摘要
预防性环境民事公益诉讼贯彻了风险预防原则.分析典型案例发现,侵权要件式证明责任规则预设并不能够适配预防性环境民事公益诉讼的证明.预防性环境民事公益诉讼的发生逻辑有一系列不确定性,其事实认定模式是风险控制型而非传统回溯型.这导致预防性环境民事公益诉讼的证明需要面对和处理特有的重大风险不确定性,具体包括重大风险的定义、重大风险的发生、重大风险的承担均具有不确定性.为了应对和消减不确定性,未来从概念、方法和规则方面入手,采取从严限缩解释重大风险的定义、培根式概率评估重大风险的发生、经验规则认定重大风险的承担等方式重构证明责任规则.
Abstract
Preventive environmental civil public interest litigation implements the principle of risk prevention.Analyzing typical cases,it is found that the preset burden of proof rules based on the elements of infringement cannot be adapted to the proof of preventive environmental civil public interest litigation.The occurrence logic of preventive environmental civil public interest litigation is a series of uncertainties,and its factual determination mode is risk control rather than traditional retrospective.This leads to the need for proof of preventive environmental civil public interest litigation to face and deal with unique major risk uncertainties,including the definition of major risks,the occurrence of major risks,and the assumption of major risks,all of which have uncertainties.In order to cope with and reduce uncertainty,the future should focus on the concept,methods,and rules of major risks,and adopt methods such as strict limit interpretation of the definition of major risks,Bacon's probability assessment of the occurrence of major risks,and empirical rules to determine the assumption of major risks to reconstruct the proof of responsibility rules.
NETL
NSTL
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