论环境行政公益诉讼的谦抑性——以检察机关提起环境行政公益诉讼为限

检察机关提起环境行政公益诉讼,是促进行政机关履行环境保护职责的重要方式.环境行政公益诉讼涉及检察机关、法院和行政机关三个机关,需要处理好司法权与行政权之间的关系.一方面,环境司法具有能动性,容易导致司法权与行政权之间的冲突;另一方面,基于司法有限性与环境法行政实施的特征,需要重视司法谦抑性问题.而如何认识环境行政公益诉讼的谦抑性,需要从理论和实践的维度进行分析.在检察机关提出环境行政诉讼时,应当尊重行政机关的首次管辖权、重视行政公益诉讼的诉前程序、尊重行政自由裁量权、重视行政不能问题.当然,这种谦抑并不是绝对的,为有效发挥行政公益诉讼的功能,应当把握好这种谦抑性的限度,通过明确强制诉讼范围、确定实体性裁判的要件、尊重诉讼和解等方式来处理好司法谦抑与司法监督的关系.

On the modesty of environmental administrative public interest litigation: Limited to environmental administrative public interest litigation filed by procuratorate

Procuratorate bring environmental administrative public interest litigation, which is an important way to promote administrative organs to fulfill their environmental protection duties. Environmental administrative public interest litigation involves three organs:procuratorates, courts and administrations, and the relationship between judicial power and administrative power needs to be handled well. On the one hand, environmental justice is proactive, and it is easy to cause conflicts between judicial power and administrative power; on the other hand, based on the characteristics of judicial limitation and administrative implementation of environmental law, attention should be paid to the problem of judicial modesty. How to understand the modesty of environmental administrative public interest litigation needs to be analyzed from the theoretical and practical dimensions. In environmental administrative litigation filed by procuratorates, we should respect the first jurisdiction of the administrations, the pre-litigation procedures of the administrative public interest litigation, the administrative discretion, and the issue of administrative inability. Of course, this modesty is not absolute. In order to play the role of administrative public interest litigation effectively, we should grasp the limitations of this modesty, by clearly defining the scope of mandatory litigation, determining the requirements of substantive judgments, and respecting litigation settlement, to deal well with the relationship between judicial modesty and judicial supervision.