论环境公益诉讼的权利基础和起诉顺位——兼谈自然资源物权和环境权的理论要点

Study on the Basement of the Right and the Prosecute Sequence of Environmental Public Interest Litigation——Both on Theory points of real right to natural resources and environmental right

环境公益不同于由多个人身和财产私益所构成的环境众益,它是指环境基于其生态服务功能而提供可满足人类多种需求的自然资源和生态产品所承载的公共性利益。当下法律框架下民事制度、行政制度和诉讼制度保护环境公益的不足,为自然资源物权和环境权的创设以及环境公益诉讼制度的确立萌生了现实上的需求。环境权、自然资源国家所有权和诉讼信托理论,为环境公益诉讼提供了权利依据,奠定了理论基础。实际上,我国的环境公益诉讼,包括公益性环境权诉讼、自然资源所有权诉讼和环境权信托诉讼三大类型。至于起诉顺位的设置,应依实体权利依据的不同而作相应安排:以自然资源所有权为基础,环保机关为第一顺位,检察机关为第二顺位,公民和环保组织为第三顺位;以环境权为基础,公民和环保组织为第一顺位,环保机关为第二顺位,检察机关为第三顺位。

Environmental public interest is different from the environmental private interests which are composed of personal or property private interests belong to many people. It is the public interest based on the function of the ecological service of the en- vironment carried by nature resource and ecological product that would be satisfied to the needs of human being. The inadequacy of the legal systems provided by civil law, administrative law and procedure law under the framework of present legislation to pro- tect environmental public interest supplies the demand to the establishment of the property right to nature resource and the right to environment and the regime of environmental public interest litigation. The environmental right, the ownership of nature resource belongs to the State are the substantive right basis of the environmental public interest litigation, and litigation trust is theoretical basement. So the orders of litigation should be arranged distinctively according to the different substantive right, in terms of the right to the ownership of nature resource, the environmental protection department is the first order, the prosecutorial organs is the second one and the citizen or environmental protection organization is the last one. But in terms of the right to environment, the citizen or environmental protection organization is the first order, the environmental protection department is the second one and the prosecutorial organs is the last one.