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1、 On the System of Environmental Administrative Public Interest Litigation road of the Abstract environmental administrative public interest litigation and administrative law and environmental law most closely related about specific litigation system, the main provisions of the voice of the academic
2、Environmental Public Interest Litigation in the Administrative Procedure Law and the Supreme Peoples Court issued the relevant judicial interpretations. high, but its implementation is facing heavy fetters, how to open up an environmental administrative public interest litigation broad road is the f
3、oothold. Paper Keywords Environmental Public Interest Litigation plaintiff to sue environmental organizations Environmental Public Interest Litigation Case Review and comment October 2001 two teachers of Southeast University, Nanjing Planning Bureau is not planning permission for the Purple Mountain
4、 viewing platform administration according to law, the construction of a viewing platform “undermining the pleasure to enjoy the natural landscape of the mentally grounds to bring an administrative lawsuit to the Nanjing Intermediate Peoples Court after the ruling does not belong to the scope of the
5、 case has been dismissed, the relevant departments under the strong pressure of public opinion eventually stop the construction of a viewing platform, which is a typical administrative violations of environmental charitable Case Bi large number of March .2004 Sichuan Chemical factory effluent ammoni
6、a exceeded, May 2004 of Renshou County East is Red Paper Company illegal waste-water treatment led to the the Tuo River a short period of time the two major pollution accidents, painful lesson Behind highlights the local environmental protection department of the slack supervision of polluting enter
7、prises and covert indulgence. So the case is still in Inner Mongolia, Heilongjiang (Songhua River pollution incident occurred, however, due to Chinas lack of legal provisions or even relevant provisions can not adapt to the characteristics of environmental disputes, in many cases the plaintiff does
8、not comply with the prosecution of the main qualifications “ or the case does not belong to the scope of the case of the court “have been shut out, the victim can not receive timely relief, the dignity of the law is also facing challenges. Legislative lack of clearly defined public administrative pr
9、oceedings on the environment, resulting in contact with such cases, the Court held mostly an extremely conservative and cautious approach. Environmental public interest litigation is imminent. Cope with difficulties, we have to carefully analyze the obstacles factors promote environmental public int
10、erest litigation. Second, the environmental public administrative proceedings the main obstacles facing Environmental Public Interest Litigation refers to damage or the prejudice of the public environmental rights and interests of the environment and ecological resources when the behavior of the env
11、ironmental administrative authorities, the lawsuit filed by the court accepts no direct interest in the relationship between citizens, legal persons or other organizations to review and make The referee a litigation activities. reflect on the opening case, environmental public interest litigation fa
12、ced many obstacles, but the main obstacles in two ways. (A plaintiff eligibility limitations Current administrative procedural law on the the plaintiff qualification requirements: two citizens, legal persons or other organizations that the specific administrative act of the executive and the executi
13、ve staff to infringe upon their legitimate rights and interests, the right to the peoples court proceedings in accordance with this Law. 24 “Notwithstanding the provisions of the three types of body vested with executive the right to appeal, but in actuality, not specific range is not conducive to e
14、asy to form excessive litigation situation, increase the burden on the judicial proceedings in accordance with this Law, citizens legal persons or other organizations is the plaintiff. “provides three different forms of the plaintiff, but the scope is too narrow, while in the neighboring rights, the
15、 reconsideration decision, stakeholders and has a legal interest in the revocation or change of the specific administrative act people and other members of the excluded, the Supreme Peoples Court on the implementation of the Administrative Procedure Law of the Peoples Republic of China Interpretatio
16、n of Several Issues >> << supplement the interpretation of Article 12 provides that: “with the specific administrative act has a legal interest the relationship between citizens, legal persons or other organizations that conduct is dissatisfied, he can legally bring an administrative law
17、suit “Although this judicial interpretation of the plaintiff qualification from the legitimate rights and interests of the standard expanded to be interested in the administrative acts of the respondent, the other social members, but still insisted on “relative administrative personnel directly affe
18、cted by the administrative act is the plaintiff” standard means that non-directly interested party can not be the subject of proceedings, ignoring the existence of environmental public, environmental public administrative proceedings Jixiang judicial vacuum when environmental pollution events or suf
19、fered ecological damage, not directly interested parties can only wait for their rights have been violated to the identity of the victim against infringers bring a civil action, or environmental public the cause of an outsider, looking at the environment and public interests suffered the trampling o
20、f the executive authorities and indifferent. (Subject to the limitations of the scope of the case By Article 2, Article 11 and Article 12 of the Administrative Procedure Law overall delineated the scope of administrative litigation, listed positive and negative exclusion, such as abstract administra
21、tive act, an act of state, the internal administrative act excluded. In addition, the judicial interpretation of the Supreme Peoples Court also increased the other exclusions type, such as acts of mediation and arbitration, administrative guidance, repeat treatment behavior. enhanced operability of
22、the law, but not conducive to environmental protection of the public interest, such as an abstract administrative act the extent of damage to the environmental public interest than the specific administrative act may be more serious. In addition, the rights and obligations of citizens, legal persons
23、 or other organizations will not have a real impact behavior excluded, means that the court has no right to accept has not yet occurred actual damage was full of risk of harm cases and cases of environmental damage is not always straightforward realistic damage, mostly with hidden and latent Adminis
24、trative Procedure Law provisions on the scope of the case was too narrow, directly limit as the existence of objective litigation Environmental Public Interest Litigation. In China, the qualifications of the environmental public interest litigation, the plaintiff has urgent need to revisit and redef
25、ine To this end, based on the actual situation and to draw on the legislative experience of Western countries, the plaintiff qualified moderately relaxed, the adoption of “and that he has no legal interest “standard, should be our bold attempt. Third, the Environmental Public Interest Litigation pat
26、h to explore We should try to relax and has a direct interest in the subject matter of litigation, “the plaintiff qualification requirements, broaden the Environmental Public Interest Litigation from the range, to establish a clear scope of the case and be complemented by other systems. (A moderate
27、to broaden the standing of plaintiffs Learn from foreign environmental administrative public interest litigation mode expansion theory, based on the public interest litigation plaintiff qualification of environmental public administrative proceedings the plaintiff may have the following categories:
28、1 Citizens The provisions of the United States system of private Attorney General, Congress passed legislation to authorize private persons or groups to the lawsuit brought against the unlawful act or omission of the management in the public interest, such as the United States >> << Nati
29、onal Environmental Policy Act requires federal agencies give full consideration to the interests of the environment required during the the influential federal action on the human environment. breach of the the << National Environmental Policy Act, the provisions of the environmental impact as
30、sessment procedures, citizens can request as a pretext for judicial review .1972 << Clean Water Act >> the provisions of Article 505, allowing citizens or state proceedings subsequently established by the Clean Air Act << >> “citizen suit provisions of any alleged violation o
31、f the Clean Water Act << >> recognized the citizens right to appeal in the public interest to protect the environment, to grant citizens filed a judicial review of the qualifications, provide the basis for citizens to bring environmental administrative proceedings that the system is also
32、 forced to consider the environmental impact of the administrative authority to make administrative act, forcing companies to environmental protection measures to avoid the occurrence of environmental disputes also increase the channels of public participation in environmental protection. Reposted e
33、lsewhere in the Research Papers Download 2 procuratorial organs Follow British law, the the only forensic Executive to represent the public proceedings, to prevent public misconduct. Equivalent to Chinas Legal Affairs Executive prosecutors Legal Executive can either take the initiative to request th
34、e implementation of judicial review of administrative action on behalf of the public interest, but also in the private no standing to sue to help private application for judicial review is worth noting that only misconduct directly to their own interests damaged or is likely to damage the case of pr
35、ivate in order to seek relief, but if the problem can be caused by Law Service Executive attention and he refused to exercise its authority, personal respect can request the Legal Affairs Executive let himself go to supervise the proceedings. Legal Affairs Executive permitting, on can he filed lawsu
36、its, but the purpose is not its own, but the general public of interests. maintenance of public environmental benefits from a wide range of of proceedings by the prosecution, can reduce the hard evidence of citizens, can greatly improve the efficiency of solving environmental problems, environmental
37、 mitigation pressure, conducive to the realization of environmental public. 3. Environmental organizations The environmental organization is established for the protection of the environment as a nationally recognized social groups, professional, voluntary, based on the needs of the development of C
38、hinas environmental administrative public interest litigation, I think that can be given the plaintiff qualified environmental organizations, expertise make up for the lack of personal power., financial strength and other environmental public interest litigation, public interest litigation system in
39、 the United States is more perfect, public interest litigation case is also very rich, but few citizens to sue in his own name, most civil litigation by citizens groups, environmental groups, even if there is no ready-made group, they will be constituted ad hoc groups or rely on the association to r
40、epresent the public interest to initiate proceedings. existence of many organizations, which greatly promoted the development of public interest litigation in the United States, although Chinas environmental protection organizations not mature enough, but with the increasingly serious environmental
41、problems, environmental organizations on the positive value of the cause of environmental protection “is becoming increasingly apparent in the legislative process on the number of qualified environmental organizations, such as the China Association of Environmental Science, China Wildlife Conservati
42、on Association Chinese Society for Sustainable Development, the China Environmental Protection Foundation, Friends of Nature, that they are endowed by their right to sue, to play environmental organizations, to broaden the qualification of the Environmental Public Interest Litigation. (Design clear
43、scope of the case Facing traditional combination of environmental public administrative proceedings subject to the limitations of the scope of the case, the following scope of the case can be established: (1 coal, electricity, iron and steel, cement, construction, paper and other new energy construc
44、tion project does not meet the statutory requirements and administrative organs in violation of permitted construction, (2 apply for administrative authorities to fulfill the statutory duties of protecting the air, land, water, grasslands, wetlands, forest, mineral and other resources, administrativ
45、e organs unjustified refusal to perform or refrain from acting, (3 administrative organs chaos issuing discharge permits, or send The card after delayed in the regulatory environment, so that the major disruptions or face serious risk of contamination of course, with the continuous improvement of th
46、e environmental administrative public interest litigation, by way of judicial interpretation to further expand the scope of the case. (Other systems supporting the use of The implementation of the Environmental Public Interest Litigation also need auxiliary system, such as procedural requirements, i
47、ncentives, legal aid, the burden of proof. 1 Set informed in advance of the program Learn from the United States, the prosecutor before filing a lawsuit must be written Prosecution notice of intent “sent by the advocates of the offenders and the executive authorities in the prosecution of a notice o
48、f the date of the expiration of 60 days, the prosecution only to the courts. to provide for early notification system is designed for an opportunity to correct the violations to government departments and polluters, conserve judicial resources, and can also balance environmental public interest inde
49、pendent exercise of the relationship between the executive power and the executive authorities in our country, the public can be The environment found illegal facts and report to the environmental protection department and other administrative authorities and law-breakers in the main body at the same time send a special notice in writing. law may provide accepted the Report of the environmental protection department and ot
