论预防性环境民事公益诉讼中“重大风险”的司法认定.

Preventive environmental public interest litigation contains the inherent mechanism of risk prevention, which can help improve the regulatory system against environmental risks and respond to the public’s demand for preventing environmental risks. Currently, although China has adopted the expression of ‘significant risk’ at the legislative level, legislators have not provided relatively comprehensive and specific explanations on its inherent nature, specific judicial identification methods, and proof standards for specific causal relationships. How to correctly identify and confirm ‘significant risks that harm public interests’ is left to the discretion of the courts: either by uniformly recognizing administrative actions as references, directly adopting risk assessment results from scientific and technological evaluations, or independently evaluating significant risks. It is also unclear whether the term applies to environmental pollution or ecological destruction. Fundamentally, due to a lack of a unified understanding of ‘significant risks,’ judges mostly make judgments based on environmental risk assessment reports, which cannot properly handle the relationship between preventive environmental judicial powers and environmental administrative powers, resulting in judicial discretion becoming formalistic. Fundamentally, the judicial determination of significant risks faces limitations such as inconsistent connotations, misplaced recognition subjects and unclear standards, and rigid confidence mechanisms, making it difficult for lawsuits to correctly handle the dialectical relationship between judicial initiative and restraint. To solve the confusion caused by unclear concepts and mechanical judgments and to properly give play to the judiciary’s initiative, this article responds to practical problems in three ways: first, defining the connotations of ‘significant risks,’ clarifying their concepts, and confirming their basic objects by taking a literal decomposition and responsibility backtracking approach; second, defining the identification criteria for significant risks, using dynamic adjustments under risk assessment uncertainty as the premise for defining identification criteria and using the high probability of serious harm consequences as the causal requirement for identification criteria; and third, optimizing the confidence mechanism of significant risks, using the organic combination of objective scientific rationality and subjective social rationality as the inherent logic of the confidence mechanism and adopting a phased confidence mechanism arrangement for two different levels of significant risk identification. [ABSTRACT FROM AUTHOR]