The Application Of The Elimination Of Danger And Damages In The Environmental Law

Typically, the civil liability in the environmental law includes two ways of "thecompensation for damage" and "the elimination of danger and damages".Theelimination of danger and damages,which is a preventive and non-compensatory civilliability for public good, is more positive than the compensation for damage.However,our legislative and judicial practice attaches more importance to the compensation fordamage than the elimination of danger and damages. This article tries to providetheoretical support and give some suggestion for the application of the elimination ofdanger and damages after studying the basic theory and the practices.The first chapter mainly introduces the basic theory, including connotation,anspruchsgrundlage, methods of bearing civil liability and necessity,on the purposeof a preliminary understanding of the elimination of danger and damages.The second chapter mainly discusses the judicial practice of the eliminationof danger and damages and analyzes causes from the legal liability itself and the rulesincluding the constitutive requirements, capacity to prosecute, relief procedure, etc.the Tort Law of the People’s Republic of China, which unifies the inconsistent rule indifferent laws and improves the civil proceedings, will bring some changes.The last chapter provides two advices to improve the the application of theelimination of danger and damages, including building the system of environmentalcivil public prosecution and improving the principle of the interest balance. As thetheory and practice of environmental law is insufficient, it will take a long time toestablish the system of environment public interest litigation. We can first establishthe system of environmental civil public prosecution as transition. Learning from theUnited States, Germany and Japan, the principle of the interest balance may be ruledand regulated in the environmental basic law.