The Linkage Mechanism Between Ecological And Environmental Public Interest Litigation And Damage Compensation Litigation

In recent years,there have been many cases of damage to public persons and property and serious damage to the ecological environment caused by damage to the ecological environment.In order to solve the problem of huge financial claims caused by the current major environmental pollution incidents and implement the principle of "damage compensation",since January 1,2018,China has officially begun to pilot the ecological environment damage compensation system nationwide.However,the newly established ecological and environmental damage compensation system has many "conflicts" with the previously established ecological and environmental public interest litigation.In order to coordinate the "conflict" between the two litigation systems,articles16,17 and 18 of the Several Provisions of the Supreme People’s Court on the Trial of Cases Involving Compensation for Ecological and Environmental Damage(for Trial Implementation)issued by the Supreme People’s Court contain special provisions on the above issues.The judicial interpretation adheres to the principle of separate prosecution,separate acceptance,and suspension of environmental civil public interest litigation.However,the above approach will cause the following series of problems: the extreme expansion of government power;Crossing judicial boundaries and causing confusion between administration and justice;It squeezes the prosecution space of the subject of public interest litigation rights and discourages its enthusiasm for prosecution;Claims may become a means of exemption in the case of "lazy administration" of administrative organs.In addition,the rules for linking the consultation procedure and the ecological and environmental public interest litigation procedure have not yet been clarified.This may cause the following adverse effects: First,when social organizations or procuratorial organs cannot understand the consultation procedure,there may be a situation where the consultation procedure and the environmental civil public interest litigation trial procedure may be parallel,and there may even be two kinds of results: the consultation agreement and the effective judgment.Second,when administrative organs are reluctant to initiate consultation procedures,there is no law on whether procuratorial organs have the right to urge them to initiate consultation procedures as soon as possible.Moreover,in the absence of social organizations participating in the consultation process,if there is an "exchange of benefits" between polluters and administrative organs,it will be difficult for the contaminated areas covered by the consultation agreement to be treated in a timely and effective manner.In order to achieve the coordination and integration of the two systems and avoid the improper appropriation of the litigation scope of environmental civil public interest litigation,the nature of litigation should be determined according to the function of the litigation system and the identity of the subject of litigation rights.On the basis of clarifying the nature of litigation,the adjustment rules of the system are constructed.In the event of "competition" in litigation procedures,the rules for handling environmental civil public interest litigation are still inappropriate.Legislators only see the advantages of the government’s environmental supervision behavior,but selectively ignore the problem of weak government supervision and lack of supervision.Therefore,in the case of "competition" in litigation procedures,exception rules should be set up to ensure that the litigation claims of social organizations or procuratorial organs are realized.In addition,the role of procuratorial organs in supervising and undermining the entire system should be clarified.In consultation procedures,litigation procedures,and enforcement procedures,procuratorial organs shall participate in relevant procedures as third parties in order to play their role as supervisors.If none of the other subjects of litigation have provided relief for ecological and environmental damage,the procuratorate may initiate an environmental civil public interest lawsuit to remedy the environmental damage,so as to play its role as a back-up.Therefore,based on the principle of "risk prevention",it is necessary to construct bridging rules in different situations: when neither litigation system has entered the actual trial stage,establish a communication mechanism for different litigation subjects and adhere to the principle of priority of consultation procedures;In the event of "competition" between the consultation procedure and the environmental civil public interest litigation,the principle of priority of the consultation procedure in principle is established in accordance with the principle of proportionality;When there is a "conflict" between the two litigation systems,it is necessary to adhere to the principle of applying the specific litigation system in the order of acceptance.It can be specifically divided into two situations: first,when only one litigation is accepted,other litigants should be encouraged to support the lawsuit or apply to participate in the trial process of the case as co-plaintiffs;Second,when both litigation systems have entered the substantive trial stage,administrative organs are encouraged to participate in the trial of environmental civil public interest litigation through joint trials.When procuratorial organs initiate consultation procedures with other subjects of litigation rights,they shall participate in the entire process of the procedures as a third-party entity.Where other litigation subjects initiate litigation proceedings,corresponding litigation support shall be provided to the subject of litigation rights.In the absence of remedy for the damaged environmental public interest,initiate environmental civil public interest litigation procedures to remedy the environmental public interest.