Research Of Litigation Proof In The Environmental Torts

We can comprehend the concept of environmental tort in a broad sense and in a narrow sense. In a broad sense, environmental tort is one of specific torts, which causes personal injury, loss of property and damage to environmental rights due to environmental pollution and damage to ecosystems caused by human beings' activity. In a narrow sense, the concept only means pollution-tort. Environmental tort carry out liability without negligence, so, the requisites are injurious act, damage, causation. The Author only chooses to discuss the existing problems about damage and causation in the environmental tort litigation.Through analyzing the characteristics of environmental tort, the Author thinks that the main problems in the environmental tort litigation show as follows: traditional rules of distribution of burden of proof, traditional proof criteria and traditional causation theories. To resolve the above problems, the author thinks:The fist, as the distribution of burden of proof, comparing with the different theories of distribution of burden of proof between case law and civil law, different theories among of Germany, the Author thinks that China should establish a distribution of burden of proof system based mainly on the Dr. Leo Rosenberg' Die Normentheorie , supplemented by the interest- judge theory in case law countries. Under the above theory, burden of proof for the injurious act and damage should be shouldered by the plaintiff, whereas, causation should be shouldered by the defendant under the shifting rule. As the proof for the damage danger, it is necessary that burden of proof for the damage danger should be shouldered by the defendant on the proper conditions under a flexible rule.The second, according to the civil litigation epistemology, probability criterion should be applied to the civil litigation. The traditional "inevitability" criterion may make suffers have troubles in proving greatly. It is harmful to protect the legal rights and interest of suffers. Through analyzing the proof criterion theory, the Author holds that we should establish a diversity criteria based on probability criterion. So,the proof of some indirect damages and damage danger may adopt different criterion with the proof of direct damages and existed damages. As the proof of the environmental- right damages, general person's level of understanding should be the criterion we must obey.The third, traditional causation is the main factor which affects suffers' burden of proof. Recently, well-matched causation becomes the general theory gradually. Compared with the other theories, it is more suitable to the epistemology and the aim in the civil litigation, so, well-matched causation theory should be the basic theory in proof of causation. But we still need another rules because of the peculiarity of environmental tort having, so, kinds of presumption of causation theories arise at the historic moment, providing affective theory for the proof of causation. Because every theory has virtues and shortcomings at the same time, we need to establish a comprehensive theory system.