On Legal Liability Of Third-party Treatment Of Enterprise Environmental Pollution

Since 2012,China has committed to the development of an ecological civilization,abandoned the backward approach of "grow first,clean up later",and established a new development concept of "green mountains are gold mountains".As views changed,third-party treatment is in the ascendant.The third-party treatment of enterprise environmental pollution refers to the polluters that pay the fees agreed in the contract and let the environmental service company treat the industrial pollutants they emit during the production process,and finally achieve the market-oriented pollution treatment model of discharge standards.On the one hand,this model makes a big difference.Firstly,it promotes the intensification,specialization and industrialization of pollution control.Secondly,it solves the problem that traditional pollution control mode consumes human,material and financial resources of enterprises.On the other hand,this model brings some problems.Signing the environmental service contract and introducing the third party complicate the legal relationship.In addition,due to the ambiguous wording of "subject responsibility" in the responsibility distribution in the third-party treatment model in China’s regulatory documents,polluters and environmental service companies are mutually making excuses.This leads to chaos in judicial practice.Legal responsibility for third-party treatment of enterprise environmental pollution refers to the adverse legal consequences that polluters and environmental service companies should bear in the process of performing environmental service contracts due to their illegal acts that cause or may cause environmental damage,including environmental civil liability,Environmental administrative responsibility and environmental criminal responsibility.Polluters can change the responsibility for pollution control into economic payment responsibility by signing environmental service contracts with environmental service companies.However,the content of the contract cannot be used as an exemption when the environmental responsibility arises.According to the different ownership of the pollution control equipment agreed in the environmental service contract between the two parties,the third-party treatment model of the enterprise’s environmental pollution can be divided into an operations and maintenance mode and a construction and operation mode.According to different modes,this paper proposes suggestions on the division of responsibilities of three different types.First of all,in terms of environmental civil liability,in the operations and maintenance model,regardless of whether the polluter is at fault,it shall bear tort liability;the environmental service company shall bear joint and several liability only in joint infringement with the polluter.In the embedded construction and operation mode,if both parties constitute joint infringement,they shall assume joint liability;If one of the two parties is at fault,both parties constitute un-internuncial joint tort,and they shall bear the corresponding liabilities in accordance with Articles 11 and 12 of the Tort Liability Law;the environmental service company cut off the pollution control of the polluter and assumed the tort liability independently.Secondly,with regard to the administrative responsibilities assumed by the administrative counterpart,in the operations and maintenance mode,whether or not the environmental service company caused excessive discharges,the polluters bear external administrative responsibility,and the environmental service company doesn’t have the qualification to independently assume administrative responsibility;Where the environmental service company causes the polluter to assume administrative responsibility,the environmental service company shall bear the liability for breach of contract to the polluter.In the construction and operation mode,whoever causes excessive emissions will bear administrative responsibility.Finally,in terms of criminal responsibility,the crime of environmental pollution should be determined in strict accordance with the legal principle of criminal punishment.At the same time,environmental civil liability can coexist with environmental administrative responsibility and environmental criminal responsibility.Environmental civil liability shall be given priority.The performance of environmental civil liability will also affect environmental administration and criminal responsibility.