On Legislation Of Environmental Pollution Damages

With the environmental pollution in China becoming more and more serious, the disputes on environmental damage have increased a lot. However, those disputes could not be settled timely and reasonably because the legislation on environmental damage is not quite mature, which has a bad impact on the protection of people's legal right and the maintenance of a peaceful society. The legislation on environmental pollution damage should be improved to meet the needs of building a harmonious society.There are solid theoretical and realistic basis for legislation on environmental pollution damages. The new theory of environmental rights, which is no longer restricted within civil law and civil procedural law, provides the legal foundation for legislation on environmental pollution damage. The Holism of Environment Ethics provides the basis of environment ethics for legislation on environmental pollution damages. The theory of social conflict and social control provide the basis of legal sociology for legislation on environmental pollution damages. The theory of cost and benefit provides the basis of law and economics for legislation on environmental pollution damages. The increase of Chinese corporations and individuals'economic strength and comprehensive national power provides the economic basis for legislation on environmental pollution damages. The need for establishing a harmonious society where people and nature peacefully coexisted provides the political basis for legislation on environmental pollution damages.The legislation on environmental pollution damages focuses on the sustainable development and the construction of harmonious society, with the intent to achieve the following purposes: timely and correct settlement of environmental civil disputes, protection and improvement of the environment, maintenance of the ecology balance, protection of the personal, property and environmental rights of the public, and promotion of the harmonious and sustainable development of environment, economy and the society.More and more foreign countries have created specific law of environmental pollution damages, the typical laws among those are as following: the Environmental Damage Act in Sweden,The compensation law for environmental damages in Germany, The Comprehensive Environmental Response,Compensation,and Liability Act in United states of America(CERCLA),and the Settlement of Pollution Disputes Act in Japan. It is necessary for China to create a specific law on environmental pollution damages because of the high frequency of environmental disputes and the hardness in the settlement of those disputes although China starts late on the legislation of environmental pollution damages.The environmental pollution damages law should include the liability principle, determination of the causal relationship, prescription for action and the forms of bearing the liability in environmental pollution damages cases. As far as the liability principle is concerned, the single principle of liability without fault should be followed. Regarding the causal relationship between emission and environmental pollution damages, the adequate cause theory should be followed, which will divide the causal relationship into two categories: causation in the establishment of liability and causation in the extent of liability. According to the adequate cause theory, the causation presumption is only used in causation in the extent of liability and the causal relationship can be determined based on the theory of indirect negative evidence?the theory of res ipsa loquitur and the theory of epidemiology in different circumstances?The punitive damages for environmental pollution should be levied when the discharger continues discharging or let the discharge go unchecked when he knows that the discharge might cause damage. The term of normal prescription for action in environmental pollution damages cases is three years, the starting point for calculating the prescription term is from when the victim could exercise its claim, not from when he knows or he should know he could exercise such claim. The longest term of prescription for action in environmental pollution damages cases is 30 years, the starting point for calculating the prescription term is from when the infringing act is carried out or when the accident causing the damages happens, not from when the victim is infringed.In order to achieve the compensation in environmental pollution damages cases, the environmental pollution damages law should have articles on the ways to socialize the environmental pollution damages, which include environment liability insurance and fund system. The environment liability fund can be gathered from two sources: one is from the private which should be provided by the major sponsor- the pollution dischargers, the other is from the government which should be taken from environmental fees (including pollution discharge fees and natural resources compensatory fees) and environmental tax. The above two kinds of fund should be used in the following order: the private fund should be used first when the conditions for using the private fund are met and only when such conditions are not met, the government fund should be used. The government should take the final compensatory liability to the victim who could not get compensation from any kinds of fund.In order to facilitate the application of the environment pollution damages law, the public interest litigation system should be established which will entitle the citizens, social organizations, procuratorial organs and the administrative organs to file a litigation to protect the environmental interest of the public. For a better settlement of the environmental disputes, a specific environmental disputes settlement organ should be established, the administrative rulings should be reinforced by entitling them the rights of compulsory enforcement.Environmental pollution damages law should be a specific law combining substantial law and procedural law together, which is a lower-level law of environmental protection law. The major contents include the substantial issues like the scope of the environmental pollution damages, the conditions for bearing a liability, the forms of bearing a liability, the administrative fine system, the criminal penalty system and the prescription of litigation, as well as the procedural issues like the presumption of causal relationship, the inversion of the burden of proof?public interest litigation and ADR(Alternative Dispute Resolution).