论环境损害赔偿立法中的环境公益保护 --从环境民事公益诉讼的角度

环境民事公益诉讼制度,可以规定社会团体提起环境民事公益诉讼必须以其成员主张环境公益受损为先决条件;可以明确公权机关的诉权优先于公民或社会团体的诉权;可以将环境保护行政主管部门或者其他依照法律规定行使环境监督管理权的部门规定为法定提起环境民事公益诉讼的公权机关,将检察机关定位为监督和支持有关主体提起环境民事公益诉讼,对救济是否充分及时进行法律监督的机关.环境公益的民事救济应当采取以恢复原状、消除危险为主,以赔偿、停止侵害、排除危害为辅的方式,同时探索新的民事救济方式.环境民事公益诉讼中的赔偿对象可以确定为某种环境公益基金,该基金独立于政府,负责对环境公益的维护,并不限于受损的环境公益范围填补或增进环境公益.

Study on Structure of Environmental Civil Public Service Lawsuit System

The environmental civil public service lawsuit system,can stipulate that the precondition of public organizations' prosecuting the environment civil public service lawsuit must be that its member maintains his environmental public service has been damaged;it can define that the common right organs' prosecuting right is prior to the one of citizens or public organizations;It can stipulate the administrative responsible institution of environmental protection or other departments which exercise the environmental right of supervision and management according to the legal provisions as legal common right organs of bringing the environment civil public service lawsuit,and orientate the procuratorial organ as the legally supervised department of supervising and supporting citizens, public organizations,administrative responsible institution of environmental protection or other departments which exercise the environmental right of supervision and management according to the legal provisions to bring the environmental civil public service lawsuit,and of superintending whether the relief is abundant and in time or not.The civil relief of environmental public service should adopt the main ways such as restoring to the original state and dispelling danger,and the complementary ways such as compensation,stopping encroachment,getting rid of harm,and should explore the new way of civil remedy at the same time. The compensation target in the environmental civil public service lawsuit can confirm as the certain environmental public service fund,which is independent of the government,is responsible for the maintenance of environmental public service,and fills in and promotes environmental public service in the range that is not limited to the damaged environmental public service.