| The issue of nuclear safety consists of two parts:one is the prevention of nuclearident;the other is the relief of nuclear damage.The former solves the problem of how to accb and reduce the occurrence of nuclear accident,and the latter solves the problem of how curremedy the nuclear damage.If these two problems can't be solved simultaneously,the tovities of nuclear energy utilization in any country can't be carried out boldly and smoothly.acticlear energy is called low-carbon energy.The peaceful development and utilization of Nulear energy has played an important role in solving energy crisis and environmental nuctection,especially in the field of nuclear power generation.Although the practice of proelopment and utilization of nuclear energy in China is in full swing,laws related to devlear energy is obviously insufficient.Some scholars joke that the development of China's nuclear power has been“streaking”for thirty years.As for the legislation for compensation lniuacbility of nuclear damage,the relevant provisions are scattered in General Principles of Civil Law,Radioactive Pollution Control,Act Tort Liability Act and Nuclear Safety Act,but without exception,they are presented in principle and lack of operability.Although two"approvals"from State Council are normative documents specially enacted for compensation liability of nuclear damage,which are only drafted as an emergency plan to introduce foreign nuclear power technology.Without regard to the approvals'legal status for the time being,in terms of their normative integrity and operability,it's difficult to apply,the same as above-mentioned legislation.Thus for the peaceful development and utilization of nuclear,it's urgent to solve the problem about legislation of compensation liability of nuclear damage.The referred nuclear damage in article is caused by nuclear infringement,excluding the damage caused by breach of contract.The correct understanding of nuclear damage is based on the knowledge of related concepts,including understanding basic concepts such as nuclear facility,nuclear facility operator,nuclear event,nuclear accident,etc.So,nuclear damage should refer to three kinds,including personal injury,property damage and environmental damage,which are result from nuclear accidents caused by nuclear facilities,nuclear materials or radioactive wastes of nuclear operators.Under background of risky society,features of nuclear damage present probability,latency,persistency,huge losses,which are bound to increase difficulty to determine the scope of relievable nuclear damage in practice.The scope of relievable nuclear damage includes the scope of eligible victims and the scope of nuclear damage in a narrow sense.The judgment way of two scopes can be determined based on the elements of tort liability,but the latter also needs considering some factors:the possibility of foreseeable damage,tolerance,certainty,whether there is the involvement of a third party or not.After studying related international convention about nuclear damage compensation and nation's domestic legislations,we find the subjects in compensation liability of nuclear damage are not only the operators of nuclear facility,but also other subjects,such as other industry subjects or countries in nuclear industry.Therefore,we can't define that the compensation liability of nuclear damage is the individual tort liability from operators of nuclear facility.By comparing with tort liability,we find that compensation liability of nuclear damage presents the following features:not a single responsibility,but a comprehensive responsibility.emphasizing responsibility sharing,lightening individual liability,focusing on balance of interests,and the operation condition of system having particularity.The fundamental feature lies in the emphasis on responsibility sharing,namely,the allocation of nuclear responsibility among different subjects.The reason is that the nuclear risk is a public risk and the public should bear the public risk,which can't be regarded as a private risk taken by the operator of nuclear facility.Therefore,the compensation liability of nuclear damage should be divided into the liability of the operator liability,the social liability and state reimbursement liability of nuclear damage.This Division not only has the basis of theory of distributive justice,but also meets the efficient requirement of legal economics.The liability of the operator of the nuclear damage compensation is a type of responsibility divided according to the principle of distributive justice.This liability is taken by the operator of nuclear facility who is the direct undertaker of nuclear risk.To ascertain this part of responsibility,the imputation principle of tort law,the liability constitution system and other systems provide a ready way.According to doctrine of liability fixation,the principle of liability without fault is adopted for the individual compensation liability of nuclear damage;in terms of liability constitution,three-element theory are used,including existing nuclear tortious act,existing nuclear damage fact,existing causality between nuclear tortious act and nuclear damage fact.The basic principle of the liability of nuclear damage differs from that of general infringement damage compensation's,including principle of sole liability,principle of liability limit,principle of compulsory financial assurance,jurisdiction principle of single competent court.The best way to realize individual compensation liability of nuclear damage is adopting compulsory third-party liability insurance of nuclear,which is purchased by nuclear facility operator equivalent to his limit.In case of nuclear damage compensation,the nuclear insurance company will bear the compensation liability,thus reducing the concern of nuclear facility operator.But Nuclear Community Insurance Coverage in China has listed major natural disasters as excluded liability which makes insurance defective to realize operator's liability of nuclear damage.So from learning the experience of catastrophe insurance at home and abroad,the government-funded liability insurance system of nuclear catastrophe can be built in the field of individual compensation liability of nuclear damage so as to make up for the possible defect of insurance.Moreover,considering that a large number of people are involved in nuclear damage compensation and the cases are complicated,in order to improve fairness,efficiency and order for nuclear damage compensation,it's necessary to establish a community system of victims in non-litigation relief.This community will safeguard the rights and interests of victims to the outside world.The social liability of nuclear damage refers to that when accidents happened in nuclear facilities causing damage,other social subjects should bear the responsibility of compensation except risk undertaker?nuclear facility operator?.The basic theory of social compensation liability of nuclear damage is"Who benefits,who shares".The basic principle includes principle of balanced sharing and principle of liability limit.According to theory of benefit sharing,the scope of other social subjects who bear the liability including but not limited to:all nuclear facility operators from nuclear energy industry,consumers of nuclear related products,shareholders of nuclear facility operators,nuclear suppliers,governments and nations who collect taxes and fees?The nation represents the public.?,etc.Because these social subjects are too dispersed and large.It is neither efficient nor practical if it is compensated in the form of individual external liability.So the best way for realizing social compensation liability of nuclear damage is to establish a governmental fund for nuclear damage compensation which is financially supported by beneficiaries,such as all nuclear facility operators from nuclear energy industry,consumers of nuclear related products,shareholders of nuclear facility operators,nuclear suppliers,governments and nations,etc.From the perspective of foreign legislation relating to compensation for nuclear damage,in legal terms,it is not the use of"state reimbursement"in any country,but also the use of"compensation and assistance".However,from the perspective of legislation,"compensation"is essentially the reimbursement of the state,and"assistance"is a far away from the"state reimbursement".According to the legislation of China,state compensation refers to the act of liability for compensation by the state when the act of the state organ and its staff causes others damage.However,in the area of compensation for nuclear damage,the nuclear damage is caused by the behavior of the operator of the nuclear facilities.So the state liability for nuclear damage compensation cannot be recognized as the liability of state compensation.Therefore,the China's 2007"approval"define it as the state reimbursement liability.The theoretical basis of the state's reimbursement liability for nuclear damage compensation is the guarantee of the state,which is the guarantee of the state's behavior and the guarantee of the victim's relief.According to the explorations about implementing forms of the operator liability,the socialliability and state reimbursement liability of nuclear damage,China has domestically constructed three-level financial security for compensation liability of nuclear damage:The first level is insurance;the second level is fund;the third level is state reimbursement.Various types of responsibilities and their implementing forms are all isolated,so we still need an overall grasp of the operation mechanism of compensation liability system of nuclear damage.The operation mode of compensation liability system of nuclear damage includes adversary system mode and executive-led mode,but it's advisable for China to choose the latter based on the criterion of fairness,efficiency and order.In addition,seeing from the practices of nuclear damage compensation,nuclear damage compensation has an emergency need,the same as nuclear accident emergency.Therefore,emergent requirements must be reflected in the operation of compensation liability system of nuclear damage.In a word,the operation mechanism should be an executive-led emergency mechanism of nuclear damage compensation.Legislation is the best result of system research achievement.In China,the decentralized legislation of compensation liability system of nuclear damage is hard to find applicable and decentralized objects,therefore,turning to single legislation-that is to enact Nuclear Damage Compensation Law.This is not only in line with the mainstream of single legislation in international compensation liability system of nuclear damage,but also responds to China's attitude towards advocating single legislation in compensation liability system of nuclear damage.Systems should be solidified in the legislative process of Nuclear Damage Compensation Law,including ternary system of compensation liability of nuclear damage,principle of sole liability in operator's liability of nuclear damage compensation,principle of liability limit,principle of compulsory financial assurance,jurisdiction principle of single competent court,community system of victims,fund system in social liability of nuclear damage compensation,state reimbursement system of nuclear damage compensation,administrative emergency system of nuclear damage compensation,ect. |
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