claim for preventive liability,so we should eliminate the differences in legal provisions and remove the limitation of the application of limitation of action to preventive liability.In the judicial aspect,first of all,in the face of the single case type in the current judicial practice,the scope of the case type should be appropriately broadened;second,due to the lag in the time of bringing a lawsuit,the legitimate rights and interests of the parties can not be timely relieved,and a variety of measures should be taken to ensure the timeliness of the lawsuit;third,considering that the judges are limited by the administrative department when they are applied in practice,The jurisdiction of the court should be expanded;thirdly,due to the disunity of the specific ways of preventive responsibility in practice,the specific judgment contents of preventive responsibility should be standardized;finally,the follow-up super vision of the effective judgment execution of the court’s judgment assuming the preventive responsibility should also be improved.We should try our best to build a set of environmental tort relief system centered on prevention to prevent damage and protect citizens’ life,property and environmental rights and interests... |
