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On Dualistic System Of Liability Fixation In Enviromental Tort

Posted on:2004-05-06Degree:MasterType:Thesis
Country:ChinaCandidate:X M MoFull Text:PDF
GTID:2156360092492567Subject:Civil and Commercial Law
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By comparing and analyzing the meanings of fault and no-fault of environmental tort in various countries, it is concluded that fault and no-fault liabilities are supported by a dualistic conception system which consists of fault and no-fault conceptions. The meaning of fault includes both subjective and objective faults (breach of duty of care equals fault and exceeding of bear limit equals fault), while no-fault means "whether there is fault or not", including "whether there are subjective and objective faults or not".Chinese environmental tort should adopt dualistic system of liability fixation of fault liability and no-fault liability, not only it is widely adopted by various countries, which has institutional necessity and legal philosophic rationality, and reflects the interior request of the development of doctrine of liability fixation of environmental tort, but also it is a reasonable choice of system of liability fixation in Chinese environmental tort.No-fault liability should play dominant role in this dualistic system and it should be preferentially adopted according to the special provision of Chinese law. In order to improve present dualistic system of liability fixation of Chinese environmental tort, "fault" should be widely illustrated by "objective fault theory" and "bearing limit theory". Also the 124 clause of civil rule of China should be revised in two ways: abolishing it or deleting the inappropriate provision "to break the provision of the protection of environment and the prevention of pollution in our country" so as to change it into a special clause of environmental tort in the coming civil code of China.
Keywords/Search Tags:environmental tort, doctrine of liability fixation,fault liability, no-fault liability
PDF Full Text Request
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