Study On The Application Of China’s Preventive Environmental Civil Public Interest Litigation System

Since industrialization,the economic-centered development paradigm has caused serious damage to the ecological environment.However,due to the inability of traditional environmental civil public interest litigation to effectively deal with various ecological and environmental risks,the preventive environmental civil public interest litigation system,which is based on the prevention of major risks in advance,has come into being amidst realistic demands and calls from academics.The judicial practice since the establishment of the system shows that the preventive environmental civil public interest litigation system originated from the tort litigation is not effective due to its natural endowment of damage relief and the lack of practical foundation of judicial experience.The “Yunnan Oil Refinery Case” and the “Green Peacock Case” are typical examples of preventive environmental civil public interest litigation,which have revealed many problems in the application of the system.The lack of specific interpretation and confusion in the determination of “significant risk”,the lack of reasonableness in the current mechanism for allocating the burden of proof,the lack of clear benchmarks for the degree of proof,the uneven application of the number of preventive liability,the failure to alleviate the contradiction in legal values,and the ineffectiveness of the implementation of the existing liability,have revealed many problems in the application of the system.The problems of uneven application of preventive liability,the failure of common liability to alleviate the contradiction of legal values,and the ineffective enforcement of liability,all indicate that the application of the preventive environmental civil public interest litigation system needs to be optimized on the basis of the existing successful experience and problems.The theory of risk society provides methodological guidelines on why and how to prevent various risks in human society,while the theory of interest measurement provides thoughts on how legislators and judicial judges should measure the efficiency value of economic and social development and the order value of ecological environmental protection.The preventive environmental civil public interest litigation system,with its comprehensive value system of prevention,relief and supplementation,has shown great advantages in ecological environmental protection.In view of the actual needs of ecological environmental protection and judicial practice in China,and based on overseas experience,the author believes that the application of the preventive environmental civil public interest litigation system in China can be improved in the following aspects: firstly,by updating the concept of the application of the system at the macro level;secondly,by clarifying the“significant risk” determination authority and unifying the “significant risk”determination principle;and secondly,by clarifying the “significant risk”determination authority.The second is to clarify the rules of application of“significant risk” by specifying the main authority for determining “significant risk”,unifying the principles of “significant risk” and clarifying the specific criteria for determining “significant risk”;the third is to optimize the rules for shifting the burden of proof and the dialectical standard of proof.Third,to optimize the rules of proof by optimizing the rules of shifting the burden of proof and realizing the dialectic of the standard of proof;fourth,to improve the preventive liability mechanism by expanding the content of preventive liability and optimizing the enforceability of preventive liability.