检察环境行政公益诉讼受案范围的实证分析

Analysis of the Scope of Case Acceptance of the Environmental Administrative Public Interest Litigation Brought by the Procuratorate

检察环境行政公益诉讼的受案范围是一个理论和实践交叉的疑难课题,涉及被诉主体类型、被诉违法行为类型和诉讼拟救济利益类型三个核心要素。通过对已有检察公益诉讼案例的分析和理论比较可知,检察环境行政公益诉讼的被告类型应限于国务院或地方各级人民政府中对环境、生态、资源保护领域负有监督管理职责的职能部门,可以是单一被告,也可是共同被告,但一般多属于普通共同诉讼。被告的涉诉行为可能是环保领域的行政不作为,也可能是违法行使职权。检察环境行政公益诉讼应以救济环境公共利益为主,环境公共利益应区别于基于国家自然资源所有而产生的国家利益。

The scope of case acceptance of the environmental administrative public interest litigation brought by the procuratorate is a difficult problem both in theory and in practice. Three core elements of the scope of case acceptance are involoved：the type of the subject prosecuted,the type of the behavior prosecuted,and the type of the benefit to be remedied by the action. Case analysis of the public interest litigations brought by the procuratorate and theoretical comparison show that the type of defendant of the environmental administrative public interest litigation brought by the procuratorate shall be limited to the functional departments,who have supervisory and administrative responsibilities in the field of environmental,ecological and natural resources protection,under the State Council or the local governments at various levels. The number of defendant can be one or more than two co-defendants,but the majority of the cases of co-defendants belong to the type of ordinary co-defendants.The defendant＇s action may be an administrative omission in the field of environmental protection,or an illegal exercise of administrative duty. The interests of such litigation should mainly aim at the environmental public interest. Environmental public interests are different from the national interests arising from the ownership of the state-owned natural resources.