Research On The Legal System Of Compulsory Liability Insurance For Environmental Pollution

Environmental pollution disputes have become a hot topic of social concern in recent years.Insurance has the function of economic compensation and loss sharing.It is a common international practice to introduce insurance system into environmental pollution damage compensation.Environmental pollution liability insurance has a history of more than fifty years.In many countries,a relatively sound and perfect insurance system has been established.China's environmental pollution liability insurance started relatively late.It has only been more than ten years since the first environmental pollution liability insurance was settled in December 2008.The pilot project of compulsory environmental pollution liability insurance has not been more than five years since its establishment.The initial purpose of introducing compulsory liability insurance system for environmental pollution into China is to alleviate the social contradictions caused by environmental pollution.The insurer,as a neutral third party,provides a dispute resolution mechanism for the settlement of environmental disputes,guarantees the normal and orderly operation of enterprises while efficiently and conveniently provides economic compensation for victims.However,from the implementation to the present,it has not been able to achieve the desired results.Based on the development direction of China's environmental pollution liability insurance system-compulsory liability insurance system for environmental pollution,this paper makes a thorough study of the system by means of cross-analysis,empirical research,comparative study and literature review.On the basis of explaining the principles of the system,elaborates on the existing problems of China's existing system through the analysis of pilot experience and relevant foreign practices.At the same time,bring suggestions to improve the system.This paper is composed of two parts: introduction and body.The body is divided into seven chapters.The general contents of each chapter are as follows:Chapter ?.Discusses the origin of compulsory liability insurance system for environmental pollution-theoretical basis-necessity analysis-feasibility analysis.Starting from the special nature of environmental tort,the limitations of traditional remedies for environmental tort are explained.After clarifying the connotation and theoretical basis of compulsory liability insurance for environmental pollution,the necessity of establishing such Insurance system in China is comprehensively analyzed from six aspects.Finally,the feasibility of implementing compulsory liability insurance system for environmental pollution is demonstrated and analyzed from the perspective of law and economics.From the aspect that the victim's damage can't be fully filled by the traditional dual liability mechanism after the environmental pollution accident happened,this paper discussed and analyzed its feasibility basis from the aspects of economics and law.Compared with the single-subject study of law,it pays more attention to the discussion of the economic efficiency of the system,which is in line with the inherent economic policy of the compulsory liability insurance system for environmental pollution.In fact,unlike the common commercial insurance,which pursues the maximization of benefits,it embodies more the maintenance of public welfare.To analyze the feasibility basis of compulsory environmental pollution insurance system in China is indispensable for the construction of this system in China.Chapter ?.Follows the research idea of problems and countermeasures,categorize the existing laws and regulations on compulsory liability insurance for environmental pollution in China,and analyses the current system status in China from both national and local levels.It concludes that the problems are manifested in the lack of national legislation and specific legislation.The scope of regulation mostly concentrates on the industries of hazardous materials shipping and marine oil pollution.Its legal rank is low,the relevant clauses are scattered,showing the characteristics of more declarative clauses,less specific content,fewer clauses,weak pertinence,lack of supporting measures and so on.A complete compulsory liability insurance system for environmental pollution has not been established.The deficiencies of local legislation lie in its small overall scale,insufficient support of upper law,concentrated form on government notices and documents,principled rules in basic content,lack of operability and timely establishment of supporting policies.The present situation and problems of the pilot practice are examined and reflected in several typical areas.The main problems are as follows: lack of high-level legal support and weak institutional foundation;insurance clauses need further optimization;the degree of cooperation between enterprise risk level and differential rate model in insurance clauses needs to be improved,and there is no rate.Suitable for the scale of operation or risk level of docking enterprises;single type of insurance products,high premium amount,narrow insurance coverage and wide exemption clauses,resulting in difficulties in compensation;low violation fine of environmental pollution;insufficient policy support for pilot projects;relying mostly on publicity or encouragement means for pilot projects in various regions;and lack of positive incentives such as tax incentives and premiums.Subsidies or risk guarantee funds,etc.Chapter ?.Discussing the legislative choice of compulsory liability insurance system for environmental pollution.Firstly,by reviewing the development of compulsory liability insurance legal system for environmental pollution in foreign countries,summarizes the development commonness and experience of various countries.Secondly,it clarifies the basic concept of legislation,that is,insisting on substantive justice,respecting market mechanism,legislative intervention in the market,regulating enterprises' pollution behavior,and maintaining social order.It is determined that the victims of environmental pollution should be compensated according to law,realizing the maintenance of social order,conforming to national conditions and promoting the common development of environmental and economic development.Finally,determine the legislative model in China.After analyzing the main points of view of the academic circles in China,the legislative model of combining basic law with single legislation is put forward,and the legislative process is divided into three stages to complete.In order to improve the system's content,because its special nature determines that the field of concern of the system is different from that of liability insurance in general sense,besides some basic norms,this paper selects several major issues that are most controversial in practice,including the insurance coverage and the determination of exclusive liability,knowledge obligation of the insurer and the insured and legal supervision.Therefore,from Chapter IV to Chapter VII,China's current compulsory liability insurance system for environmental pollution problems are further discussed,corresponding solutions and improvement suggestions are provided.Chapter ?.Discussing the disputes and special risk liability in the scope of insurance liability combines the particularity of environmental pollution risk,follows the basic principles and concepts of environmental pollution compulsory liability insurance legislation,and realistic basis of our country with the help of legal and economic theory.In the selection of insurance standards,first discuss whether the liability for progressive pollution accidents belongs to the scope of insurance standards.The characteristics of progressive pollution are summarized which are the complexity of accident causes,the long-term nature of time and the high correlation of risk individuals.From the perspective of market application,the progressive pollution risk is proved to be insurable.According to the direction of social utility,the legitimacy of the public value of progressive pollution as an insurance symbol category is analyzed,and the insurability of progressive pollution risk has strong binding force with the participation of public power.Secondly,under the circumstance of incorporating the risk of ecological environment damage into the scope of insurance,how can the legal system and insurance technology of our country satisfy the precondition of giving full play to the function of insurance? As a kind of traditional liability insurance,combined with the mode of recovering responsibility for ecological environment damage,the scope of insurance liability should not involve the public liability in ecological environment damage,but should clarify the civil liability in the system.At the same time,the relevant system supporting norms and standards also need to be improved.Thirdly,it is proposed that the compensation for mental damage should be included in the compulsory liability insurance for environmental pollution,which follows the principle of compensation for loss and conforms to the legislative trend.Moreover,the compensation for mental damage of compulsory liability insurance for environmental pollution should be limited to the scope of sudden environmental pollution infringement,and should not include the scope of progressive environmental pollution and ecological damage.Finally,the cost of emergency disposal and pollution clearance should be included in the coverage,which highlights the important characteristics of public welfare of compulsory liability insurance for environmental pollution;litigation fees should also belong to the coverage and litigation fees should be examined by the court on the basis of reasonable benchmarks after balancing the interests of insurer and insured.Chaper ?.Analysing the exclusive liability of compulsory liability insurance for environmental pollution and clarify its nature and purpose: to achieve the balance of interests between the insurer and insured,to protect the interests of victims and to avoid damaging the insurer's initiative to insure.However,in current laws,there are logical confusion and content omission in the specific rules of exclusion responsibility in regulations and policy documents,which cannot achieve the original intention of exclusion responsibility and could easily lead to moral hazard.The direct damage caused by intentional act and negligence in stopping loss should be included in the exclusive liability,while the direct damage caused by negligent crime and the ecological damage caused by intentional crime should also be clarified.Chaper ?.Discussing the obligation of disclosure in compulsory liability insurance for environmental pollution.Firstly,combine with the theory of information economics,this paper analyses the origin of the obligation of disclosure of compulsory liability insurance for environmental pollution-the causes and current situation of information asymmetry,the definition of the obligation of informing on important matters in the legal systems of various countries,and shows the differences in understanding in the legal systems of different countries.Combining with the legislation and judicial practice of our country,the rules of the obligation of informing on compulsory liability insurance for environmental liability are perfected.Secondly,the specific form of fulfillment of the obligation to inform has not been stipulated in the insurance law.As a new type of insurance in China,compulsory liability insurance for environmental pollution was born in the era of new contracting mode electronic transaction.It should be abstractly applied in the mode of fulfillment of the obligation to inform and be applicable to the mode of written fulfillment.Thirdly,under the circumstance that the compulsory liability insurance for environmental pollution is limited to some extent as a compulsory liability insurer's right of rescission for the purpose of insurance,the coverage should not adhere to a single model,but should conform to the legislative direction,refer to the specific rules of maritime law,and combine the application of limited obligation of disclosure with infinity.The mode of obligation to inform.Finally,it analyses the matters that the insured can exempt from the obligation of informing in the process of making the compulsory liability insurance contract for environmental pollution.Chaper ?.Discussing the legal supervision of compulsory liability insurance.Firstly,analyze the legitimacy of legal supervision which can be summarized as follows: publicity,particularity of contract and technical complexity.Secondly,it explores the main theoretical structure of the supervision which is basically derived from the general supervision theory.There are three kinds of discussion: the financial supervision interest theory,the legal theory and the trade-off theory.Thirdly,in order to realize the positive interaction between the legal and economic effects of compulsory liability insurance for environmental pollution,the scientific concept of supervision and the appropriate regulatory objectives are defined.Finally,this paper discusses the two main aspects of establishing regulatory rules at the institutional level.On the one hand,setting up an independent regulatory body of compulsory liability insurance for environmental pollution should be the most rational and appropriate way of supervision in China.On the other hand,improving the power content of the supervision of compulsory liability insurance for environmental pollution,including the quality supervision problem,alleviate the moral hazard and adverse selection problems after insurance,and regulate the insurer's ability to pay.