论环境民事公益诉讼原告处分权的规范路径——事前、事中和事后的三维互动

The normative path of the plaintiff′s disposition right in environmental civil public interest litigation——Three-dimensional interaction before, during and after the event

环境民事公益诉讼冲击了原告处分权制度,而完全处分权说、程序处分权说和无处分权说均不能较好地解决问题。有3种利益紧张关系影响了原告处分权的获得与限度:诉求公益和主体私利的紧张、利益无主与保护必要的紧张,以及诉求公益、被告私益与原告他益的三角紧张。建议通过法律拟制解决原告处分权来源问题,事前与配套规则共同设置门槛,事中给予权利以维持两造平等,事后建立评价监督机制以排除后顾之忧。事前、事中和事后三维良性互动,共同构建原告处分权的规范路径。

Environmental civil public interest litigation has impacted the plaintiff′s disposition system,and the existing full disposition right theory,procedural disposition right theory and no disposition right theory can′t solve the problem well.There are three kinds of interest tensions that affect the acquirement and limitation of the plaintiff′s disposition right,including the tension of appealing for public welfare and the private interests of the subject,the tension of the interests of no owner and the necessary protection,and the triangle tension of appealing for public welfare,the private interests of the defendant and other interests of the plaintiff.It is suggested to solve the problem of the source of the plaintiff′s disposition right through legal drafting,setting the threshold together with the supporting rules before the event,giving the right during the event,maintaining the equality between the two parties,establishing the evaluation and supervision mechanism after the event and eliminate the worries behind.The three-dimensional positive interaction among before,during and after the event is to jointly construct the normative path of the plaintiff′s disposition right.