我国环境公益诉讼障碍及其出路的实证研究
发布时间：2018-08-28 17:01
【摘要】：环境公益诉讼是解决环境公益纠纷、保护环境的一种重要途径。受传统诉权和当事人适格理论的影响,我国民事诉讼法和行政诉讼法在原告起诉资格上,均采直接利害关系人原则,这种理论和立法将环境公共利益排除在司法保护之外。但是我国司法实务中却存在有关环境公益诉讼的规范性文件和案例,这些规范性文件和案例虽具有个别性和偶然性,但仔细研究这些规范性文件和案例,可以发现环境公益诉讼在实务中存在的问题,而这些问题是推进环境公益诉讼在我国立法上确立必须要解决的。全文共分为三个部分。 第一部分分析我国环境公益诉讼的现状及存在的主要问题。首先从基本法、单行法、有关政策、最高人民法院的有关文件等方面指出我国环境公益诉讼的立法现状；其次通过收集环境公益诉讼的有关案例,分析地方实务上环境公益诉讼的有关规范性文件状况、环保法庭的设立情况、环境公益诉讼的代表性案例,从法院审理的依据、原被告类型、审理的程序、结案方式、诉讼请求和责任承担方式等角度指出环境公益诉讼的司法实践现状；最后从法律依据、原告资格、环境公益诉讼与环境行政执法的关系及其责任要件、因果关系认定等方面指出我国环境公益诉讼存在的主要问题。 第二部分分析我国环境公益诉讼问题存在的主要原因或障碍。首先指出传统诉权和当事人理论对环境公益诉讼原告资格的阻碍；其次从环境公益诉讼与环境行政执法关系角度指出环境公益诉讼功能不清晰导致这两种环境公益纠纷的救济方式关系混乱；最后区分不同责任方式适用不同责任构成要件,分析环境公益纠纷责任方式及构成要件立法上不明确且理论研究较少。 第三部分提出克服我国环境公益诉讼障碍的几点思路。首先考查美国环境公益诉讼制度。从原告资格、被告范围和可诉范围、环境公民诉讼的限制、裁判类型、诉讼费用负担的特殊规则等方面介绍美国环境公民诉讼,并分析指出我国可借鉴之处。其次从改进传统诉讼理论的角度,分析检察机关、环境行政执法或资源管理机关、民间社会团体和公民个人作为原告提起环境公益诉讼的不同机制,并从我国现阶段实际出发,指出现阶段我国立法上宜建立以检察机关和环境行政管理部门提起环境公益诉讼为主导,倡导社会团体和公民积极参与环境公益诉讼的环境公益诉讼启动主体制度。再次区分环境公益诉讼与环境保护行政执法的不同功能,并区分环境公益诉讼类型和提起主体,指出一般宜设置环境行政执法为环境公益民事诉讼的前置程序,但有例外如排污达标仍造成环境公益损害的,可直接提起环境公益民事诉讼。最后研究环境公益诉讼的实体问题,认为环境公益行政诉讼中行政责任的构成要件同一般行政诉讼,而环境公益民事诉讼中的停止侵害、排除妨碍、消除危险责任方式的构成要件同一般环境污染侵权同类型的责任方式,损害赔偿责任方式也宜采用无过错归责原则,但应区分不同原告来分配因果关系的举证责任。
[Abstract]:Environmental public interest litigation is an important way to solve environmental public interest disputes and protect the environment.Influenced by the traditional litigation rights and the theory of party's eligibility,both the civil procedure law and the administrative procedure law adopt the principle of direct stakeholder in the plaintiff's litigation qualification,which excludes environmental public interest from judicial protection. However, there are normative documents and cases concerning environmental public interest litigation in China's judicial practice. Although these normative documents and cases are individual and accidental, if we study these normative documents and cases carefully, we can find the problems in the practice of environmental public interest litigation, and these problems are to promote environmental public interest litigation. China's legislation must be resolved. The full text is divided into three parts.
The first part analyzes the current situation and the main problems of environmental public interest litigation in China. First, it points out the legislative status of environmental public interest litigation in China from the aspects of basic law, single law, relevant policies and relevant documents of the Supreme People's Court. Secondly, it analyzes environmental public interest litigation in local practice by collecting relevant cases of environmental public interest litigation. The status of relevant normative documents, the establishment of environmental courts, representative cases of environmental public interest litigation, from the court trial basis, the type of the plaintiff, trial procedures, the way of closing the case, litigation claims and the way to assume responsibility, etc. point out the current judicial practice of environmental public interest litigation; finally from the legal basis, the plaintiff qualifications, the environment. The relationship between public interest litigation and environmental administrative law enforcement as well as its responsibility requirements and the determination of causality point out the main problems of environmental public interest litigation in China.
The second part analyzes the main reasons or obstacles of environmental public interest litigation in China. First, it points out that the traditional litigation right and party theory hinder the plaintiff qualification of environmental public interest litigation; secondly, it points out that the unclear function of environmental public interest litigation leads to the two environmental public interest disputes from the perspective of the relationship between environmental public interest litigation and environmental administrative law enforcement. Finally, it distinguishes the different forms of liability and applies different elements of liability. It is not clear in legislation and theoretical research on the forms and elements of environmental public welfare disputes.
The third part puts forward some ideas to overcome the obstacles of environmental public interest litigation in China.First, it examines the environmental public interest litigation system in the United States.It introduces the environmental citizen litigation in the United States from the aspects of plaintiff qualification, defendant scope and lawsuit scope, environmental citizen litigation limitation, type of adjudication, special rules of litigation cost burden, and analyzes and points out that China can borrow it. Secondly, from the perspective of improving the traditional litigation theory, this paper analyzes the different mechanisms of environmental public interest litigation initiated by procuratorial organs, environmental administrative law enforcement or resource management organs, civil society organizations and individual citizens as plaintiffs, and points out that it is advisable to establish procuratorial organs and environmental enforcement in China's legislation at this stage. The administrative department initiates environmental public interest litigation as the leading factor, advocates the initiation subject system of environmental public interest litigation in which social organizations and citizens participate actively in environmental public interest litigation. Administrative law enforcement is the pre-procedure of environmental public interest civil litigation, but there are some exceptions, such as pollutant discharge standards still cause environmental public interest damage, can directly bring environmental public interest civil litigation. The elements of stopping infringement, removing obstruction and eliminating dangerous liability in litigation are the same type of liability as the common environmental pollution infringement. The principle of no-fault imputation should be adopted in the way of compensation for damages, but the burden of proof of causation should be distributed among different plaintiffs.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925;D922.68
本文编号：2210013
[Abstract]:Environmental public interest litigation is an important way to solve environmental public interest disputes and protect the environment.Influenced by the traditional litigation rights and the theory of party's eligibility,both the civil procedure law and the administrative procedure law adopt the principle of direct stakeholder in the plaintiff's litigation qualification,which excludes environmental public interest from judicial protection. However, there are normative documents and cases concerning environmental public interest litigation in China's judicial practice. Although these normative documents and cases are individual and accidental, if we study these normative documents and cases carefully, we can find the problems in the practice of environmental public interest litigation, and these problems are to promote environmental public interest litigation. China's legislation must be resolved. The full text is divided into three parts.
The first part analyzes the current situation and the main problems of environmental public interest litigation in China. First, it points out the legislative status of environmental public interest litigation in China from the aspects of basic law, single law, relevant policies and relevant documents of the Supreme People's Court. Secondly, it analyzes environmental public interest litigation in local practice by collecting relevant cases of environmental public interest litigation. The status of relevant normative documents, the establishment of environmental courts, representative cases of environmental public interest litigation, from the court trial basis, the type of the plaintiff, trial procedures, the way of closing the case, litigation claims and the way to assume responsibility, etc. point out the current judicial practice of environmental public interest litigation; finally from the legal basis, the plaintiff qualifications, the environment. The relationship between public interest litigation and environmental administrative law enforcement as well as its responsibility requirements and the determination of causality point out the main problems of environmental public interest litigation in China.
The second part analyzes the main reasons or obstacles of environmental public interest litigation in China. First, it points out that the traditional litigation right and party theory hinder the plaintiff qualification of environmental public interest litigation; secondly, it points out that the unclear function of environmental public interest litigation leads to the two environmental public interest disputes from the perspective of the relationship between environmental public interest litigation and environmental administrative law enforcement. Finally, it distinguishes the different forms of liability and applies different elements of liability. It is not clear in legislation and theoretical research on the forms and elements of environmental public welfare disputes.
The third part puts forward some ideas to overcome the obstacles of environmental public interest litigation in China.First, it examines the environmental public interest litigation system in the United States.It introduces the environmental citizen litigation in the United States from the aspects of plaintiff qualification, defendant scope and lawsuit scope, environmental citizen litigation limitation, type of adjudication, special rules of litigation cost burden, and analyzes and points out that China can borrow it. Secondly, from the perspective of improving the traditional litigation theory, this paper analyzes the different mechanisms of environmental public interest litigation initiated by procuratorial organs, environmental administrative law enforcement or resource management organs, civil society organizations and individual citizens as plaintiffs, and points out that it is advisable to establish procuratorial organs and environmental enforcement in China's legislation at this stage. The administrative department initiates environmental public interest litigation as the leading factor, advocates the initiation subject system of environmental public interest litigation in which social organizations and citizens participate actively in environmental public interest litigation. Administrative law enforcement is the pre-procedure of environmental public interest civil litigation, but there are some exceptions, such as pollutant discharge standards still cause environmental public interest damage, can directly bring environmental public interest civil litigation. The elements of stopping infringement, removing obstruction and eliminating dangerous liability in litigation are the same type of liability as the common environmental pollution infringement. The principle of no-fault imputation should be adopted in the way of compensation for damages, but the burden of proof of causation should be distributed among different plaintiffs.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925;D922.68
【引证文献】
相关期刊论文 前1条
1 王兰;;环境管理机关公益诉讼原告资格理论与实践之辨[J];西南政法大学学报;2013年04期
相关硕士学位论文 前3条
1 滕曼丽;环境侵权的惩罚性赔偿研究[D];上海师范大学;2012年
2 赵彦彬;我国环境保护中公众参与法律问题研究[D];曲阜师范大学;2013年
3 王连香;环境民事公益诉讼中举证责任分配问题研究[D];青岛大学;2013年
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