Research On The Jurisprudence Of Ecological Damage Prevention

As modern society is bearing more and more risks, ecological damages become major disadvantages that affect the development of society and intensify the level of risks. These kinds of damages may not reach the physical, property and mental interests of particular persons, but they aggress upon the most important common interest of mankind—that is, ecological interest; therefore they form major issues between Man and nature.Environmental law is the most vibrant branch of law in driving the development of juristic theories. Going against the traditional theory that takes environment as a medium, environmental law has broadened the extension of"damage"and brought"ecological damage"into the legal category; as a result, damage in law refers not only to damage to traditional legal interest, but also includes ecological damage shared by mankind. Ecological damage has developed as a problem that urgently requires to be thoroughly researched within the horizon of ecological civilization. To construct ecological civilization is to remove the threat and demolishment caused by the behaviors of infringment on environment, to maintain the original status of the ecosystem and to prevent and avoid the occurrence of ecological damage as much as we can.What is the central contemplation on the question of confrontation of environmental law with ecological damage? This is the question thoroughly researched in the dissertation. The clarification of theoretical contemplation will definitely facilitate the establishment of legal institutions against ecological damage.Ecological damage means a legal fact in which people have not abided by ecological rules, and the environmental capability limit has been exceeded through exploiting environmental resources, thus resulting in severely disadvantageous changes on the composition,structure and function of ecosystem. Ecological damage is a selected concept with respect to the damage on ecosystem caused by Man's behaviors from the viewpoint of eco-protection. The concept revealed the essence and conforms to the international trend of the development of environmental law, thus facilitating communication with scholars abroad. Besides, it can launch direct discussions with existing legal theories and avoid confusion among terms. The concept is very theoretically forward-looking."Environmental damage"can easily lead to inconveniences on expression and obfuscation on understanding."Environmental infringement"has excess connotation. In contrast with"Damage on natural resource",the concept of ecological damage has more precise implication. Adopting"Damage on natural resource"can neither fully actualize damages nor maintain environmental values to the greatest extent.The essence of ecological damage is that the ecological interests are severely infringed upon. Ecological interests, which means the objective interests provided by ecosystem to everyone (including people in the contemporary era and their descendents) originate from Man's need for security.Ecological interests, which differ from individual interests, national interests, and the protection of them, are representative problems on environmental law. This is a"hard nut to crack"for traditional laws, that saving the destroyed tellural environments and effectively protecting ecological interests which do not directly belong to any specific natural person or legal person. It is a particular problem that requires particular theories of environmental law.In order to prevent the infraction of ecological interest, environmental law not only makes ecological interest a legal interest, but also takes active and sufficient protection in advance according to the special needs of ecological interest. Thus, environmental law prevents the infraction of the fundamental interest which is vital to human existence and development.Ecological damages are quite different from traditional damages, whether in the object of infringement or as the result of infringement. As to the institutions of environmental infringement,they emerged from torts law; they provide protection and remedies for ecological interests which do not directly belong to any specific natural person or legal person, but to the public. With regard to the institution of compensatory liability on ecological damage, it starts from liability and remedies, and its fundamental function is to remedy the ecological damage ex post facto. Due to the limitation on its scope of influence and factual functions, the institution of compensatory liability on ecological damage will not be competent for the core contemplation toward the problem of ecological damage on environmental law. If the preventive legislation against ecological damage were not sufficient, it should be difficult to remedy ecological interests by means of the institution of compensatory liability on ecological damage.Ecological damage prevention is the mission of Environmental law. So Environmental law should abide by ecological rules, adopt the idea of the prevention function of law, establish precautionary principles and prevention system, and prevent and avoid ecological damage through the strengthening of legal prevention as to the legal protection of ecological interests.It is an inevitable requirement for reinforcing the legislation for protecting the ecological interests, to establish active ideas on the legal protection of ecological interests, to confirm ecological interests and make emphasizing the protection of ecological interests as a crucial base point with respect to the functional implementation of environmental law, and to adjust and balance a collection of rights such as ecological and economical interests, intra-generation and inter-generation interests, thus promoting the interests and effectuating the interaction and coexistence of ecological and economical interests.