An Analysis of the Litigation Choice of Procuratorial Environmental Public Interest Litigation : Focusing on Cases of Environmental Infringement Involving Civil and Administrative Law Intersections

检察环境公益诉讼的诉讼选择路径之探析—以民行交叉环境侵害案件为对象

In cases where environmental infringement which intersect with both civil and administrative law, the procuratorate faces a challenge of what kind of litigation to initiate, and clarifying the choice of litigation is crucial. When environmental administrative public interest litigation or environmental civil public interest litigation can both protect the environmental public interest efficiently, these two lawsuits would present a concurrence pattern; the procuratorate should initiate an environmental administrative public interest litigation, to respect the rational allocation of authority and to embody the judicial philosophy of addressing the source of the problem. However, when environmental administrative public interest litigation is hard to protect environmental public interests adequately, it is crucial to break the pattern of concurrence and achieve coexistence between two lawsuits.The procuratorate should initiate environmental administrative public interest litigation attached by civil public interest litigation, so as to use the combined force of administrative and judicial authorities to achieve comprehensive regulation of environmental infringement. Furthermore, in the institutional design of environmental administrative public interest litigation attached by civil public interest litigation ,the necessity for initiating litigation should be clarified. The differentiated coexistence pattern, which is led by environmental administrative public interest litigation as well as supplemented by environmental civil public interest litigation, should be constructed. It is crucial to clarify the legal process management of the special form of “two lawsuits” in the coexistence model, so as to optimize effectiveness of environmental governance.

在民行交叉的环境侵害案件中，检察机关面临启动何种诉讼之难题，厘清诉讼选择路径具有必要。当环境行政公益诉讼或者环境民事公益诉讼均能有效维护环境公共利益时，两诉呈现竞合模式，此时检察机关应提出环境行政公益诉讼，以尊重权力的合理配置、贯彻诉源治理的司法理念。当环境行政公益诉讼无法充分保障环境公共利益时，应突破两诉竞合实现两诉并存，此时检察机关应提起环境行政附带民事公益诉讼，以行政权与司法权的合力实现对环境侵害行为的全面规制。另外，在环境行政附带民事公益诉讼的制度设计上，应确立诉讼启动的必要性原则，构建以环境行政公益诉讼为主导、环境民事公益诉讼为补充的差异化并存模式，厘清并存模式下“两诉”特殊形态之程序处理，以优化环境公益诉讼的整体治理效能。