Research On Tort Liability Of Third Party Governance In Environmental Pollution

The tort liability of the third-party governance in environmental pollution is an important topic in the theoretical research of the third-party governance of environmental pollution.As a new model of market-oriented environmental pollution control,the third-party governance of environmental pollution has realized the change from the traditional "who pollutes,who governs" to "who pollutes,who pays,and professional governance".It has achieved remarkable results in reducing pollution control cost?improving pollution control effect?improving regulatory efficiency ? innovating governance technology and promoting the development of environmental protection industry.However,when the environmental protection law was amended in 2014,it did not stipulate the third-party governance system,and the relevant legal system supporting the third-party governance needs to be established and improved.As a result,the current third-party governance of environmental pollution has not achieved the expected results.How to allocate the tort liability of the third-party governance in environmental pollution is the key and core issue of the third-party governance system of environmental pollution.Improper allocation of tort liability will restrict the implementation and development of the third-party governance of environmental pollution.At present,the civil code,environmental protection law,the relevant environmental judicial interpretations issued by the Supreme People's court,and the third-party governance opinions issued by the State Council or relevant ministries and commissions have not made systematic provisions on the tort liability of the third-party governance of environmental pollution,which leads to the divergence of theoretical understanding and the disunity of judicial judgment.Under the background of the state's in-depth promote the third-party governance of environmental pollution,studying the tort liability of the third-party governance of environmental pollution is not only compatible with the central government's promotion of the marketization mechanism for ecological environmental protection,but also echoes with the current practice of the third-party governance of environmental pollution across country,It will have a great significance to further promote the third-party governance of environmental pollution.From the perspective of the development process of the third-party governance in environmental pollution in China,the third-party governance of environmental pollution in China is based on the background of the deteriorating ecological environment in China,through the top-down promotion.In essence,the third-party governance of environmental pollution is the use of market-oriented means to bring the professional and market-oriented third-party into the framework of environmental governance,and introduce social capital to deal with professional environmental pollution through system design,thus to promote the transformation of traditional pollution governance mode.According to the different governance bodies,the third-party governance of environmental pollution can be divided into "government enterprise cooperation" and "enterprise enterprise cooperation" type of third-party governance,and the latter can be divided into independent third-party governance and embedded third-party governance according to whether the pollutants are transferred or not.Under the embedded third-party governance,according to the different ownership of pollution control facilities,it can be divided into construction operation third-party governance and entrusted operation third-party governance.In terms of connotation,the infringement of third-party governance refers to the infringement of others' personal,property and ecological environment due to the discharge of pollutants during and after third-party governance.That is to say,the third-party governance tort is produced in the process of pollutant governance,which is essentially environmental pollution tort.The form of tort includes single tort and several person tort.Correspondingly,the tort liability of the third-party governance in environmental pollution can be divided into individual tort liability and several person tort liability.Based on the specific relationship of governance contract between the parties to the third-party governance of environmental pollution,the tort liability of the third-party governance tort liability may be its own liability or alternative liability.On the basis of combing the civil code on the application of liability to both parties to the contract when the parties to the contract infringe externally,this paper proposes to implement the dual attribution liability for the infringement liability of the third-party in environmental pollution control.That is to say,in the third-party's tort of environmental pollution control,the polluter should bear his own responsibility,and the principle of no fault liability should be applied;the non polluter should bear the alternative responsibility because of its specific relationship with pollution control,and the fault liability should be applied,and only bear the corresponding responsibility in the case of his own fault.Based on the fact that the elements fault and the illegality are not completely the same,the adoption of illegality will not cause inadequate protection to the victims and it will help the development of third-party environmental pollution governance industry,this article advocates that the illegal elements should be treated as a separate component of tort liability of environmental pollution third-party governance,and puts forward three-dimensional judgment standard of illegality.That is to say,some one infringe the rights and interests protected by the law is illegal,some one exceed the tolerance limit of ordinary citizens infringe the rights and interests not stipulated by the law is illegal,and some one violate the ecological environment for excessive pollution discharge infringe the ecological environment is illegal.The damage caused by the third-party's infringement of environmental pollution includes property damage and non property damage.The property damage is determined by the objective balance calculation method,the spiritual damage is judged by the objective standard supplemented by the subjective standard,and the ecological damage is judged by the original ecological environment as the "baseline".On the identification of causation of environmental pollution third-party governance tort,we should shift the burden of proof of causation to the presumption of causation,apply different standards of proof to the infringer and the infringed,and the types of infringement of third-party governance should be differentiated to comprehensively presumption of causality by referring to the theory of causality of environmental tort.From the perspective of the basis for the tort liability of third-party management in environmental pollution,the court practice for the tort liability of the third-party management in environmental pollution,and the academic theory for the tort liability of third-party governance,this paper points out that it is unreasonable to assign the tort liability to one party regardless of the situation in the third-party governance,and it is unlawful to require both parties to assume joint responsibility regardless of the situation,it is improper to use the fault as a undertake standard of tort liability in the third-party management in environmental pollution,It is unscientific to take the contract agreement or breach of contract as the basis to determine the tort liability.In view of the inadequacy of legislation and confusion in practice,this paper proposes that the third-party's tort liability for environmental pollution should be determined on the basis of the legal status of parties involved in the tort.In the third-party governance tort,neither party is the third-party because the two parties to the treatment have a treatment contract relationship,The main body of the two parties may be the polluter,the joint infringer or the tort substitute liability.The corresponding governance parties should bear the polluter's tort liability,Joint infringer's tort liability and tort substitute liability.As the core feature of polluted environment is excessive discharge,the "pollutant discharge" should be taken as the standard to identify the polluter in the case of separation of the third-party treatment of pollution production,pollution treatment and pollution discharge.That is to say,in the third-party treatment,the person who has obtained the pollutant discharge permit is the polluter,the person who has discharged beyond the scope entrusted by the permit is also the polluter,and both parties are the polluters when discharging without permission.In terms of the types of infringement by the third-party governance,the third-party infringements of environmental pollution includes the individual infringement,joint infringement and concurrence infringement.Among them,the determination of joint infringement of third-party governance should be appropriately transitioned from the subjective standards to the objective standards,and take the related joint as the standard.It includes not only the subjective joint connection----the governance of both parties' subjective common fault or common will,but also the objective joint connection----the behavior of the two parties in the governance jointly constitutes the cause or condition of the illegal act and therefore the same damage situation occurs.The third-party governance concurrence infringement of environmental pollution is mainly the opportunistic concurrence infringement,that is,one party's implementation of the direct infringement and the other party provides the opportunity for the direct infringer to implement the infringement According to the one-to-one corresponding relationship between the form of tort and the form of tort liability under the theoretical system of tort liability,in terms of external liability,several third-party governance of environmental pollution shall bear the share liability for tort,several joint tort shall bear joint liability,and several joint tort shall bear supplementary liability.In the determination of the share of internal liability for infringement by the third-party,if there is an agreement,it shall be distributed according to the agreement;if there is no agreement,except the internal liability of the common danger in the third-party governance shall be equally distributed and the joint torts shall be superimposed,and the proportion of the respective causative force in the total causative force shall be determined,the internal responsibility share of the remaining several torts shall follow the liability distribution rules of accountability as primary,cause force as supplement,and fault as supplement.If a third-party manages several persons responsible for infringement to pay more than their share of liability,they may require other responsible persons to share or recover compensation in the case of joint liability and supplementary liability.Exemption is the reason that the responsible person is exempt from the tort liability after the tort liability is established.The reasons for exemption is different form the constitutive elements of tort liability.The constitutive requirements of tort liability solve the problem of whether the tort liability is established or not,and the exemption is to solve the problem of whether the responsible person bears tort liability after the establishment of the liability.After the establishment of the third-party governance tort liability,if there is no exemption,the responsible person should bear the tort liability.The third-party governance infringement of environmental pollution is essentially an environmental pollution infringement.Regarding the exemptions for environmental pollution infringements,my country's legislation is not unified,and the academic circles have not completely consistent understanding of the scope of exemptions for environmental pollution infringements.From the current environmental protection legislation,my country has not formed a clear-cut,scientific and complete system of exemption.As for the determination of exemption of tort liability for the third-party governance,the separate legislation on the pollutants involved in the third-party governance should be applied first.If the separate law does not provide for exemption and coincides with the special tort stipulated in the civil code,the exemption of the special tort shall apply;if it does not coincide with the special tort stipulated in the civil code,the general infringement exemption for the Civil Code shall apply.Specifically,the exemption of the third-party governance of environmental pollution in China mainly includes force majeure and the fault of the victim.The exemption of justifiable defense,emergency risk avoidance,self-help behavior and self indulgence in risk has little room for application in the third-party governance of environmental pollution.The application of force majeure in the third-party governance of tort exemption should be based on the premise that the damage is completely caused by force majeure and the actor takes corresponding measures to prevent the damage or takes reasonable remedial measures after the occurrence of force majeure,but the damage is still unavoidable.In the third-party governance of tort,if the victim intentionally causes damage,the responsible person shall be exempted;if the victim has gross negligence,the responsibility of the responsible person shall be reduced;if the victim has other negligence,the responsibility of the responsible person shall not be reduced.The research on the tort liability of the third-party governance in environmental pollution is to solve the problem that the lack of legislation leads to the inconsistent understanding of the judicial judgment in the third-party governance of environmental pollution,and to provide institutional support for the further promotion of the third-party governance of environmental pollution.The best destination of research results is to be adopted by the legislature.In the future,the legislative perfection of the tort liability of the third-party in environmental pollution control can be stipulated in the form of amending the environmental protection law,introducing the judicial interpretation of the tort liability of the third-party in environmental pollution control or introducing the administrative regulations,but the best legislative form is the judicial interpretation of the tort liability of the third-party in environmental pollution control.When the legislation of tort liability of third-party governance is perfected,the following systems should be solidified: dual imputation of tort liability for third-party governance of environmental pollution,identification standard of polluter for third-party governance of environmental pollution,assumption and recovery of tort liability of several persons for third-party governance of environmental pollution,application of exemption of tort liability for third-party governance of environmental pollution,etc.