大同小异抑或貌合神离?中美环境公益诉讼比较研究

Just Looks like Twins:Comparative Research on Environmental Public Interest Litigation between China and U.S.

美国公民诉讼原告范围宽泛而起诉资格严苛,只能在有特别立法的具体领域、针对法定违法行为、在违法状态存续时提起,受"通知"、"勤勉起诉"等诉前程序制约,以禁令为主要救济手段,鼓励机构或部门干预以更充分地保护国家利益,诉讼费用可双向转移,同时救济原告私益与国家利益。我国的环境民事公益诉讼在这些方面与美国有很大的不同,其根源在于理论基础的差异。从理论层面来看,美国制度具有"公法私法化"色彩,而我国具有"私法公法化"特征。尽管我国制度看起来比美国更为宽泛,但实效不佳,存在诸多疑难。环境公益诉讼内在地兼具公、私不同属性,须妥善处理诸多问题,其良好实施有赖于法律层面的细密规则,我国在此方面任重而道远。

Citizen suit in America has a wide plaintiff scope but rigid standing rules,and it can be only filed against illegal action in some special fields,which have made citizen suit clause restricted by prior procedures such as Notice and Diligent Prosecution. It employs injunction as the primary method of redress,encourages agency or department to intervene with litigation to protect state interest fully.Meanwhile,Citizen suit in America has bilateral litigation cost shift system and remedies both plaintiff and state’s interest. All of these features are very different from China. From theoretical perspective,citizen suit in America could be described as Privatization of Public Law in contrast with China ’s Publicization of Private Law. Although it seems that China’s environmental public interest litigation can be put into practice more freely and wildly,it suffers from bad efficacy and many difficulties in reality.As a kind of special institution which intrinsically combined with public and private characteristics,environmental public interest suit has to deal with many problems cautiously with detailed law rules,otherwise,it cannot play its due value. All in all,there is still a long way to go in China concerning environmental public interest suit.