Researching On The Ecological Damage Compensation Legal System Under The Perspective Of Eco-justice

Justice is one of the important values of law. And it is also the criterion to estimate the goodness of laws. On the other hand, laws could bring the achievement of justice value and make ideal into reality. The theory of justice is developing as the increase of the requirement of human life. Environmental pollution and ecological damage have become a serious problem after the Industrial Revolution. And the unequal distribution of ecological interest and burthen is also worsened. Eco-justice, as a development of justice theory which could solve the environmental and ecological problem above, has been presented. Until now, eco-justice has not been applied in jurisprudential circle. Related legal institutions, especially the ecological compensation legal system, are absent. Therefore, companies hardly can afford the environmental cost and undertake the ecological damages responsibility. At last, the ecological damages responsibility is charged with the public, which apparently does not accord with eco-justice. To correct this unequal phenomenon, legislation of eco-justice, as well as the construction of ecological damages compensation legal system are quite necessary in China.Eco-justice theory originates from justice theory. The origin of justice problem is discussed through Marxism theory of justice. The conclusion that justice contains rights, obligations and responsibilities is presented. Moreover, justice could be summarized as two conceptions, distributive justice and corrective justice. Distributive justice is derived to equally distribute rights, obligations and responsibilities. And corrective justice is derived to correct the behavior of responsible Party and restore the injured rights and interests. Moreover, the standard to achieve distributive justice and corrective justice is analyzed with Marxism theory of justice. The conclusion that the root of eco-unjustice in China is the profit-driven nature of capital is presented. The nature of capital can not be eliminated. However, it can be limited. Limitation of capital is the critical method to improve eco-justice. And the legislation of eco-justice can effectively limite the capital. The conception of eco-justice is comprised of rights, obligations and responsibilities, which are related with each other. Many foreigh scholars believe that eco-justice is the same with environmental justice. In fact, environmental justice is the proper distribution of environmental interest and burden of people, which belongs to the conception of distribution justice. Eco-justice contains distribution ecological justice and correct ecological justice. Distribution ecological justice accords to the distribution principle of ecological rights, obligations and responsibilities. Correct ecological justice is used to find out the responsibility of environment breaker and restore the injured ecology. Above all, eco-justice eco-justice is comprised of rights, obligations and responsibilities, which could be ivided into distribution ecological justice and correct ecological justice. The first step of the legislation of eco-justice is to establish distribution ecological justice and correct ecological justice as the main idea of environmental legislation. Then it could be transformed to law through setting definite ecological rights, obligations and responsibilities.Ecological damages responsibility is the guarantee to realize ecological rights and obligations. Responsibility could clearly show the profit-driven nature of capital. First, legal responsibility, which is compellent, can deter people from breaking environment. So "environmental cost externalization" can be changed into "environmental cost internalization".Besides, legislation of ecological damages compensation follows the principle that environment breaker must afford the compensation. So the unfair fact that the public pay for the pollution caused by companies could be corrected. Moreover, legislation of ecological damages compensation can achieve the prevention and restoration of the injured nature. Prevention and restoration will bring bonus cost to the enterprise and effectively limite the capital, which can greatly improve the eco-justice. In this paper, the legislation of ecological damages compensation under correct ecological justice is analyzed. The comprisation of responsibility, scope and limit of compensation, and the way to claim for compensation are presented.As the presentation of the conception of correct justice, it has been mainly applied to construct the legal responsibility. The legislation of ecological damages compensation responsibility, which is the basic support to enable the person liable to burden the ecological damages compensation responsibility, is indispensable for the compensation. Correct justice is the theoretic fundamental of the legislation of ecological damages compensation responsibility. The objective of correct justice is to find out the responsibility of environment breaker and restore the injured nature. The constitutive requirements of ecological damage responsibility, which is mainly comprised of the fact of ecological damage, environmental hazards behavior, doctrine of liability fixation and the causal relationship should be analyzed. To remediation the injured ecological resources, the scope and the amount of ecological damages compensation should be analyzed. In this paper, these problems are solved with the relevant theories of Marxism.With Aristotle’s theory to divide distribution and correct justice, correct justice only act when distribution justice is broken. People’s right and obligation are provided by law. Apparently, distribution justice will be broken when people’s right is invaded. Under this situation, correct justice will restore the distribution justice through finding out the responsibility of environment breaker and restoring the injured nature. Because the amount of ecological damages compensation is rather big, the property of individuals can hardly restore the justice. So, correct justice can make further effort to achieve the eco-justice. According to the principle of tort liability law, the loss of victim should be totally consumed by the person liable. However, when the ecology loss is beyond the cosume ability of individuals, the traditional principle should be changed as:Loss=individual responsibility+social responsibility. The key point of this formulation is that the social responsibility is consumed by the possible environment breakers, not the whole public. Under the view of environmental public goods theory, these possible environment breakers are community of environment interest. So they must consume the responsibily as obtaining interest from environment. The level of responsibility is in proportion to the damage to the environment. Therefore, the unfair fact that public should consume the pollution of enterprises could be avoid. And the correct justice could be achieved though restoring the injured nature. Socialized indemnification has been applied in many fields. It has been pointed out by Marx and Engels that socialized indemnification could be used by both capitalism and socialism countries to prevent risk and develop society.Socialized indemnification has powerful function to remedy the damage to restore the injured nature, which is the basic idea of correct justice. So the theory of socialized indemnification contains both distribution and correct justice. There are two types of socialized indemnification, ecological damage liability insurance and ecological damage compensation fund. Ecological damage liability insurance, which is according to individual responsibility, could encourage people to prevent damage through supervising insuers, changing insurance fees, limiting the compesation amounts and so on. Besides, liability insurance could effectively remedy the damage. Ecological damage compensation fund is from all the possible environment breakers, who must afford part of money according to the degree of environment damage caused by themselves. When the damage can not be totally remedied by individual responsibility and liability insurance, the fund will play an important role. Compared with ecological damage liability insurance, ecological damage compensation fund is better for compensation and to achieve correct justice. To realize fair distribution of responsibility, this paper suggests that the environment risk should be divided into several types. Help-each-other ecological damage compensation must be established by professions having high risk to environment. Besides, possible environment breaker enterprises all over the country must establish comprehensive ecological damage compensation fund. When environment damage occurs, compensation should be done by the professional fund. Remainder compensation should be fulfilled by comprehensive ecological damage compensation fund.Correct and distribution jusctice are substantive justice, which must be achieved by procedural justice. Marx had pointed out that judicial procedure is related to the law, as the external form and blood of animals. So the aim of ecological damage claim mechanism should be the achievement of both procedural justice and substantive justice. The theoty of eco-justice is applied in this paper to the juridical practice of the claim practice of ecological damage. The institution of claim practice of ecological damage, containing public interest litigation and claim outside the litigation is analyzed. One problem is to answer who has right to the claim and obtain compensation. Marx and Engels pointed out in their theory of state that the government has the responsibility to represent the public and perform the function of public management, which is also supported by the law in China. If government does not perform the function, the claim right of ecological damage compensation should be given to individuals or environmental conservation organization organization. Under the basic principle of achieving eco-justice, civil environmental public interest litigation is presented as the main mode of ecological damage claim litigation. The principle of distributing burden of proof and affirming damage in the judicial action is discussed. Agreement for compensation of ecological damage out judicial action and the mechanism of claim for compensation of ecological damage by socialized indemnification is constructed.