预防性环境民事公益诉讼的规范构造——以《关于审理环境民事公益诉讼案件适用法律若干问题的解释》第1条为中心

以事后救济为主的环境公益诉讼并不能完全实现原环境的恢复，环境议题从事后救济到事前预防的转捩，促就了预防性环境民事公益诉讼的因应。预防性环境民事公益诉讼的本质是通过诉讼程序落实风险管控的公法责任以发挥法院的环境规制作用，并弥补行政规制的不足。但既有预防性环境民事公益诉讼的规则过于模糊，存在适用盲点，亟需梳理内在规范构造。具体而言，以重大风险为启动前提，但应从“质”与“量”二维标准加以界定；以污染行为和破坏生态行为为审查对象，但应着力于以行为为主附带结果的审查标准；以公共利益为保护对象，但应区分环境公益与环境私益的实质内涵和顺位选择；以法律规定的机关与组织为诉讼主体，但应授予公民原告资格并肯定行政机关的独立参与人身份。除此之外，诉讼参与人之间的风险交流有助于推动预防性环境民事公益诉讼的进程，未来制度改革上应致力于商谈主义司法的形塑，通过强化法院职权以敦促风险交流的充分展开，最终促进法院环境规制权能的完善。 

The Normative Structure of Preventive Environmental Public Interest Litigation:Taking Article 1 of"The Interpretation of Several Issues on the Application of Law to Civil Public Interest Litigation Cases"as the Center

Environmental public interest litigation based on post-relief cannot fully restore the original environment. The transition from post-relief to pre-prevention on environmental issues promotes the response of preventive environmental civil public interest litigation. The essence of preventive environmental civil public interest litigation is to implement the public law responsibility of risk management and control through litigation procedures to give full play to the court's environmental regulations and make up for the lack of administrative regulations. However, the existing preventive environmental civil public interest litigation rules are too vague, and there are blind spots in the application, and it is urgent to sort out the internal normative structure.Specifically, major risks are the prerequisite for starting, but should be defined from the two-dimensional standards of “quality” and “quantity”; pollution behaviors and ecological damage behaviors are the objects of review, but should focus on behaviorbased review of incidental results standard; public interest is the object of protection, but the substantive connotation and priority selection of environmental public interest and environmental private interest should be distinguished; the law-provided agencies and organizations should be the subject of litigation, but citizens should be qualified as plaintiffs and affirmed as independent participants of administrative agencies. In addition, risk communication among litigation participants will help promote the process of preventive environmental civil public interest litigation. In the future system reforms, efforts should be devoted to the shaping of negotiating justice, and the power of courts should be strengthened to promote adequate risk communication. Unfold, and ultimately promote the improvement of the court's environmental regulation power.