中国环境公益诉讼的发展 —以设立环保法庭的地区为中心

Abstract

In order to settle the problem of regional restriction occurred when carry out the environmental protection by administrative means，some heavily polluted areas in China revolutionarily established the environmental protection court and issued related regulations，so as to protect the environment through carrying forward the environmental public interest litigation. Compared with the Administrative Environmental Public Interest Litigation，the Chinese government is more inclined to carry forward the Civil Environmental Public Interest Litigation. But the biggest problem which haunts the environmental protection court is few people resort to the court for such a complaint. The social system as well as cultural tradition underlying this phenomenon is deep and profound. First，the environmental deterioration reflects only one side of the entire social status quo of China，and it is caused by the state-led model of development lacking of the necessary democratic supervision. The essence of the environmental public interest litigation should be that democracy supervises state to carry out its governing role on social affairs. It is necessary to foster a democratic culture when sets about to establish the public interest litigation，and it can’t be accomplished in one day. Given the democracy is absent，it is worrisome of the prospect that how long the environmental public interest litigation which is dominated by state or local government will last and whether it could be successful in the end. Second, the court is not independent in China in which separation of powers hasn’t be adopted, and currently it is positioned to a large extent only to assist the government to solve social problems as it did before. Such position and situation will undoubtedly create a court as weak as not be able to shoulder the responsibility of environmental public interest litigation of which it has the function to form environmental policie s，even there is the righteous brave enough to file a suit against the government to the court on behalf of public interest. Third, when an administrative environmental public interest litigation is to be lodged，the litigation is reasonable only when the state environmental protection authority can do something but actually it did not. The state environmental protection authority should be granted sufficient enforcement power before filing an administrative environmental public interest litigation. To push forward the environmental public interest litigation，in addition to the above profound problems to be solved, it has to loose the standard of establishing environmental protection group，improve the management system of such group，enhance the governmental information disclosure，and perfect the identification system. Considering all the reasons above，it will take a long time for China to develop environmental public interest litigation.