（中国政法大学 民商经济法学院, 北京 海淀区 100088）
关键词：法律适用 规范性要件评价 请求权基础回归体系 自立规则
Dilemma of Law Application in Environmental Civil Public Interest Litigation and the Solution thereof
YANG Xiuqing, XIE Fan
(China University of Political Science and Law, Beijing 100088 China)
Abstract: Though environmental civil public interest litigation has been widely applied in judicial practice, it has the following problem in its law application. First, there are significant differences lying in current judgments, between the recognition of nature of action: environmental civil public interest litigation or other private lawsuits. Second, in the trial of environmental civil public interest litigation and similar cases, the present cases also indicated the diversities of procedure choices as well as final rulings by individual judges. The reason is the undetectable exist of normative constitutive requirements hiding in the conception of “public interest”, which is considerably difficult to evaluate under current civil legal system. The underlying reason is therefore the lack of independent basis of claim right of this new litigation. On this ground, when judges have to borrow the claim right of traditional environmental tort lawsuit in subsumption process of environmental civil public interest litigation, the confusion of law application occur. Thus, defining the basis of claim right in environmental civil public interest litigation and making more delicate procedure rules thereof will contribute to the access to justice together with judicial unification.
Key words: Law Application; Evaluation of Normative Constitutive Requirements; Basis of Claim Right; Return to Framework; Independent Rules Creating