On The Relief Of Environmental Noise Damage

Environmental noise has always been one of the disturbing factors in the production and life of citizens.Through “the law on the prevention and control of environmental noise pollution ”and “the standards on the emission of environmental noise”,China has made corresponding provisions on the prevention and control of noise pollution.“Noise pollution”refers to the violation of environmental noise that exceeds the noise emission standard stipulated by the state and interferes with the normal life,work and study of others.At the same time,there are also environmental noise infringement which is not enough to constitute“noise pollution”but also causes impact on life and production of citizens.Environmental noise may affect the personal,health and property rights of citizens.The remedy of environmental noise infringement includes the right of preventive claim and the right of compensation for damage.The number of noise complaints reported in the report on prevention and control of environmental noise pollution in China and the number of noise pollution dispute cases in judicial practice have shown an increasing trend over the years.By analyzing the cases of noise pollution disputes in judicial practice,the author finds two problems: first,there is a dispute over the applicable conditions of the right of preventive claim,and a large number of cases take the noise emission beyond the standard as a precondition for the exercise of the right of preventive claim,which results in the failure of the function of the right of preventive claim.Secondly,there are limitations in the remedy of damage compensation.For example,the aggrieved person is unable to obtain damage compensation due to his/her inability to diagnose the physical and mental damage within a short period of time,and the scope of liability for property damage compensation lacks a definite and consistent standard,resulting in incomplete compensation for property damage.There is a dispute about the application condition of the right of preventive claim,that is,in judicial practice,there is a dispute among the courts about whether the illegality should be taken as the constitutive element to determine whether the noise infringement constitutes the environment of noise.This is mainly due to legislative conflicts: “general provisions of the civil law”,“property law” and “law on the prevention and control of noise pollution”stipulate that excessive noise emission is a prerequisite for the constitution of tort and the right of preventive claim,while the environmental protection law and tort liability law do not require the premise of“illegal” in their legal liability.As a result,some courts believe that only when the noise emission standard stipulated by the state is exceeded can the infringement be constituted and the right of preventive claim be asserted,while others believe that as long as the nuisance exceeds the limit of the tolerance obligation,the infringement has been constituted.However,whether from the perspective of fault or illegality,excessive noise emission is not enough to constitute the elements of environmental noise infringement.At the same time,the analysis of judicial practice cases shows that it is unreasonable to take the discharge standard as the applicable condition of preventive relief or to apply the right of preventive claim without limitation.Therefore,the author puts forward that noise emission exceeds the reasonable scope of the tolerance obligation of the claimant,which is the applicable condition of the right of preventive claim.At the same time,the author thinks that the reasonable scope of the tolerance obligation should have flexible standards,that is,different standards should be set in different environments.For example,in the daily living area of the public,the standard of tolerance obligation should be stricter than the national standard of noise emission,and the noise emitters should assume higher obligations.In order to protect the expected interests of enterprises in industrial areas and other environments,the reasonable scope of tolerance obligation can be determined by referring to the environmental noise emission standards stipulated by the state,so as to realize the sustainable development of industrial activities and social benefits.The limitation of the remedy of damage compensation is mainly reflected in two aspects: first,the identification of human and health damage caused by environmental noise;Secondly,the determination of the scope of property damage caused by environmental noise.First of all,it is very difficult to identify the fact of human and health damage caused by environmental noise in practice.The damage caused by noise invasion to human body is latent,progressive and hidden,so it is difficult to prove the damage to human body and spirit caused by noise invasion.In this regard,it is necessary to introduce the “burden of proof to reduce the use”,reduce the standard of proof of the fact of damage,and allow the presumption of the existence of the fact of damage.That is to say,considering whether the time length,intensity and persistence of noise damage are all above the tolerance of normal people,the establishment of the damage fact is presumed based on the standard of the general public.Secondly,due to the lack of unified standards in practice,the courts have contradictions in determining the scope of compensation for property damage caused by noise infringement.The author considers that in addition to the scope of compensation for property damage already recognized by the courts,“loss of use interruption” and “loss of value after repair”should be added to the scope of compensation.At the same time,in order to avoid excessive compensation,“interruption loss of use” must be the actual and necessary loss suffered by the agitator due to the damage of the actual demand of the property,and “value derogation of the damaged property after repair”can only be the value derogation of the property caused by the functional impairment of use of the repaired property.Finally,the author thinks that in real life,there exists the phenomenon of pure economic loss caused by noise infringement,which is manifested as “degradation of real estate value” caused by noise infringement and “inability of production and operation” caused by noise infringement.Although there is little discussion on the pure economic loss caused by noise in the theoretical and practical circles in China,with the development of the market,we need to pay more attention to the phenomenon of pure economic loss caused by noise.