Law of refraction environmental administrative litigation cases

                ---Also on theDingzhou atmospheric pollution case[1]

Zhang Fuguang

China University of Political Science and Law law school (GermanLevel 2007)

Abstract:Under the contemporary environmental pollution increasingly serious situation, environmental litigation also showed a rapid growth trend, but as a "last line of defense" justice justice is not adequate relief of victims of pollution, still can not catch this a "life-saving straw". This paper will combine the development of Dingzhou City refinery illegal sewage nuisance case, analysis of various legal difficulties refraction the and disadvantages of various factors hindering the environmental lawsuit, dialysis, conceived from the qualification of the plaintiff, the scope of administrative litigation perspective and combined with the theory of environmental right framework to solve the environmental administrative litigation problems.

Key word.Environmental administrative litigation    Public interest litigation     Environmental right

Outline:

The text

Language is not a crystal, transparent and stable, with the move when the life is easy and Fu with new ideas;

Law is not a vase, and gold in the floc, concise and clear the broad and profound.

                               -- "

A,   Brief introduction of Dingzhou case

    Factory of rare metal refining Wang Jia Cun, Dingzhou city of Hebei province to waste film, sludge and other hazardous waste as raw material refining silver, the burning of simple equipment, simple production process, and the lack of necessary technical staff. Incineration process of unorganized emission of toxic and harmful gases, a lot of smell the stench, since1988Years, the plant has been operating without a license, the villagers and village residents a shortness of breath, dizziness, nausea and other symptoms, the village committee had to deal with this long decided, ordered the plant to stop production.2003Years, due to the local masses strongly, the Dingzhou Municipal Environmental Protection Bureau ordered the plant shutdown and choose another site. But soon the factory and a stirring among the dry bones, the old plant to resume production, the new plant site selection is unreasonable, but the Dingzhou Municipal Environmental Protection Bureau illegal approval of the construction project environmental impact assessment table, to the new factory covered with legitimacy, in fact the production equipment, production has not changed, of course, can not solve the pollution problem. Since then, local residents continue to reflect the EPA and required to solve this problem, the environmental protection agency in a new factory legitimate procedures, emission standards as an excuse to refuse treatment.

   The prosecution and the refinery apart400M, we are in the prosecution of environmental adjacent right, right of life and health, normal rest right by the actual impact point proceedings on the case. But the court of first instance to the parties concerned do not have the qualification of the plaintiff on the grounds, the pollution victims blocked outside suit door. The reason is not adjacent relationships between, and the prosecutor without sufficient evidence to prove his actual damage.

    Some of the questions: what is a blur of plaintiff qualification in administrative litigation must have what effective elements, the scope of "against the specific administrative acts against neighboring right, the fair competition right" in "neighboring rights" should be the interpretation, "general principles of civil law" in the neighboring right is closed concepts are toughness and elasticity, environmental rights not clearly written law or the "environmental protection law" of the situation, how to make up for the loopholes in the law, whether the burden of proof is the environmental administrative litigation cases and general administrative litigation is the same or somewhat flexible. The laws and regulations of these problems and have no clear provisions or is still a legal vacuum. Of course, the law should be concise nature, forward-looking, but we should pay attention to is: the role of law is the most important to the real life extends antenna, is the specification of the adjustment to the existing order, it must be functional, clear, otherwise it is difficult to unify the judicial, and very likely to breed corruption. So we advocate rather detailed repeat, not ready to accept either course.

    According to the statistics of the Supreme People's court, "administrative procedure law" since the1990Years10Month1Since the day started, I accepted "mingaoguan" case91.3Million, an average annual6.8Million, successful rate31.28%. In the31.28%The rate of winning, the court directly to the administrative authority for14.91%The administrative organs, administrative behavior, change their during the litigation plaintiff claim accounted for12.92%; change the administrative authority of the court0.92%The court judgment; the administrative organ to perform its statutory responsibility for2.53%. Add up to four31.28%.[3]And lose the case, the plaintiff does not have the qualification of the plaintiff, does not belong to the scope of accepting cases dismissed also accounted for a considerable proportion, which become the bottleneck of administrative people seek judicial relief, how to solve this problem, the parties directly related to the availability of administrative and judicial relief and the development of China's administrative and judicial perfection.

    Several legal issues reflected two, Dingzhou case

    Dingzhou is a fairly typical environmental administrative litigation cases. There is no principled difference between environmental administrative litigation cases with general environmental litigation, but it has its unique:1Environmental administrative lawsuit defendant actually is the shadow the defendant, the defendant is the government really;2Is not the value orientation of environmental administrative litigation is the economic rights of priority or environmental rights priority, and balance the need for profit and loss;3The administrative litigation of environment science and technology strong.

    Say the case is typical, because it is like a prism, from different angles and reflects the defects in our legal system and judicial system, legal issues involving administrative procedure law, civil law, environmental law, civil procedure law and other fields. Study them carefully, to the case as the breakthrough point, can put forward many feasible judicial, legislative proposals, so as to promote a large number of similar cases resolved, to obtain a breakthrough on the field. Can be said that the Domino effect to solve the case generated is we actively promote the safeguarding rights and interests of people, broaden the judicial relief way intention.

(A)   The legislative defects in our country's Administrative Procedure Law

2;      1The provisions of the administration litigation plaintiff qualifications vague and scattered

      On the plaintiff's qualification of administrative litigation, there are two main theories.[④]

   "Subjective theory"  It is mainly based on "the people's Republic of China Administrative Procedure Law" article2Stipulates: "citizens, legal persons or other organizations hold that a specific administrative act of administrative organs and government functionaries infringe upon their lawful rights and interests in accordance with the law, have the right to the people's court to prosecute." "Think" is a subjective judgment of vocabulary, and "violation" can have "had already violated" and "the invasion" two kinds of understanding, namely the parties think they have violated or may have violated a lawsuit can be filed. Clear administrative law is blurry, it did not create a clear understanding of the model, so the judges and their different will make different judgments. For example, on the issue of Beijing City Court holding more open and tolerant attitude, and will focus on the scope, and the Baoding city court is different.

    "Objective theory"  According to "the Supreme People's Court on the implementation of 'of the people's Republic of China administrative procedure law interpretation of several issues" the'12Stipulates: "the legal interests of citizens, legal person or other organization refuses to accept this behavior with the specific administrative act, it may bring an administrative lawsuit according to law." The parties must prove himself and the specific administrative act is legal interest, to demonstrate the practical impact on their own administrative behavior. "With the specific administrative act has stipulated legal relationship" this is inadvertently clear, legal relationship is direct, or indirect interested can also? It has caused some people will think that legal interest is a direct stake, to prove the impact on their own administrative behavior, must play a role in the specific administrative action (i.e. relative person), otherwise it does not exist in the administrative organs of the stake, also do not have the qualification of the plaintiff. But the specific administrative act but "equity" and "deprivation of rights" in two, when the relative person is granted rights, rights of third party damage do? For the administrative behavior of complex effect of it is directly relative to the specific administrative act although people also influence, radiation, fight, oscillation to the relevant people this explanation has not yet appeared in the law, the relevant administrative procedure law is not clearly defined, so the transaction process must not unified.

    To sum up, regardless of subjectivism or objectivism, provisions of administrative law are scattered, vague, lack of maneuverability, but also provide an excuse for corruption in the judiciary, judges look for the excuse that the plaintiff does not have the qualifications of the plaintiff, the program block entity, so that the victims can not get relief. The provisions proposed legislation in modified this method to system, focused, clear, to clarify the suspected fog.

2;      2The scope is too narrow

    China's "administrative procedure law" to establish the scope of accepting cases take is mixed: the basic limit first in a general way to establish the scope of accepting cases of administrative litigation, Then to enumerate the way in "the people's Republic of China Administrative Procedure Law" article11Article1A list of8Administrative cases belong to the scope of accepting cases of administrative litigation law, the last chapter12And "explanation" article1Article enumerates several kinds of administrative case does not belong to the scope of accepting cases.

    Generally speaking, the scope of accepting cases take the personal right, property right standard, only the specific administrative acts of violation of the citizen, legal person or other organization's personal rights, property rights, to be actionable, and political rights is closely linked with people's life (such as the right to freedom of association, demonstrators exercise), labor rights, the right to rest, cultural right and educational right was infringed suffers no relief, people's legal rights can not be maintained, and the administrative reconsideration of this one is so fragile! Once this one-dimensional fault, the victim can only have nowhere v..

    Combined with the Dingzhou case, the breakthrough point is based on the court explained thirteenth of the citizens, legal persons or other organizations may bring an administrative lawsuit"(A)The specific administrative acts being sued to the neighboring rights or fair competition right;..." "In neighboring right", Relates to the adjacent right and bring an administrative lawsuit can make a lot of administrative acts being incorporated into the administrative litigation in the environmental law category, but the problem is the adjacent right must also have the property adjacent to the requirements, but the range of environmental pollution and damage is much larger than the adjacent immovable property, if not "adjacent" does not move may also produce between which Party Infringement in use, the need to broaden the scope of administrative litigation to protect the rights and interests from the legislative intent. The problem which in the civil law of neighboring rights to make up in the administrative procedural law and the relevant interpretation.[⑤]

2;      3The burden of proof reasonably in environmental administrative litigation

    The burden of proof lies, it is. It plays a vital role in litigation, litigation is directly related to the. And the allocation of the burden of proof and the bear also directly reflects the value orientation of the law.

    Although the principle of burden of proof has been implemented by administrative organs in administrative litigation, burden of proof to prove that the administrative act, the plaintiff if proof is not sufficient, still not out of the burden of proof of administrative organs, but from the fixed case we feel there is still the following problems:

     (1) the provision of the administrative litigation law, the plaintiff must be on the impact on their own or damage, the burden of proof in administrative litigation, in the environment, even if the plaintiff took medical records to prove their right to life and health damage, the administrative organ can also result from other factors of the disease are listed to refute, but if the causal relationship between the burden of proof presence is very difficult, the burden of environmental pollution case once again encounter civil action shall be borne by the pollution problem. But if the administrative organ to bear the burden of proof is not fair, because the design of this kind of high technology, environmental pollution cases, not necessarily the administrative organ will dominate. So we suggest that on this issue, the plaintiff to prove the existence of a causal relationship as long as its damage and pollution[⑥]You can get support.

    (2) provisions of the administrative procedure law, the plaintiff must prove that "by a specific administrative act of the actual effect", this provision does not adapt to the development of environmental law and the real life requirements. For example, when the government approved the east you know20Storey building construction will affect your lighting right, you only have the building is completed before they can sue? In addition, when the project EIA agencies illegal approval and environmental hazard of enterprises significantly endanger your life and health right, whether you should wait until they regarded as hopeless. can bring an administrative lawsuit? These are obviously. So, in the environment of administrative cases, should not one-sided emphasis on the actual effect or damage, as long as the possibility of damage can be proved. In this we set the EIA system objective, the feasibility study stage records construction project will solve the problem out, or when the boat in the river when the trap, already too late, and the environmental protection law becomes naked vase.

2;      4On extension of environmental litigation period and mediation system

     The current administrative procedure law article39Stipulates: "citizens, legal persons or other organizations to bring an administrative lawsuit directly to the people's court, shall make a specific administrative act under the guidance of the date of3The months." But given the environmental pollution is a long-term, latent features, now people's environmental awareness, knowledge of the law, even if it knows the specific administrative action has been made, because not harm and not to prosecute. Once the danger appears, but hesitated over the limitation of action and cannot get relief, this is unfair, it proposed to extend the deadline for action.

In addition to the administrative procedure law also stipulates the mediation is not suitable, it is worth discussing. Is often the case in reality, pollution victims to file an administrative lawsuit, asking the court to revoke the illegal approval of administrative organs. But if the pollution caused by construction projects is large in scale, and in accordance with the law should be relocated or stop production, and this often involves multi stakeholder, the judge may climb the victim loses much consideration based on, are not conducive to protect the interests of victims. For instance, illegal approval of a planning department20Construction layer building against the nearby residents of lighting right according to law, the building should be removed, the enormous cost. In the administrative proceedings, the parties agreed to mediation if, why not give permission? If the mediation, the victim may to some compensation, but also does not cause the waste of social resources, what is there against it?

(two) the civil law, environmental law related field adjustment and extension

1The moderate expansion of the adjacent right theory

"General principles of civil law" in the adjacent relation refers to real property adjacent to the parties in the exercise of ownership or use, must and convenient or accept limits to the rights and obligations relationship, such as water, drainage, access, ventilation and other aspects of the adjacent relation.

Starting from the original intention of legislation, the neighboring right is the expansion or limit the formation in the use of property rights in the process, the law is not limited to list the more content included in the "other" word, but with the problem of environmental pollution has increasingly been concerned, we suggest that in the civil law of the neighboring right further enrich, establish environmental adjacent relation system. Because of the pollution factor relates to the atmospheric pollution, electromagnetic radiation pollution, noise pollution, dust pollution, odor pollution, environmental pollution, are the days and months multiplying trace toxic and harmful substances, so called "measureless substance pollution[⑦]", they are more subtle, persistence and constancy, once the damage, the consequences be unbearable to contemplate. These civil right of adjacent immovable property used to all inclusive, so as to expand the adjacent right, to meet the needs of real life.

2Set the environmental right in environmental law

Although the environmental right has been around for decades, the theory has already been accepted, but so far China has not yet established in the laws and regulations in the "environmental right", which caused the consequences of this, when the public environmental right is damaged but had to go and the adjacent right of civil law to find relationship, the results are often not to the court. The case of Dingzhou, we are starting from the neighboring right, and judges that neighboring right of civil law belongs to the adjacent immovable property (especially land) with a kind of social relations arising from, or different and we of the parties of the pollution of the environment, and the plaintiff and the defendant at400Rice, not adjacent. So our view is not supported, the prosecutor's legitimate rights and interests can not be maintained. While the set of environmental right in environmental law, lay the right foundation for pollution victims in the substantive law, but also can be recognized by the court.

Three, look outside   The stone of its mountain thought the jade

When you as a problem and suffer great agonies of the mind, bend the brows, there are two ways to go: (a) the secluded, behind closed doors; (two) the stone of its mountain, think jade. Law is in essence an open field, because of its cover and contain everything it needs to swallow anything and everything, all rivers run into sea. Now we open the window, have a look American provisions in environmental administrative litigation aspects.

USA in plaintiff qualification of advanced sex is mainly manifested in two aspects: first, the causal relationship is very far fetched exists even if environmental administrative behavior and the indirect relative damage, also think interested indirect relative person and environment administrative behavior, in order to confirm the qualification of plaintiff indirect relative person; secondly, the indirect relative person injury is not the economic interests or material damage, environmental interests of the damage such as environmental aesthetic appreciation damage (spiritual damage) is in fact of damage, damage is also not only refers to the damage that has occurred, the fact is that may damage or potential harm.[8]Its provisions to avoid confronting China's current environmental administrative lawsuit in question, will damage extended from material property loss to the spiritual damage, and damage to the injury, more in line with the principle of prevention of environmental law.

In addition America have established the environmental public interest litigation system more perfect, in recent years, China's environmental law scholars have been exploring this problem. "Environmental public property theory" has been widely accepted, the government as a public property administrator, if the violation of environmental behavior, blind or directly indirect damage interests of the environment, the public will have the right to sue the government. Public interest litigation is to harm the public interest of the private prosecution, its most important characteristic is that any organization and individual have no direct relation with the case (does not rule out direct stakeholders), are in accordance with legal authority, in the name of their own or national proceedings, to safeguard social and public interests. Public interest litigation in the plaintiff qualification, scope of case, the burden of proof, litigation period has wider, looser rules, more conducive to the interests of Protect environment.

To the west a few good system, we can transplant, to learn from them, and then combined with China's national conditions, appropriate of its transformation, the "localization", thus use.

Four, the conclusion

The mountains not cover, after all, to the east. Improvement of unavoidable environmental administrative lawsuit system, but China's current environmental situation is concerned, is still a long way to go. The plaintiff qualification to expand environmental administrative lawsuit, extend the scope of accepting cases, the rational allocation of burden of proof, the establishment of environmental public interest litigation system, not only to improve legislation, ordinary people also need to enhance awareness of rights, constantly put environmental cases down before the judge, forcing it to further improve the judicial level, thereby reducing the plaintiff qualification threshold. Moreover, the independence to further realize the court trial, change the local government finances is key to control the court. Really hope to regain the green mountains and rivers, the blue sky and white clouds, really hope that no longer see pollution victims eyes that desperate, I hope no repeat of the tragedy, the green seed sowing time of the divine life!

Reference.

         1Xinhuanet.com Shenzhen on 28 November, (reporter Li Weiwei, Li Nanling)

2Zhang JianweiDong Wentao, Wang Yu. Study on [C]., environmental litigation system China Law Society Annual Conference of environment and resources law research, 2003,9,17

3Qi DaomengThe administrative litigation of public environmental welfare. Thinking about several problems of [J]

4Huang Minghe. on the breakthrough and design of [C] Chinese environmental public interest litigation theory

5Cai Shouqiu. "environmental enforcement and environmental administrative lawsuit" [M]. Wuhan: Wuhan University press, 1992Year Edition

6Jin Ruilin. "environment and resources protection law" [M]. higher education press, 2001Year Edition.

7Zhang JianweiDong Wentao, Wang Yu. Study on [C]., environmental litigation system China Law Society Annual Conference of environment and resources law research, 2003,9,17

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