Research On The System Of Remedy To The Marine Environmental Tort

Now,with the marine environmental pollution problems highlighted and the concept of sustainable development continuing to promote,the development model at the cost of environment has become gradually being eliminated.But in our society,there are many phenomena of recklessly use of environmental resources,ignoring the environmental pollution problems.Besides,unpredictable accidental environmental pollutions often occur.The road of sustainable development is not sailing smoothly.Environmental tort liability is an important legal remedy for preventing and remedying the risk of environmental pollution.As a new topic in the territory of the tort,the environmental tort is different from the traditional tort.It is important to clarify the related conceptions and the theoretical deputes of the marine environmental tort,which is the prerequisite to construct marine environmental tort relief system.The perfect system of marine environmental tort not only protects the rights and interests of victims of environmental tort,but also maintains social fairness and justice.From a long-term perspective,it will help both the individual and the public toparticipate in the supervision of environmental issues actively,and to pursuit the compensation of the damage caused by the environmental pollution for the purpose of maintaining their own environmental rights,by which forming a virtuous circle of environmental protection.The research topic of this thesis is the system of marine environmental tort remedy focusing on oil pollution damage.It is an environmental civil liability that is discussed in environmental tort and belongs to the category of private law.It is required for practice to include public welfare environmental issues within the scope of private law,which is rooted in the fact that the rights and interests of victims are not enough to remedy the damage to the marine environment.The marine environmental tort is an abstract theory.Therefore,the system of tort remedy in the marine environment is a theoretical construction.The construction of theory often needs to be investigated from practice.Oil pollution damage is the model of the practice of marine environmental tort.This thesis conducts an in-depth and systematic analysis of the current international civil liability system for marine oil pollution damage through the system of international conventions and the typical regional system,and examines the historical evolution,logical framework,rules,validity and defects of the mature remedy system.Through comparative analysis to both the Remedy Mechanism of Damages Compensation and Social Remedies Mechanism of two systems,pointing out the limitations and causes of the international convention system,and analyzing the effectiveness and advantages of the regional system established by the United States.At the microcosmic level,this thesis makes a separate analysis of relief mechanisms for environmental rights,to complete the content of the system of infringement remedy to the marine environment.By distinguishing the private equity marine environmental rights and the public interest marine environmental rights,it is targeted to probe the problems and solutions that the respective relief mechanisms face.Finally,in the light of the shortages of China's marine environment tort remedy,in the comparison and reference,exploring the relief model suitable for China.Through the reconstruction of China's marine environment tort remedy system,it is possible to establish a regional(China)oil pollution damage civil liability system.This thesis is composed of eight chapters,and core content is as follows:Chapter 1: Introduction.To begin with,this chapter reviews the disagreement on the theoryof environmental tort in China's environmental lawstudy and points out that the theory of environmental tort is the primary issue to study the system of tort remedyto the marine environment.At the same time,and states the necessity and practical significance of the remedy to the marine environmental tort.Secondly,defining the concept related to the research topic,clarifying that the essence of the marine environment tort is an environmental civil liability and it belongs to the category of private law;establishing the global concept of the marine oil pollution damage civil liability system;pointing out that the international convention system and the regional typical remedy system,the United States oil polution law system,as the main direction of investigation.Thirdly,through the review of relevant literatures at home and abroad,it points out that the existing research results are lack of practicality,lack of research on the macro-system and incomplete research.Finally,the tort remedyto the marine environment rooted in the practical needs,this article from the analysis of practical problems to the establishment of theoretical system,selected comparative analysis,historical analysis,value analysis,case analysisas the main research methods.Chapter 2: Theoretical Analysis and System Overview of Tort Remedy to the Marine Environmental.This chapter clarifies the particularity of the marine environment tort from the aspects of the concept and characteristics of the marine environment tort and the differences between the marine environment tort and the traditional tort.It analyzes the reasons why it is difficult to be fully covered by the traditional system of tort liability,and clarifies the diversified remedy routes for the marine environment tort.According to the typological analysis of the marine environment tort,aiming at the deficiency of the traditional classification,this thesis tries to use the new angle and the standard to classify the marine environment tort.According to the conclusion of the analysis,it explains the reason of focusing on oil pollution damage in this thesis,and clarifies the necessity ofclassification of the remedy mechanism of environmental rights.From a global perspective,this thesis explores the mature system of remedies for the tort remedy to the marine environmental,which centered on oil pollution damage.The CLC-IOPC system and the US OPA regional system will be the institutional analysis targets.Chapter 3:Remedy Mechanism of Damages Compensation for infringement of the Marine Environment.This chapter mainly analyzes the remedy system of damages compensation for infringement of the marine environment,focusing on the principles of liability imputation,liability limitations,and compensable losses.The remedy system of damages compensation for infringement is the first-level compensation mechanism of the international convention system and the US OPA regional system.Through the comparative analysis of the remedy system of damages compensation for infringement of the two systems,we can see the system differences of the two systems and the limitations of the CLC-IOPC system in setting up the remedy system of damages compensation for infringement.Chapter 4:Social Remedies Mechanism for the Infringement of the Marine Environment.This chapter mainly analyzes the socialized remedy mechanisms for the infringement of the marine environment.The both second-level compensation mechanism of the CLC-IOPC system and the OPA regional system in the United States belong to socialization remedy,and the fund mainly serves as a relief method.This chapter mainly examines the operating mechanism of the IOPC fund in the CLC-IOPC system and the Oil Pollution Responsibility Trust Fund(OSLTF)associated with the 1990 OPA,and conducts a comparative analysis of the two funds from the mandatory liability insurance system and the fund system.Chapter 5:Causes Analysis of and Suggestions to the Absence of International Relief Mechanism for Oil Pollution Damage in Offshore Oil Development.Due to the limitations of the CLC-IOPC system in perspective of application,there is no international remedy mechanism for oil pollution damage in offshore oil development.Firstly,this chapter points out the limitations of the CLC-IOPC system in perspective of application of the vessels by comparing the differences in the scope of application of the CLC-IOPC system and the US OPA regional system.Secondly,an empirical study was conducted by taking the oil spill accident in the Gulf of Mexico as an example to examine the application of regional systems in the case of oil pollution damage in offshore oil development.Finally,through the analysis of the root causes that oil pollution damage in offshore oil development excluded from international conventions,this paper also examines the beneficial attempts of regional international conventions on oil pollution damage in offshore oil development and puts forward sound suggestions for the international convention system.Chapter 6:Remedy Mechanism for the Marine Environmental Rights.As a special object of infringement on the marine environment,environmental rights should be included in the remedy system.This chapter mainly focuses on environmental rights and explores the remedy path of environmental rights.Marine environmental rights are often closely linked to environmental damage.Through the analysis of environmental damage,the type of marine environmental rights is realized,and the marine environmental rights are divided into private marine environmental rights and public marine environmental rights.Through the concrete analysis of the marine environmental rights,it clearly points out the different forms of marine environmental rights in practice,and carries out the targeted choice of remedy routes according to the different types of expressions and actual needs.The remedy of the private environmental rights lies in the compensation for the pure economic loss,while the remedy of the public environmental right lies in the solution of the theoretical perplexity of the subject of the claim,and the environmental public interest litigation is the main way to realize the remedy.Chapter 7:Chapter 7 "Institutional Reconstruction of the System of Remedy to the Marine Environmental tort in China".This chapter takes China as the research object and reconstructs the remedy system of marine environmental tort.First of all,from the situation of the marine environment infringement in recent years and the incident of Chinese ConocoPhillips oil pollution,we can see the problems existing in China's marine environment tort remedy.Secondly,take the international convention system and the US OPA system as the model direction for rebuilding China's marine environment tort remedy system.Through the investigation of the status of China's accession to the international conventions concerning the pollution of the marine environment and the analysis of the reasons why China has not acceded to the International Convention on Oil Pollution Damage Compensation Fund,thisthesis proposes two ways to perfect the institutional mode.Model 1,making accession to the International Convention on Oil Pollution Damage as a precondition,highly involving in the international convention system;Model 2,drawing lessons from the US OPA system to establish a civil liability system for oil pollution damage.Finally,the remedy system of infringement of the marine environment in China is perfected through the establishment of a social remedy mechanism for the infringement of the marine environment and the establishment of an environmental public interest lawsuit system.Chapter 8:Conclusion.This chapter makes a conclusive discusses of the main points of this thesis and puts forward an ideal prospect for the relief of marine environmental tort.