摘要(Abstract)：
As the legal proverb says"no plaintiff, no judge", clearing that the plaintiff in the environmental civil public interest litigation is the premise of the study of environmental civil public interest proceedings. Since the environmental civil public interest litigation system has been formally established by the Civil Procedure Law, one of the most concerned and controversial issues is the problem of the plaintiff. The plaintiff is concerned with two aspects: first, the scope of the plaintiff qualification, that is, who can become the plaintiff in the environmental civil public interest litigation relating to the plaintiff's ability(also known as litigation rights), which reflects the breadth of the scope of the plaintiff; second,the qualification standard of the plaintiff is the requirement of a single plaintiff concerned about the qualified plaintiff(also known as the legitimate parties),which reflects the limitation of the qualification standard of a single plaintiff and the depth of the restriction of the qualification standard of a single plaintiff. It is of great significance to explore the potential of the environmental civil public interest litigation system and to protect environmental public interest.
关键词(KeyWords)：
Abstract:
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基金项目(Foundation): National Social Science Fund Project,entitled Research on Special Procedures of Environmental Litigation(Number:15BFX154)
作者(Author): 张旭东;林静洁;
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参考文献(References)：
- 1 ZhuZhengmao&All-ChinaEnvironmentFederationv.Jiangyin Container Co.,Ltd.of 2009 for environmental pollution liability,which is brought by the common plaintiff of the individual and the All-China Environment Federation.Based on the type of plaintiff qualification,the number of cases in the distribution of statistics is repeatedly calculated.
- 2 The provisions of the(environmental)civil public interest litigation in the Civil Procedure Law revised in 2012 tend to focus on solving the problem of carrying out civil public interest litigation,which includes the problem of the plaintiff qualification.The Civil Procedure Law revised in 2012 also stipulated the cases which can be instituted.This is why the new law stipulates the civil public interest litigation provisions in the party system.
- 3 Zhang Weiping,The Study of Institutionalization of the Principle and the Implementation of the Civil Public Interest Litigation,7(4)Tsinghua Law 6,7(2013).
- 4 Sang Benqian,The Plight of Legal Interpretation,5 Legal Research 3(2004).
- 5 THE CIVIL AFFAIRS DEPARTMENT OF THE LEGAL AFFAIRS COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS(NPC),THE COMPLETE WORKS OF THE BACKGROUND AND VIEWS OF THE CIVIL PROCEDURE LEGISLATION,at 14(Law Press,2012).
- 6 Zhang Xudong,Three Elements of The Environmental Civil Public Interest Litigation,36(4)Journal of Dalian University of Technology(Humanities and Social Sciences Edition)106,108(2015).
- 7 Environmental Protection Bureau in Jiangyin City v.Wang Wenfeng and Ma Zhengyong for water pollution liability.
- 8 Environmental Public Interest Association in Changzhou City v.Chu Weiqing,Boshi Materials Recycling Co.,Ltd.in Changzhou City,Wuxi Jinke Chemical Co.,Ltd.,Xiangyue Petroleum Products Co.,Ltd.in Wuxicity,Refining&Petrochemical Co.,Ltd.in Changzhou City for environmental pollution public interest liability.
- 9 ACEF v.Luo Niushan Breeding Co.,Ltd.in Hainan Province for water pollution liability;ACEF v.Tiangong Biological Engineering Co.,Ltd.in Hainan Province for water pollution liability.
- 10 This article is only for statistics on cases that have been concluded and it does not include the environmental public interest litigations from January 1,2013 to July 31,2016 which have been accepted but not yet disposed.
- 11 RONAID DWORKIN,LAWS EMPIRE,at 5(Harvard University Press,1986).
- 12 There is a large controversy regarding the interpretation of"the organs prescribed by law",and whether the environmental protection departments and procuratorial organs should have the plaintiff qualification is especially focused as the amendment to"environmental protection law"did not specify it.
- 13 Xu Xin,Concerned about Amendment to the Environmental Protection Law:to Limit the Right to Appeal Is to Encourage Infringement,Southern Metropolis Daily,June 27,2013.
- 14 Xiao Jianguo&Huang Zhongshun,Environmental Public Interest Litigation Basic Issues,4 The Application of Law 8,12(2014).
- 15 Zhou Tsui,Functional Commitment and Program Design of the Civil Environmental Public Interest Litigation,5 Northern Law 90,95(2014).
- 16 Xu Day an&Jia Yang,Procuratorial Organs on Certain Areas Dealt with 245 Cases ofPre-procedure of the Environmental Civil Public Interest Litigation,Procuratorial Daily,December 30,2015,at 1.
- 17 JIANG"WEI&XIAO JIANGUO,CIVIL PROCEDURE LAW,at 156(Renmin University of China Press,2007).
- 18 Joseph L.Sax,The Public Trust Doctrine in Natural Resource Law:Effective Judicial Intervention,68(1)Michigan Law Review 471,521(1970).
- 19 The term of"the interest of action"is not the same among different countries.The Austrian Civil Procedure Low calls it as"litigation premise",the German law calls it as"the need for legal protection",the French law calls it as"interest"and the Japanese law calls it as"legal disputes".By contrast,there is no such concept and principle of"interest of action"which is replaced by litigation qualification theory in civil litigation in common law system.
- 20 JIAN ZIYI&ZHUXIA SHOUFU,CIVIL PROCEDURE LAW,at 51(Law Press,1995).
- 21 Bai Yan,The Research of the Plaintiff Qualification in the Civil Environmental Public Interest Litigation,2 Zhejiang Social Science 145,148(2016).
- 22 Li Yao,The Reasons for the System of Litigation Assuming,3 Law Journal 80,86(2016).
- 23 Associated Industries of New York v Icks,134 F,2d 694(1943).
- 24 Federal Commum'cations Commission v National Broadcasting.Co.,Inc.,319 U.S.239,265 n.1(1943).
- 25 It reflects the different combination of public interest and private interest.
- 26 Zhang Hui,The Theory of"the Private Procurator"in the Civil Litigation of the United States,1 Global Legal Review 164(2014).
- 27 Fan Zhenhua,Construction of Environmental Public Interest Litigation Plaintiff System under the Background of Public Goods:Based on the Revision of the Environmental Protection Law,4 Learning in the Sea 160,163(2014).
- 28 Zhang Xudong,supra note 6,107.
- 29 CHRESTIEN VON BALTIMORE,THE EUROPEAN COMPARATIVE TORT ACT(1),at 468-470(Law Press,2004).
- 30 THE CIVIL AFFAIRS DEPARTMENT OF THE LEGAL AFFAIRS COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS(NPC),supra note 5,13-14.
- 31 Leibinde Aika,Environmental Protection Class Action in EU and Germany,4 Jiaotong University 5,10(2015),
- 32 Ye Wentian,Who Is Indulging in Zijin Mining:The Intensity of Punishment and Compensation Were Questioned,China Business,December 25,2010.
- 33 RuanLijuan,Judicial Practice Analysis of the Plaintiff Qualification in Environmental Public Interest Litigation,12 Jiangxi Social Science157,160(2013).
- 34 THE CIVIL AFFAIRS DEPARTMENT OF THE LEGAL AFFAIRS COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS(NPC),supra note 5,305.
- 35 Li Hao,Some Thoughts on Civil Public Prosecution,4 Jurist 5,6(2006).
- 36 Zhang Weiping,The Research on the Implementation Strategy of Prosecutorial Supervision of Civil Procedure,33(1)The Forum of Political Science and Law 33,37(2015).
- 37 Xu Xiaofei,Registration Burst and the Court of Environmental Protection Wait for the Rice,the People's Court,June 2,2015,at 2.
- 38 According to the Reform Program that Procuratorial Organs Bring the Civil Environmental Public Interest Litigation on Certain Areas,Procuratorial organs of our country that bring the civil environmental public interest litigation mainly for pollution of environmental behavior does not involve the damage to the current ecology.
- 39 Qie Jianrong,The Dual Role of Public Interest Litigation to Benefit the United States,Legal Daily,March 27,2009.
- 40 Citizens to bring the environmental civil public interest litigation are not only a lawsuit brought by"citizens",but also include other subjects,such as groups,enterprises,state governments and so on.In other words,citizens litigation is a kind of inclusive title,but it emphasizes the special subject of citizens.
- 41 Zhang Weiping,supra note 3,17.
- 42 The scope of plaintiff qualification of foreign environmental public interest litigation is gradually expanding,and the plaintiff's qualification standards are gradually reduced.However,this does not mean the separation of the plaintiff and the interests of the case,it still requires the plaintiff to maintain a minimum contact with the case.
- 43 The principle of assistance is a government principle,which means that the government must devolve authority and responsibility to the minimum level of jurisdiction that is capable of performing such powers and duties(that is,at the level of the citizen).The auxiliary principle that deals with the personal,social,national and supranational relationship accepts the internationally idea that if the particular public and the organization is unable to achieve certain goals independently,high level of the organization should be involved.
- 44 Han Bo,The Combination of the Power of Public Interest Litigation System,1 Contemporary Law 31(2013).
- 45 Xiao Jianguo&Huang Zhongshun,supra note 14,13.
