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生态损害作为一种不同于人身损害、财产损害的新型损害,传统环境侵权制度难以对其作出应对。对于生态损害的诉讼主体问题,目前法律上还未有定论。在现行主客二分的法律世界中,赋予生态要素或自然物以主体资格提起诉讼,存在着法律上不可逾越的障碍。从理论上分析,对生态损害诉讼的原告主体采取以行使环境监督管理权的部门为主导,同时以公民个人和环保组织为补充的模式较为适宜。我国应修改现行法律,赋予政府及环境行政部门、公民个人或环保组织以原告资格,并建立相应的环境公益诉讼制度,救济已经发生的生态损害。
As a new type of damage that is different from personal injury and property damage, ecological damage can not be dealt with by traditional environmental tort system. At present, there is still no legal conclusion on the litigant subject of ecological damage. In the current legal world where the subject and object are divided, there is a legally insurmountable obstacle in giving litigation of the ecological elements or natural objects with the main body qualifications. From the theoretical analysis, it is more appropriate for the plaintiff’s subject in the ecological damage litigation to be dominated by the department that exercises the power of environmental supervision and management, and at the same time, the model of individual plaintiff and the environmental protection organization should be supplemented. China should amend the existing laws and grant the government and environmental administrative departments, individual citizens or environmental protection organizations the qualification of plaintiffs and set up corresponding environmental public interest litigation system to remedy the ecological damage that has taken place.