论环境利益“双轨”保护制度

Dual Track System in the Protection of Environmental Interests

环境利益属于公共利益。传统法律理论认为,公共利益的保护是政府的职权和责任,只有政府是公共利益的代言人。本文认为,除了政府可作为公共利益的代表外,也应当允许社会公众作为公共利益的代表,直接参与公共利益的维护,即建立环境公益的政府和公众的双轨保护制度。为此,特别应在环境保护立法中建立和完善公众参与制度,赋予公众独立的环境保护主体资格和相应的权利义务。

Environmental interests are a kind of public interests. In the traditional legal theory, public interests protection is the power and responsibility of governments which are the only body who can represent public interests. This article argues that in addition to government, general public should be permitted to be representatives of public interests and to participate in the protection. The dual track system with both government and public in environmental interests protection should be established. Therefore in environmental legislation the public participation system ought to be established and improved, public should be qualified as legitimate subjects in environmental law and corresponding rights and duties should be given.