On Legal System Of The Indemnity To Health Damage From Environmental Pollution

The environmental pollution can cause acute, chronic and long-lasting damage to human being like cancer, aberrance and mutation. It`s very common, complex and remediable. Health damage includes physical loss and psychological damage; and includes property interest loss and non-property interest damage. The damage indemnity is to fill up or recover the health damage of the victims.Health is the basic line for human survival and development. The right to health is a basic human right. It is confirmed and protected by law. When the right to health is violated, it has to be recovered by indemnity. The right to health and law remedy are the logical starting point and the theoretical basis. The health damage caused by the environmental pollution is more severe, but the remedy to victims is not effective. So the mass events caused by environmental problem increases by 29% every year, which is the important element affecting the social stability and solidarity. At present, the financial income in China increases every year. It provides the possibility to limit the construction and production of some pollutive enterprises which can damage human health seriously and to compensate the victims. Our Constitution regulates that country respects and protects human rights. It enacts the principle of“people-oriented”in the 17th Party Congress report. The National Act of Environmental and Health was released by eighteen agencies including ministries, committees and bureaus, such as the Ministry of Health, the former State Environmental Protection Administration, etc. The Act persists in the principle of people-oriented and regulates to solve the problem of environment and health, which provides the political basis for the health damage indemnity system.The indemnity system for health damage caused by environmental pollution includes the environmental tort compensation system, the environmental liability insurance system, the public compensation system, the social health insurance system. Japan, France, Germany, America and other countries all set up the system of environmental tort compensation, which serves the corrective justice as fundamental value and discards the element of act illegitimacy and the element of subjective stricture. This system provides compensation to victims by environmental polluters and transfers the loss between the polluters and victims. The environmental liability insurance is that the insurer pays the property interest loss, which includes medical expenses caused by health damage and non-property interest damage in the scope of insurance agreement. This system is to disperse the risk by insurance, which is charged with the potential polluters. The set up of the environmental liability insurance has resolved the dilemma in some range. But there are some situations where the both systems can`t resolve: one is that it is very hard to confirm who is the polluter; another is that the polluter is sure but who can`t pay; the third is the polluter has the insurance, but it`s not enough to pay the loss. Health damage public compensation system and social health insurance system are the suitable systems to resolve the dilemma. The system of public compensation health damage serves civil compensation liability as basis and raises the major funding by government. When the victim can`t got the loss by other remedy methods, they can get the payment by the fund. The system of social health insurance is set up through legislation by government. When the labors get the health damage under the environmental pollution, they can get some compensation from country and society.In the law system of environmental health damage indemnity, all the systems have the positive and negative function at the same time. The environmental tort compensation system has the positive function of damage indemnity and damage precaution, but meanwhile has the negative effect of putting more burden on polluters and of protecting the benefit of victim deficiently and of costing lot to safeguard justice. The environmental liability insurance can protect victim to get the payment in time and disperse the risk of polluters and promote the improvement of civil compensation system, but meantime the dependence of the system and the limitation of insurance compensation and the seek for interest and the management risk affect the positive function of the system. The system of public compensation affects the original intention by the shortcomings of function positioning wrongly and more roles taking-on. Social health insurance has the positive function of providing the loss payment promptly and stable funding source. It also has the problems of narrow scope and difficult money-raising. All the law systems have conflict and merging in the scope division and function playing because they have the disadvantages and advantages individually.About the indemnity system for health damage caused by environmental pollution, it goes through change to tort compensation system and other systems co-existing from the tort compensation, then to social security system. There are three modes:single mode, mixed mode, and complex mode. Every mode has the advantages and disadvantages. Single mode has the disadvantages: the simple applicable situation, high efficiency and low cost, but the available legal systems are less and the applicable scope is narrow. The mixed mode is a good tolerant mode, which can compensate the victims sufficiently and relief the polluters` burden because of the wide scope and more systems, but has the shortcomings of low efficiency and high cost because of more systems choice. The complex mode has the advantages of justice safeguarding, the high efficiency and social security. But it is easy to put more burdens on the national finance because of the high cost.Because of the limits of economy, law and morality elements, China adopts the mixed mode. About the order of all the systems, the“supplement”method should be suitable. The victim can claim the tort compensation, non-tort compensation or social health insurance. As for the three systems, there is also a problem of order. At first, the tort compensation system should be used as the No.1 choice, then the non-tort compensation and social health insurance. Secondly, the order should be from non-tort compensation to tort compensation, then to social health insurance. Finally, the order is from the social health insurance to non-tort compensation, then to tort compensation.Different countries, even the same country in different period, may choose different damage indemnity mode. With the development of economy, law and morality, China can transfer from the current period to new period and adopt the complex mode.