On The Environmental Rights In The Private Law And It's Relief

This paper attempts to explore the proper status of the Environmental Rights in the environmental law from the protection point of view. On the basis of the distinction among the environmental rights as human rights, constitutional rights and as the right of private law, this paper hopes to establish the concept of the Environmental Rights in the private law, as well as its institutional framework, then to seek the private legal remedies available. The full text is divided into six parts.The introduction mainly sets out the major basis and background of the topics, the purpose of the study, the theoretical and practical value, Research and Development about them both at home and abroad, as well as the main methods.The first chapter mainly analyzes the evolution of the Environmental Rights. By the study on the background of the Environmental Rights, the meaning of the Environmental Rights, and the right attitude to the Environmental Rights (including legislative and judicial practice) by means of the comparative law and the method of interpretation of the relevant laws at home and abroad, this chapter analyzes the necessity and feasibility to establish the concept of the Environmental Rights.The second chapter researches the legal attributes of the Environmental Rights. After the criticism and comparison of the traditional theories about the Environmental Rights, this chapter puts forward the author's own views. This chapter holds out that the legal attributes of the Environmental Rights could be defined on the basis of the distinction among the environmental rights as human rights, as constitutional rights and as the rights of private law. It also demonstrates at the same time the following views: the establishment of the environmental rights as human rights is just for a firm moral foundation and the legitimacy of the Constitution. The main function of the fundamental rights of the environmental rights aims at that the individual citizens could be against illegal violation from public authority and set limits for the exercise of state power. On the basis, the Environmental Rights in the private law could be established. However, in China, at present, the right to appeal and relief according to the Constitution is not sufficient for citizens to protect the Environmental Rights. Therefore, to probe the relief of the Environmental Rights, we must first establish the status of the Environmental Rights in the private law. It's meaningless and unrealistic to sum up the relief of the Environmental Rights, and also it does not conform to the basic logic of the law. It's insufficient to protect the Environmental Rights by means of the traditional civil rights such as the right to personal integrity, quasi-property rights and the tort law. Therefore, it is extremely necessary to establish the Environmental Rights in the private law. Through a legislative technics - the general Environmental Rights and the specific Environmental Rights, the so-called Environmental Rights such as border issues and uncertainty, could be solved. Therefore, it is feasible to establish the Environmental Rights in the private law.The third chapter discusses the construction of the Environmental Rights in the private law. To achieve this goal, this chapter focuses on the two dimensions: the first is about how to construct the system of the Environmental Rights in the private law. As there are many similarities between the Environmental Rights in the private law and the right of personality, it is reasonable to build the system of the Environmental Rights in the private law by adopting the same method as the system of the right of personality. Thus, to construct the system of the Environmental Rights in the private law, it is necessary to distinguish the general Environmental Rights and the specific Environmental Rights. The former is an "open concept of uncertainty" whose connotation and extension is uncertain. And the latter includes the most basic rights such as the right to clean air, the right to clean water, the right to environmental aesthetic, the right to outdoor recreation. The types of the specific environmental rights will reasonably increase with the development of the practice of justice in the future. The second is about the elements of the Environmental Rights in the private law (subject, object and content).The distinction between the Environmental Rights in the private law and in the public law is the prerequisite for the ascertaining the subject, object and content of the Environmental Rights in the private law. For the subject of the Environmental Rights in the private law, this paper proves through the comparison of doctrine that only natural persons, legal persons and other organizations are the appropriate subject of the Environmental Rights in the private law. The state, humans, animals and nature should all be excluded. The object of the Environmental Rights in the private law means the environmental factors. It is not reflected as the main factor by controlling the environment, but "excluding pollution and damage on the environmental elements by others ". The ascertaining of the content of the Environmental Rights in the private law should be based on the distinction between the general Environmental Rights and the specific Environmental Rights. The specific Environmental Rights are divided into the substantial rights and the procedural rights. From the point of view of legal relations, the former includes the right to clean air, the right to clean water, the right to environmental aesthetic, the right to outdoor recreation, etc.From the perspective of empowerment, the substantial rights is the right of defense, that is, it is highlighted only when the infringement happens, so the content of the substantial rights perform mainly powers including the cessation of negative and prohibition. Procedural rights mainly refers to the units and individuals have the right to the prosecution, the right to sue, the right to request mediation and the right to appeal. The latter is "open, uncertain and developing concept". Whether in the legislation, or in the theoretical study, the specific content of the general Environmental Rights is not and should not be pre-determined. If the legislation identified the specific content of the general Environmental Rights, it would be contrary to the original intention of the general Environmental Rights. Even in the theoretical study, the researchers should only provide guidance on the methodology for the general Environmental Rights to determine the content of the right, in order to be a reference to the judge in the case. Since the general Environmental Rights is an "open, uncertain and developing concept"and the terms of a general nature, it is part of a supplementary legal loophole operation to determine the content of it.The fourth chapter studies on the relief of the Environmental Rights in the private law. Through examining the concept of environmental violations, this paper analyzes the characteristics of the environmental violations. Then, by the research on legal concepts, the choice of principles of attribution ,the private relief on the environment ,the causal relationship, the subject of defense, civil litigation, as well as the commitment of the aging calculation, this article attempt to construct the relief system of the Environmental Rights in the private law which could be the major breakthroughs against the relief system of the traditional civil rightsThe last part is the conclusions of this paper.