Legal System Of Environmental Pollution Liability Insurance In Western National Areas

With the continuous improvement of industrialization and the ability of human’s remolding nature, environmental pollution accidents occur frequently in China recently, which even shows a growth. Influenced by the general trend of a new round of Western Development and the industry shift from the eastern part to the midwest, how to balance the relationship between economic developments and ecological environmental protection without repeating the eastern part’s "pollution first, treatment later" road has become the key for the western minority areas’economic development. Due to the particularity of the environmental tort, the environmental civil liability for compensation based on traditional individual responsibility caused by environmental pollution accidents which result in the physical and property damage to a third party, and caused by ecological damages to the environment settled untimely and inadequately. As a social remedy of environmental civil liability for compensation, the environmental pollution liability insurance called "green insurance" replenishes the inadequacy of the traditional civil liability regime to some extent, and plays a role of remedying environmental pollution and ecological damages.Changing from Guidance on Environmental Pollution Liability Insurance jointly issued by State Environmental Protection Administration and the China Insurance Regulatory Commission in2007to Guidance on Pilots of Environmental Pollution Compulsory Liability Insurance in2013, pilots of environmental pollution liability insurance have experienced the process of voluntary turning into mandatory, which provides the policy basis for other pilots of environmental pollution liability insurance in China. In order to play the force of environmental pollution liability compulsory insurance, taking it into local laws and regulations is particularly significant, under the condition of lacking the upper law of country. Regarding the western minority areas as the object of study, the thesis focus on the practical problems of carrying out environmental pollution liability insurance. The real dilemma of ways that government encourage potential infringers to purchase liability insurance for uncertain victims or a third party, or local governments enact normative documents to force the party of a certain range to purchase liability insurance, is increasingly prominent. In this thesis, the implementation of the environmental pollution liability insurance mode that "based on mandatory with voluntary as supplement" in ethnic areas of western is put forward. The compulsory insurance is enacted by the provinces, or autonomous regions’ establishing local laws or special regulations of environmental pollution liability insurance according to their own characteristics, which provides a legal basis for the compulsory implementation of environmental pollution liability insurance. Then, the thesis discusses the range and the definition of the applicant and the insurer, as well as the setting of the insurance liability and the exclusive liability. And the effective compulsory power of the above is ensured by setting legal responsibility for environmental pollution liability compulsory insurance.The thesis is composed of three parts:the introduction, five chapters and the conclusion. The introduction is mainly about the problem finding and its significance, related research trends, the main idea of the thesis, the principal research methods, and the creativity and the insufficiency of the research. And the five chapters of main body are as follows:"The general status quo of the environmental pollution liability insurance in western minority areas" serves as the title of the chapter one. In this chapter, firstly, by analyzing the relief, the present status and the limitation of environmental pollution infringement or dispute in western ethnic areas, the environmental pollution liability insurance which is one method of socialized remedies solving the problem of damage compensation for environmental infringements, is put forward. Then, the insured object of environmental pollution liability insurance is proved to be the infringing civil liability for environmental pollution by defining the concept and characteristics of environmental pollution insurance. Lastly, according to the author’s research in the western minority areas, the thesis summarizes and analyzes the practical difficulties faced by would-be pilots and pilots of environmental pollution liability insurance, and points out that the voluntary insurance mode of environmental pollution liability insurance has been an obstacle of its development and completion."The insurance mode that ’based on mandatory with voluntary as supplement’ in western minority areas" is the title of chapter two. In this chapter, by making a comparative analysis of environmental pollution liability insurance in different modern countries and by combining the characteristics and needs of western minority areas’development, the insurance mode that" based on mandatory with voluntary as supplement" in western China ethnic areas is put forward. What’s more, the definition, characteristics of compulsory liability insurance, and the difference between compulsory insurance and voluntary insurance are discussed to a greater extent. The mode asks for legislation as the key guarantee, so the author analyzes the reason why the western ethnic regions should take the mode that based on mandatory, and suggests that western ethnic regions should formulate local laws or special regulations of environmental pollution liability compulsory insurance according to their own needs and characteristics, which provides a legal basis for the compulsory implementation of environmental pollution liability insurance in the western minority areas.The chapter three defines "the range of compulsory insurance party of environmental pollution liability", which is also the title of this part. The "applicant" and "the insured" are defined in this chapter. Generally speaking, the range of the "applicant" can extend to all parties that have potential risks of environmental pollution, so the range of the applicant should be clear because of its mandatory. The thesis analyzes from multiple angles such as the national policy guidance, national key-point regulation of dangerous chemicals and hazardous wastes, business characteristics of China’s western minority areas, the key-point pollution industry that should be mainly controlled, and the range of compulsory insurance in different countries. Based on the above, the range of the applicant is as below:heavy metal-related industries involving heavy metal pollutants and emissions; business involving production, management, storage, use, collection, transportation and disposal of hazardous chemicals and hazardous waste; industrial enterprises within a certain range of environmentally sensitive areas. In terms of another party of environmental pollution liability insurance, the insurer, the author comes up with the idea that western minority areas in China should sustain the existing commercial insurance operation mode in view of other countries’ environmental pollution liability insurance agencies. However, in the light of the huge operation risk faced by the commercial insurance company when accepts environmental pollution liability insurance, the thesis puts forward that the government should provide policy support to ensure the smooth implementation of environmental pollution liability insurance in western ethnic areas by financial subsidies, tax incentives and other policies. In addition to the government’s support, establishing Sino-foreign joint liability insurance company, or obtaining foreign technical support by allied reinsurance of foreign and Chinese insurance companies can supply the environmental pollution liability insurance in western ethnic areas with advanced technical support in a effective way."The analysis of insurance liability and exclusive liability in environmental pollution liability compulsory insurance in western ethnic regions" serves as the title of chapter four which discusses the insurance liability and exclusive liability in compulsory insurance clause. With regard to insurance liability, the thesis puts forward that environmental pollution liability compulsory insurance in western ethnic regions should only cover "sudden" environmental pollution accidents. Among the types of the damage under writing, the scope of the specific civil party such as " victim " should be defined, and the coverage of environmental pollution liability compulsory insurance should include victims’personal injury, property damages and moral damages caused by the infringer. In the discussion about the problem whether the scope of compulsory insurance should include the ecological damage, the author differs the ecological damage caused by both ecological damage and environmental pollution from the pure ecological damage, and points out that the scope of environmental pollution liability compulsory insurance should only include ecological environmental damage caused by sudden environmental pollution infringements. Moreover, there are two types that is "damages occurring during the period" and "claims during the period". The author analyzes and discusses from different angle of the insurer and the insured, and advances the type of "claims during the period" is more suitable for environmental pollution liability insurance policy system of China’s western region. When talking about the exclusive liability, the author expounds some significant exclusive liability clauses such as the intent of the applicant or the insured, the illegal behavior of the applicant or the insured, the property owned or charged by the applicant or the insured, and products manufactured or marketed by the insured, all of which are listed in environmental pollution liability compulsory insurance exclusive clauses.The title of chapter five is "legislation liability of environmental pollution compulsory insurance in western ethnic regions", which talks about the legal liability that should be shouldered by underwriters and applicants in legislation of compulsory insurance. In terms of underwriters, the regulation should cover the party illegally engaging in environmental pollution liability compulsory insurance, the insurance company engaging in environmental pollution liability compulsory insurance without permission, legal liability of environmental pollution liability compulsory insurance company. While in terms of applicants, the legal liability should cover the applicant who has never applied for environmental pollution liability compulsory insurance, and the insurance policy or insurance signal that is forged or changed. The setting of legal liability will provide legal guarantee for compulsory legislation of environmental pollution liability compulsory insurance in China’s western minority areas effectively.