论我国环境公益诉讼的归位与诉讼模式的选择

The Return of Environmental Public Interest Litigation and Choice of the Litigation Model

在当前的司法实践中,为应对环境民事公益诉讼面临的专业性和科技性强、图利起诉主体之嫌等问题,我国在环境民事公益诉讼制度中突出强化了司法权,并要求行政权积极配合司法权,这极易造成司法的错位与越位,损害司法权与行政权的合理分工与权力平衡。通过建立环境行政公益诉讼,明确其与环境民事公益诉讼的主辅地位固然能解决环境行政权与环境司法权错位与越位问题,但根据民事和行政传统二分法,这必然会形成环境民事公益诉讼与行政公益诉讼的分离诉讼模式,造成新的理论冲突与实践困境。因此,从长远来看,应构建统一的环境公益诉讼模式,以保证我国环境公益诉讼回归应有之位。

In the current judicial practice,in order to deal with such problems confronting environmental civil public interest litigation as strong professional and technological features and mercenary subject of litigation,China＇s environmental public interest litigation system strengthens the judicial power and requires the executive power to readily cooperate with the judicial power,easily causing judicial misalignment and ultra vires,damaging the rational division of labor as well as the balance between jurisdiction power and executive power.Though this question may be solved by the establishment of environmental administrative public interest litigation and the clarification of the mainstay-or-subsidiary position between it and environmental civil public interest litigation,it is inevitable,according to the traditional civil-versus-administrative division,to form the separation of environmental civil public interest litigation and environmental administrative public interest litigation,causing new theoretical conflicts and practical dilemmas.Hence,in the long run,the theory of traditional procedure law should be broken through,so as to build unified models of environmental public interest litigation,to ensure that environmental public interest litigation returns to its proper place,and to achieve the complementation and restriction of the judicial power and the administrative power.