A Study Of Legal Basic Issues On Environmental Pollution Liability Insuirance

Environmental protection has been transforming step by step from solely relying on administrative measures into comprehensively exercising legal, economic or necessarily administrative means. Environmental Pollution Liability Insurance also called Green Insurance, as well as Green Credit and Green Securities, are three key environmental economic policies. An academic consensus hasn't yet emerged on the concept of environmental pollution liability insurance. Moreover, there are different connotations of environmental pollution liability insurance policies in different countries. In this thesis, the object of environmental pollution liability insurance is personal injury, property damage or environmental impairment caused by environmental pollution.The pilot work of environmental pollution liability insurance in 9 provinces or municipalities, which has been carried out by Ministry of Environmental Protection and China Insurance Regulatory Commission since 2008, gradually exposed many problems, such as environmental risks coverage, compensate scope, voluntary insurance pattern, criteria and technology of damage assessment, corresponding governmental policies, and so on.After a theoretical and practical studying of environmental pollution liability insurance in main countries of the world, and dissecting key problems in our pilot work of environmental pollution liability insurance, it is found that four legal basic issues on environmental pollution liability insurance are of crucial importance, including insurability of environmental risk, environmental risks coverage, compensate scope of specified damage and insurance pattern. And inadequate theory of the above four issues and defective system has restricted the further development of environmental pollution liability insurance.Therefore, this thesis focuses on four legal basic issues on environmental pollution liability insurance, including insurability of environmental risk, factors of environmental risks coverage, coverage of specified damage resulting from environmental pollution and pattern of environmental pollution liability insurance, with a hope to summarizes experiences and lessons after a theoretical and practical studying of these issues in main countries by comparison, also to provide the reference for theoretical construction, systematic perfection and booming development of pilot works on environmental pollution liability insurance in China.This thesis consists of the introduction, the main body of six chapters and the conclusions.In Chapter One, firstly, it fully reveals the connotation of environmental pollution liability insurance from the angle of essential characteristic, functions and types, and especially points out its characteristics of public welfare and compulsion, and its functions of risk diversification, damages compensation, and risk supervision. Secondly, it takes advantages of social solidarity philosophy and tort law theory to roundly illustrates three theories of environmental pollution liability insurance, including that environmental tort leads to legitimate extensive social interest infringement, that the ideological basis of tort law has shifting from corrective justice into distributive justice, from the concern about loss between the offender and the injured into the concern about rational distribution of right and obligation between individual and collective, and that functional changes of tort law highlights the protection to the victims with the tendency of the integration of public law and private law and civil law's socialization. Thirdly, it makes a summarization of environmental pollution liability insurance in western countries, and finds that in theoretical direction and practical development of environmental pollution liability insurance, the four legal basic issues are crucial factors, which are insurability of environmental risk, factors of environmental risks coverage, coverage of specified damage resulting from environmental pollution and pattern of environmental pollution liability insurance.In Chapter Two, it addresses the questions on insurability of environmental risk. It asserts that environmental risk is not in accordance with traditional theory on insurability of risk because of its homogeny, measurability, possibility or probability, future occurrence, complexity of loss reorganization, severity of consequence. But it breaks through the theoretical limitation on risk insurability by two approaches, and institutionally improves the insurability of environmental risk. Ordinary pathway involves reinsurance, co-insurance and balance means during risk period. Special pathway relates to risk distinction in different regions, industries and enterprises, information sharing, risk premiums charging, insurers'participation in environmental supervision and management, introduction of environmental management standards, rational definition of insurance period and preventive measure of moral hazard which includes floating premium rate, franchise and liability limitation system.In Chapter Three, based on the survey of judicial practice in western counties, it presents that some factors, such as pollution (contamination) and environmental impairment, specified substances, installations or activities in environmental pollution, defective products, state of mind of insured and nature of damaging occurrence (sudden or gradual), can directly determine the coverage of environmental risk. As far as the current pilot work of environmental pollution liability insurance in China is concerned, the division in industries and regions can solve some problems in the coverage of environmental risk. But in terms of coverage or exclusion of sudden and accidental pollution or gradual pollution, this kind of factitious division can not comply with science reason, and imply a crisis of litigation flood in the future, which has long been established from the history of environmental pollution liability insurance splitting from comprehensive general liability insurance in western countries, and also from heavy uncertainty of litigation environmental pollution liability insurance.In Chapter Four, it researches such specified types of damage coverage as pure economic loss, ecological damage, genetic damage and cleanup costs. It suggests that economic loss of use of tangible property should be covered provided such loss of use is caused by loss of or damage to other tangible property which occurs during the period of insurance. It reasonably classifies calculation of ecological damages according to restoration means, defines the scope of ecological damages, and provides accurate reference for insurers to assess ecological damages risk and define the coverage. As it is very hard to determine genetic damage resulting from environmental pollution, there has been dispute about if it can be covered or not. As to cleanup costs, generally speaking own-site cleanup cost are exclusive, but based on the principle of avoiding and reducing losses, insurer can burden the insured's own-site cleanup cost within necessary and reasonable measures as well as implement governmental orders.In Chapter Five, it discusses trigger theory, liability standards, ecological compensation, adverse selection, moral hazard and capital strength, which can affect mode selection of environmental pollution liability insurance.In Chapter Six, it points out the defects of our pilot work in 9 provinces or municipalities and proposes the measures. It advises that environmental pollution liability insurance in China should cover gradual pollution risk, extend the coverage of pure economic loss and ecological damage and adopt compulsory mode of environmental pollution liability insurance, in order to bring insurance mechanism into full play in handling environmental pollution accidents, relieving the victim in time, decentralizing corporate operation risk, improving environment risk management and reducing the governmental burden. In the meanwhile of improving legislation of compulsory insurance of environmental pollution liability, our government should set up the catalogue of the insured corporation, build neutral assessment agency, and make relative supporting policies such as premium subsidy, tax preference, relief fund, license approval, credit qualification and so on.