排除危害类公益诉讼理论、制度和实践

我国环境法学界大多从环境民事责任形式角度论述排除危害。然而,由于环境危害有公益危害和私益危害之区别,制度上理应有排除危害类公益诉讼与排除侵害类私益诉讼之划分。排除危害类公益诉讼的理论基础在于良好环境权的公法保护理念与法院司法审查角色拓展和职能限制理论。决策者应以上述理论为基础,综合考量我国现实状况,将排除危害类公益诉讼制度适用范围从环境污染类危害扩展到生态破坏类危害领域,并设计正当的诉讼程序和合理的裁判方法。

Theory, System and Practice of Public Interest Litigation in Removal of Harmfulness

Most scholars in China discuss the removal of harmfulness in the view of civil liability of environment. However, since the harmfulness to environment differs into public interest and private interest, it is reasonable to divide it into public interest litigation and private interest litigation. The theoretical basis for public interest litigation in removal of harmfulness lies in the notion of public law protection for environmental rights and the status of the court in judicial review. Decision makers should consider the status quo of China based on those theories, and extend the public interest litigation in removal of harmfulness from environmental pollution to ecological destroy, and design reasonable litigation procedure and judging method.