Research On Punitive Damages For Damage To The Ecological Environment

On January 1,2021,the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")came into force.In Article 1232 of the Civil Code,the content of "responsibility for ecological damage" has been added as a new content in the field of damage to the ecological environment as tort liability.Before the promulgation of the Civil Code,punitive damages were only stipulated in the fields of food safety and consumer rights protection,and did not involve damage to the ecological environment.Therefore,the new content of the Civil Code provides more comprehensive protection for the personal,property rights and ecological interests of the infringed.The Civil Code and judicial interpretations only make general provisions on punitive damages for damage to the ecological environment,but do not clearly stipulate the constituent elements of liability,the attribution of punitive damages,the discretion and calculation method of judges,and the nature of litigation.Therefore,it is necessary to improve legislation from the following aspects:First,the nature of punitive damages litigation is classified into two types:ecological and environmental public interest litigation and private interest litigation.Public interest litigation is initiated by a state organ,and punitive damages for ecological and environmental damage are realized through the establishment of a special fund,and private interest litigation is initiated by the infringed party,establishing the right to claim punitive damages for private interests.Second,"intentional" in the subjective elements cannot fully cover the subjective factors of punitive damages for damage to the ecological environment,and it is also necessary to absorb the element of "gross negligence" in the subjective elements of punitive damages for damage to the ecological environment;Third,when exercising punitive damages,judges should make a discretion by referring to subjective factors,severity,benefits obtained by the infringer,and the property status of the infringer.The multiple of punitive damages for damage to the ecological environment should not be a standard,but should treat personal injury,property damage,and ecological environment damage separately.Fourth,the attribution of punitive damages to ecological and environmental public interest litigation is classified as an ecological environment fund,which is uniformly managed by the procuratorate.Punitive damages in private interest litigation are vested in the infringed.