中美环境公益诉讼比较研究

Environment Public Interest Litigation:From the Perspective of Comparative Law

环境公益诉讼发端于美国,作为一种公民执法,旨在调动公民和社会组织监督环境法的遵守和执行,以弥补环境保护中所存在的政府失灵和市场失灵的缝隙。中国近年来修订了《环境保护法》、《民事诉讼法》等法律,明确允许部分非政府环保组织可以代表公共利益对污染者提起环境公益诉讼。美国的环境公益诉讼主体资格分为司法上的诉讼资格、非司法上的诉讼资格以及谨慎诉讼资格三种,既有公民个人的诉讼也有社团组织的诉讼,两者有其各自的判断标准;而中国法律只允许法律规定的机关以及部分社会组织作为原告提起环境公益诉讼,公民个人则不可以提起公益诉讼。在诉讼成本的转移方面,美国国会认为律师必须生存,因此,法律规定取得压倒性优势胜诉的原告律师可以获取律师费,诉讼费由败诉的当事人来承担;而中国法律并无相关规定,在司法实践中,部分法院判决由败诉的被告承担诉讼费和原告的律师费。为了鼓励环保组织及环境律师从事环境公益诉讼活动,应当从制度层面解决从事环境公益诉讼原告的律师费问题。

Environmental public interest litigation has been invented in the United States as citizen＇ s enforcement, which was purported to motivate citizens and social organizations supervising the compliance and enforcement of environmental law, in order to fill the gap created by government failure and market failure in environmental arena. The Environment Protection Law of PRC and Civil Procedure Law of PRC have been amended in recent years, they explicitly allow some social organizations to sue polluters on behalf of public interest, that＇ s a legislative breakthrough in China. Compared with American environmental public interest litigation, there are only some NGOs qualified to file suit into court, individual citizens are not permitted to sue the violators on public behalf, but they are in the U.S. Plaintiffs of environmental public interest litigation fall into three categories in the United States, Article III standing or jurisdictional standing, statutory standing or non-jurisdictional standing, and prudential standing. There is both individual standing and organizational standing, but the criteria of the two sorts are different. With regard to the transfer of litigation costs, the Congress held that lawyers must eat, therefore, plaintiff who prevailingly wins the lawsuit will be awarded lawyer＇ s fees, the costs of suit will be assumed by defendant, while in China there is no statutory provisions relating to this issue. In judicial practice, some environmental tribunals in China have awarded lawyer＇ s fees to plaitiff＇ s lawyer when he or she won the case, but the issue should be solved through institutional arrangement.