Discussing On Environmental Personality Right

The environmental personality right is a new right, whose connotation has animportant role, especially in our country which has such a deep concept of lawtradition，the concept definition of personality right of environment is even moreextraordinary significance.While the concept analysis of personality right ofenvironment as a cross environment right and personality rights,is inseparable fromthe nature of environmental right and personality right. In fact,the environmental rightand the right of personality connotation still do not have a clear grasp so far.However,we can see clearly that the environmental right includes personality interestsby a careful analysis, which is the basis for this argument.The history of personalityright is not long,whose concept is still unclear,however,various theories argue laid atheoretical foundation for the definition of the environmental personality rightultimately.Analysis of attribute as a personality right of environment is from thepoint of view environmental right, there are human rights theory, property right theory,the social right theory,personality right theory and so on,the author thinks thatenvironmental personality right is a personality right, also is a kind of human rights.Environmental personality right is a new right, whose real possibility of theexistence must be first prove. In the context of ecological civilization, the ecologicalpersonality interest existence is particularly important,people enjoy the spirit benefitof the environment more urgently than ever,but both from a practical point of view,orfrom the human nature and humanism essence of philosophy is concerned,theenvironmental personality right has a profound theoretical basis of existence.Infact,from the international and domestic relevant legislation documents relating toenvironmental right,we can see the legislation age of environmental right has beenalready coming.In USA, Japan and other countries has occurred environmental rightcase in the judicial practice.That is to say no matter in theory,or from the system andthe judicial practice,the environmental personality right is reality,and theenvironmental personality right,fully reflects the times of human dignity and value inecological civilization era. From the perspective of environmental right,the controversy of legal nature hasnever stopped.But from the actual circumstance of all countries the environmentalright is protected by public law,which is mainly the constitution,and then is theadministrative law.Rarely use private law way to protect.From a practical effect,thepublic law has irreplaceable advantages,but also has the inevitable shortcomings,so inrecent years, many scholars agree that using the way of the combination of public lawand private law to protect.Moreover,from the private law point of view, in recentyears,with the outbreak of ecological crisis and the advent of ecological civilizationera,private law theory has already started the ecological tendency,which provides astrong theoretical support for the private law to protect the environmentalrights.Although the right of personality in the Constitution also has provisions,but wethink the rights specified in the constitution of all is not a public right,right ofpersonality in nature is a right of private law,so it should be mainly protected by privatelaw norms.As a type of personality right of personality right of environment is noexception.The author who based on the overall consideration of the legal system furtherexplore the design for the mode choice and concrete system of personality right ofenvironment protection in private law,so that the system can become an effectivemechanism to protect the ecological environment and realize human dignity. Humandignity is the base of people,whose meaning of human dignity is also developing andenriching,personality dignity of environment is indispensable part of personalitydignity.Ecological civilization society in China is proposed and built,which is thepremise and guarantee to realize the environmental personality.In recentyears,discussion about environmental right still can be heard without end,but it is nosubstantial progress,the author thinks that highlight and resolve of the crisis betweenhuman and environment needs new ideas and new system,the establishment of thesystem of personality right of environment is to meet such a demand.Although there isno relevant provisions of environmental right in the constitution of our country,butthis does not hinder us using the existing legal mechanism to first confirm the systemof personality right of environment in the field of private law.But there is noexperience for reference on the legislation of this right,only Ukraine once specifiesthis type of right in its civil code,therefore,we need to create boldly according to theiractual situation.In fact,in China both in theory and system,we also have the foundation of establishment of personality right of environment.From power,environmentalpersonality right includes enjoying power,disposition power,the function ofdemand.From the right type is concerned,the author thinks that it mainly includes theright to clean air,clean water,sunlight right,tranquility right,landscape right from theexisting practical need of society.In the process of the establishment of personalityright of environment,we also need to pay attention to commercialization problems ofenvironmental personality right,because the right of personality is not only a kind ofspiritual interests,it also contains the interests of property.In fact,this problem alreadyexists in the practice.The most direct way for protection of environmental personalityright is to stipulate environmental personality right in the personality right law andthrough the tort liability law to realize the relief of infringement of personality right ofenvironment.This is the most effective way,but it is not the only way.In fact,from theacademic perspective,scholars basically can recognize the existence of environmentalpersonality benefit,but it is controversial if there is the need to establish a separatetype of rights. There are some systems which can play a role to protect environmentright of personality in private law,so that there is no need for the establishment of anew right.This view has been criticized by the author in the above,setting up a systemof environmental personality right is not the only way to protect the personality rightof environment,but it is the most effective way.Right of claim of personality as a rightof request types,improves and enriches the request right system,and make up forshortcomings and limitations of the tort remedy claims for damages.Therefore,theauthor believes that we shall stipulate right of claim of personality in the uture civilcode,which is of great importance to the personality right of environment protection,itis an important way of relief for personality right of environment.The most effectiveway of the protection of environmental personality right is through the law of tortliability to realize,of course,the imputation principle of tort liability,causation andapproach of liability and exemption clauses of personality right of environment aredifferent from other personality right,it can play the role of protect environment rightof personality by the corresponding interpretation of existing legislation.