On The Socializing Of Compensatory Liability For Environmental Tort

The environmental problem refers to the environmental disruption and the deteriorating of environmental quality caused by the changes of the nature or human activities, and the negative impact it brings on the survival and development of human being. The environmental problem engenders a new tort—environmental tort. An environmental tort refers to an artificial pollution or destruction on the environment, which causes a damage or risk of damage on personal right, property right and environmental right, so as to threaten the sustainable development of human being. The environmental tort is distinctively characterized in the inequality and the diversity of subject, the confusion of infringer and victim, the value rationality of causative act, the sociality of injury as well as the chronicity, remoteness, repeatability and accumulation of the state of being infringed. Therefore its remedies evidently differ from that of traditional tortious act. A remedy for environmental tort consists of civil remedy and administrative remedy. The civil remedy includes removal of tort, indemnification for injury. A removal of tort is a preventive remedy for the purpose of stopping the ongoing violation or the possible violation in the future, whereas, an indemnification for injury belongs to postmortem solution aiming at compensating the existent loss. The administrative remedy is intended to complement the civil remedy, and thereby including an act of administrative exclusion, an act of administrative compensation, an act of environmental civil dispute, state compensation law, and a social security system etc. Among them, the compensatory liability for environmental tort (CLET), which is born out of civil liability and covers much of administrative law and law of social security, is one of the major remedies for environmental tort.CLET means that the obligor who polluted or disrupted the environments pays indemnities to the party injured for the purpose of reimbursing his losses thereof. It falls into two categories: one is that the infringer has been confirmed and therefore he himself is bound to honor his liability, namely, the personalizing of CLET; the other case is that the infringer can not be identified or is incapable of honoring his liability, so that the loss would be dispensed to the whole society through a socialized system, in spite of the bound of infringer and victim, namely, the socializing of compensation liability. An environmental tort is a violation on social interests and is established upon the background of well developed hi-tech. The theory of compensation liability is born out of the traditional civil liability. On the basis of the personalizing of the liability, the theory of the socializing of liability formed, in accordance of which, a highly socialized mechanism of compensation is established to provide the party injured by the environmental tort with sufficient and timely remedies as well as to promoteindustrial activities, realize the sustainable development.The exterior conditions for the formation of the theory of CLET lie in the socializing of civil law, the establishment of environmental right in the rights system along with the interior perfection of tort laws.The Socializing of Civil Law The Latter-day civil law was based on the equality and the non-interchangeability of subjects. Autonomy of private law, absolute ownership and liability for fault were esteemed as its fundamental principles. With the rise of socialized mass production in 19th century and a profound conversion in the field of the social economy, the latter-day civil law was subjected to its disability in adjusting the new social relations aroused from the development of new tech and new economy. And the remedies it could provide to environmental injury were poor as well. At the beginning of the 20th century, in accordance with the theory of social associationism, some jurists proposed the sociality of rights and the social obligation. Whereas, in practice, the active participation of the state in social life, the public power's extensive intervention in the fields of private law and its enhanced supervision and interference over private legal relations led to an massive adjustment in the principles of individual supremacy, right standard. Within civil law, autonomy of private law, absolute ownership and liability for fault experienced profound changes; while, outside of civil law, social law which targets for adjusting social interests rose up. The latter-day civil law, stemmed from individual rights standard, evolves into modern civil law based on social rights standard. That is the socializing of civil law, including the publicizing of private law, socializing of rights and liabilities.The Establishment of Environmental Right in the Rights System The acknowledgement of environmental right is a new question for study for modern law. In 1960's, Professor Sachs proposed the theory of Environment Communion and the theory of Public Commission. Later, the viewpoint of environmental right was proposed. Henceforth, more and more scholars held that the environmental right should be appended into the constitution as a basic human right. The environmental right refers to a citizen's right to survive in and take advantage of the environment. Since the environmental right is one of the private rights, when the environmental right is confirmed to be a constitutional right, its attributes as a private right should be acknowledged in view of the protection from the civil law and the civil proceedings. The environmental right is a right system consisting of multinomial subsidiary rights including the environmental usufruct, the right to learn the truth, the right of participation and right of claim.The Interior Perfection of Tort Law The tort law adapted itself materially to the socializing of the civil law, which provides a guideline to the socializing of CLET. As far as CLET is concerned, theperfection manifests itself mostly in the adjusting of the constructive conditions of CLET viz. the abandonment of illegal constructive conditions, the establishment of no-fault liability, and the application of the cause and effect presumption principle. Hence, CLET takes only the injury and the causal relation between tort and injury as its constructive conditions. The simplification of the constructive condition for injury and that of adducing evidence for the party injured extend the scope of compensation obligors. Accordingly the loss has been shared to some extent.The tort law alone is incapable of providing sufficient and effective remedies to the injury resulted from a tort. With the development of the society, the remedy for the party injured has become the first target of tort law and other compensation systems, which promote the increasing improvement of the social compensation system and social security system as well as the reform on the structure of the recovering system of injury. The socializing of CLET is to distribute the injury over the society through a highly socialized mechanism without regarding the limit of the party injured and the infringer, which includes the social compensation system and the social security system.The social compensation system refers to a system that the potential infringers pay premium or accumulation fund to transfer the risk of potential damage to the insurance agents or foundations via insurance, funds or administrative compensation. It consists of environmental liability insurance system, finance guaranty and administrative compensation system.The environmental liability insurance refers to the system that the insurer offer a compensatory damage to the party injured in accordance with the stipulation under the insurance contract when the insurant are obliged to perform his liability for compensation aroused from his environmental tortious act.Finance guaranty or sponsion refers to a system that the possible person liable for environmental tortious act affords a fund which will be wholly used for the effective and timely remedies for the party injured. The system consists of a consigning guaranty system and an accumulation fund system. The consigning guaranty system means a pollutive enterprise, before it starts running, consigns a guaranty bond to a given organ pursuant to related laws; or, in the process of production and managements, put a certain amount of fund aside for the compensation. The accumulation fund system requires all the enterprises that have the equal risk of being claimed to render a certain amount as to set up a mutual fund, which will be used to pay for any claims against one of the enterprises firstly, and then the claimed enterprise reimburses the fund.The administrative compensation system involves the interference of national public power in CLET. It is a system whereby the government levies environmental tax, environmental fees to preparea compensation fund for the purpose of compensating the party injured in environmental tortious act. Furthermore, when the infringer liable affirmed, in conformity with the constructive conditions for compensation for injury, some of the foundations are titled to hold the right of subrogating the party injured to claim against the infringer liable for the damage it has paid. The system is compatible with a state like ours where public power commonly interferes with the social life. Especially, when combined with the environmental liability insurance system, it can offer more proper and timely remedies.A social security system is a compensation system that is established on the basis of welfare state, social associationism. Since injuries arousing from Environmental tort are caused by a violation against social interests, it should certainly enter into the social security system. The social security system includes social insurance, liability convergence, and state performance. A social insurance is an insurance compulsorily imposed on members of the society by the state for the purpose of implementing its social policy and seeking to social welfare, in which, personal injury by environmental tortious act is included. The liability convergence is a system whereby the other subjects liable are free from a direct damage for the party injured, when, one of them has been assumed to bear such a liability. State performance, refers that the state ensure the security of performance by government revenues, and assume part of the damage when the party injured may get no remedy on account of the performance incapability of the infringer, liability insurer, and finance guarantor related. The level and the capacity of the social security system depend on the level of a nation's economic development. Therefore, we should work up such a security system conforming to our nation stage by stage.The tort laws, the social compensation mechanism and the social security system together constitute an CLET system. In a traditional system the tort laws play the part of assigning the damages, whereas, with the development of our society, providing the party injured sufficient, timely remedies has become the primary concern and thus promote the continuing development of the social compensation system and the social security system. In CLET system, the social compensation system and the social security system works as the basis, especially the latter of the two systems serves as a safeguard (of the system). Accordingly, the tort laws recede to an inferior position. While we are perfecting our tort laws, we need to boost our social compensation mechanism and social security system as well.The access available to realizing CLET includes litigation, administrative quasi-judicial proceedings and non-litigious disposal. Litigation refers mainly to civil litigation, whereas, non-litigious disposal comprises administrative quasi-judicial proceedings, conciliation, andarbitration. Compared with the traditional civil litigation, environmental civil litigation has gone through material reform to adapt to socializing trend of CLET, which manifests itself mostly in the expansion of citizen's right of act, the inversion of the burden of proof, the cause and effect presumption, and the extending of the limitation of acts. The administrative quasi judiciary proceedings refers to the administrative organ intervene in the settlement of environmental dispute and, with the administrative power's functioning, overcomes the disadvantage of judicial accesses with the advantages of administrative forces.