【摘要】 司法能动在判例法国家是一种积极、类似立法的活动,但在我国是一种更为保守,仅仅游离在释法边界的概念,因此我国的司法能动应当坚持有法可依、有法必依。环境司法能动是法院立足于司法实践层面,针对环境问题研究、推进环境保护、维护环境权益的司法理性保障模式,其有助于弥补环境立法的滞后、实现环境司法个案的公正以及保障公民和社会利益。环境司法能动应当在自由裁量权行使、调解运用和司法克制这三个方面保持相应的限度。当前我国存在的环境立法本身缺陷、审判队伍素质参差不齐、环境司法易受干扰等问题都会导致环境司法乱动、盲动。为了保障公民环境权、兼顾社会各方面利益,我国应当尽快完善环境诉讼程序立法;加强环境司法能动原则上的制约,以克制为前提、坚持合法性和合理性原则;建立法院内外监督约束机制以及健全案件责任终身制。更多还原

【Abstract】 The definition of Judicial Activism in case law countries is an active and similar legislative activity, but it is a more conservative concept which is only free from the boundary of interpretation in China. Judicial Activism in China should adhere to that there are laws to go by and the laws are observed and strictly enforced. The Judicial Activism of environment is a judicial rational guarantee mode based on the judicial practice level, aiming at environmental research,promoting environmental protection and safeguarding environmental rights and interests. It can help to make up for the lag of environmental legislation, realize the impartiality of environmental judicial cases and safeguard the interests of citizens and society. The Judicial Activism of environment should maintain corresponding limits in the exercise of Discretion, Mediation and Judicial Restraint. At present, China’s environment legislation is imperfect, the quality of the trial team is uneven, and the environment judicial is easy to be disturbed. All of these problems may lead to the Judicial Disturbance and Judicial Recklessness. Therefore, in order to protect civil environmental rights and take into account the interests of all sectors of society, our country should perfect the legislation of environment litigation procedure as soon as possible, strengthen the principle restraint in the Judicial Activism of environment which takes restraint as the premise and adhere to the principle of legality and rationality, establish the supervision and restriction mechanism inside and outside the court, and perfect the life-long system of case responsibility.更多还原