环境民事公益诉讼中司法权与行政权的关系

A Study on the Relation Between Judicial Power and Executive Power in Environmental Civil Public Interest Litigation

在我国环境民事公益诉讼制度构建和完善过程中,虽然已经关注到行政权的作用并对其作了初步规范,但从现行规定来看,司法权与行政权关系错位现象依旧明显:一方面,在以维护环境公益为目的的制度预设和司法能动理论的共同影响下,司法权存在僭越行政权之嫌疑;另一方面,行政权的优先性和专业性尚未得到充分体现,环境行政执法前置程序缺失,法院立案后告知制度不合理,行政权在审判阶段和执行阶段的作用也未得到有效彰显。因此,要在环境民事公益诉讼中实现司法权与行政权的优势互补,既要严格遵守司法权的谦抑性和被动性,又要尊重行政权的优先性和专业性,注重发挥“行政权协助司法权”之功能。

In the process of the construction and improvement of environmental civil public interest litigation system,although the role of executive power has been paid attention to and has been preliminarily regulated,according to current regulations,the phenomenon that the relation between judicial power and executive power is misaligned is still obvious:On the one hand,under the joint influence of the institutional presupposition for the purpose of protecting environmental public interest and the theory of judicial activism,judicial power is suspected of overstepping executive power;On the other hand,the priority and professionality of executive power have not been fully reflected,the pre-procedure of administrative enforcement of environmental law is lacking,the court notification system after filing a case is unreasonable,and the role of executive power in the trial stage and the execution stage has not been effectively demonstrated.Therefore,to realize the complementary advantages of judicial power and executive power in environmental civil public interest litigation,we should not only strictly abide by the modesty and passivity of judicial power,but also respect the priority and professionality of executive power,and pay attention to the function that“executive power assists judicial power”.