An Analysis Of Environmental Liability Insurance Legal System

Currently China has entered into a crucial period of economic development as well as a period of high incidence of environmental accidents. Environmental issues, which emerged in phases among developed countries during a century industrialization process, have appeared in our country in recent 20 years with the characteristics of structure type, complex type and compression type. In recent years, with the acceleration of industrialization and urbanization, there have been a series of huge environmental pollution incidents which caused serious losses to economy, public health and ecological environment. How to balance every party’s interest and how to prevent and compensate these losses are unavoidable problems. Individual bearing environmental liability is the initial path to resolve the environmental crisis. However, since the environmental accidents have the characteristics of accumulation, complexion, catastrophe and high-technology, there are some theoretical difficulties and practical obstacles for individual to undertake liability as well as the traditional tort law is in a "crisis". Firstly, in a sense of that the reasons for environmental damage behaviors meet society’s needs, therefore, it is unfair for the doers (such as environmental tortfeasor) to assume all of the environmental costs; Secondly, the enormous compensation may make the enterprises bear a heavy burden of liability, which may greatly hindered the development of social economic; Thirdly, when the individuals can not afford the huge amount of compensation, it means that the mechanism of individual bearing liability fails, then the government has to be the final responsible person, and the country has a heavy financial burden, thus the pollution behavior would be inspired and then there may be a vicious cycle here appearing up; Finally, when the doers and governments cannot undertake the environmental liability, the mechanisms of personal and administrative accountability will both fail, and the victims have to suffer from survival crisis, while the social contradictions would become sharp and highlighted.The plight of individuals bearing environmental liability provides an operation space for the ways of socialization of environmental liability, and environmental liability insurance system is just a product under this circumstance. As a result of mutual adaptation between the traditional tort law system and insurance system, environmental liability insurance becomes a "link point" of environment, economy and society. Establishing environmental liabi insurance system can not only satisfy the sustainable development needs of environment, economy and sociality, but also help implement the scientific concept of development, as well as carry out the "people-oriented" objective and build a harmonious society. This study outlines the blueprint of China’s environmental liability insurance legal system from the angle of socialization of environmental liability, by using comparative analysis, historical analysis, empirical analysis and other research methods comprehensively and following the problem-clues and the temporal and spatial development threads of environmental liability Insurance, from the past to the present, policy to practice, theory to systems and foreign to domestic, to give some suggestions to the legislation.This study takes two major problems as the clue. First of all, the problems about absenting legal system of environmental liability insurance was brought up through the Songhua River Pollution Incident, and then the urgency, necessity and feasibility of establishing environmental liability insurance legal system are analyzed; Secondly, in order to illustrating the legitimacy and validity of the system, the author analyzed the theoretical base and institutional origins of environmental liability insurance from two aspects; Thirdly, this thesis raised problems by inspecting the current state of legislation and practice of environmental insurance and analyzed the reasons of such problems; Fourthly, this thesis made its own points for building environmental liability insurance legal system in China, facing the before-mentioned problems and drawing on foreign advanced experiences; Final]y, in order to give some advices for future legislation, the thesis proposed with a legislation draft for "Environmental Liability Insurance Act" in the end of the text.Excluding the introduction and the appendix, the text is divided into five chapters:ChapterⅠ—the pollution incident of Songhua River:thinking under the environmental liability insurance. This chapter is the logical beginning of the whole dissertation. This chapter took the Songhua River Pollution Incident as a logical start and analyzed the urgency and necessity to establish environmental liability insurance system after the reflection of the traditional tort law, then this chapter also discussed about the feasibility for establishing the environmental liability insurance legal system in China from the aspects of theory, policy, legal, economic and market conditions.ChapterⅡ—the socialization of liability:the arguments point of environmental liability insurance. This chapter is the theoretical basis for environmental liability insurance. Environmental law violations cause environment liability. At the beginning people wanted to solve the environmental problem through the way of individualization of liability, however, this method met many difficulties which provided an operation space for the socialization of environmental liability. Environmental liability insurance is the optimal choice for the ways of socialization of environmental liability. Therefore, this chapter firstly defined the concepts of environmental violations, environmental liability and environmental tort, analyzed the relationship between them; Secondly, made a study on the difficulties for individualization of environmental liability; Again, discussed the connotation, theoretical basis and implementation paths for socialization of environmental liability, and finally concluded that the environmental liability insurance is the optimal choice of environmental liability socialization.ChapterⅢ—the adaptation of multi-system:the system origins of environmental liability insurance. This chapter is the basis of environmental liability insurance system. As a new type of liability insurance system, environmental liability insurance is the result of interacting and combining of tort law, insurance law and environmental law. Therefore, this chapter firstly discoursed the transmutation in traditional tort law on environmental liability from three aspects:the amendment of the unlawful requirement, the change of the attribution principles and the adjustment of the relationship between the cause and result; Then analyzed the alternative of the insurance law from the angles of the extension of the risks theory and the adjustment of the principles of insurable, and formed the environmental liability insurance under the modern concept of environmental laws at last.ChapterⅣ—Research and confusion:the current state with respect to China’s environmental liability insurance. First, this chapter inspected our country’s legislation conditions from four aspects:legal norms, administrative regulations, local rules and regulations, departmental regulations and other normative documents of administration; second, it analyzed the running state about China’s environmental liability insurance, and divided environmental liability insurance pilot into sporadic pilot and focus pilot periods; Third, this chapter pointed out and analyzed the problems of China’s environmental liability insurance from the aspects of insurance requirements, insurance supplies, insurance mode and moral hazard etc, as well analyzed the causes of these problems for the next chapter.ChapterⅤ—Reference and consideration:the idea of environmental liability insurance legal system. According to China’s condition, this chapter proposed the general principle for environmental liability insurance, which is improving the existing system, such as Environment Tort Liability Act, Insurance Law and Environmental law as well as others with regard to environmental liability insurance to meet the current needs in environmental liability insurance practice. At the same time, as an Act closely related to environmental liability insurance, "Environmental Damage Compensation Act" should be proposed. Lastly, according to the shortcomings, learning from the advanced international experience, this chapter put up special points about some core issues for building legal system of environmental liability insurance, such as selection of insurance mode, the coverage of insurance, and the prevention of moral hazard etc.The appendix is a suggestion copy of China’s "Environmental Liability Insurance Law". The proposed draft includes 47 clauses, which is composed of five parts:general principles, environmental liability insurance contract, environmental liability risk management, legal liability and annex.