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Comment On Improving And Perfecting Of The Compensation Liability System In Environmental Tort Of Our Country

Posted on:2008-07-07Degree:MasterType:Thesis
Country:ChinaCandidate:L YangFull Text:PDF
GTID:2166360215452433Subject:Environment and Resources Protection Law
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The environmental tort is following with the serious environment problem. The reasons which caused environment tort include environmental pollution and ecocide. It damages civil personal right, ownership of property and the rights for environment indirectly according to damages the medium of environment. Environment tort has shown extremely large particularity compared with civil tradition tort. First, the position of both sides shows essentially unequal; Second, the causing behaviors of environmental tort are usually reasonable and legitimate; third, the rights been damaged usually include private. According to our country positive law, only compensation damages applied in the environmental tort. Its purpose is just to fill up the actually lost of the aggrieved party. So in the past the exemplary measures are not allowed to use. But the practice shows that compensation damage doesn't fit in with environmental tort because of its particularity. One side is that under compensation damage the aggrieved party can only gain the compensation for damages of the body or property but not for the damage of the rights for environment which is not enough for the party to return to normal. The other side is that under now available environment responsibility frame, the person who do harm to others do not need to think about the environment cost .So there is almost no punishment to person who does harm, which also makes it difficult to achieve the purpose of preventing a delict from happening once again. A fine tort law is not only going to relieve an aggrieved party rationally, but also ought to have certain punishment to the person doing harm at the same time and in order to realize the function of prevention. But also because of the importance of the environment and the particularity of the environmental tort, the function of prevention appears more important. The deficiency of traditional system requires us eagerly to build up a rational system rapidly. The opinion of this article is that we not only need to introduce into exemplary damage outside the compensation damages, but also to build up corresponding socialized relief mechanism at once.I think there are sufficient reasons to hold out the idea to introduce the exemplary damage into environmental tort. Exemplary damage is a responsibility system which originated from the common law of England, and gets a universal relevance in the country like America,Canada,Australia and so on. At the beginning, the main objective of the system is to compensate the aggrieved party's damages which are difficult to judge with money, for instance, the spirit that is pained or the mood that is baffled. From the analysis for the origin of exemplary damage, it's sure that compensating an aggrieved party should be one of whose self indispensable function. So we think that exemplary damage of course is with all the function of compensating an aggrieved party,punishing the person who does harm and preventing a delict from happening once again. The introduction of exemplary damage to environmental tort bases on the all-round acquaintance to that system and clear cognition to our country reality. The main body of a book thinks that there is both necessity and feasibility to introduce exemplary damage into environmental tort. First, we need to discuss the necessity: one side is that the system's preventing function could boost the principle of prevention in the field of environment protection to come true fairly well; And the system's punitive function could also make the outside cost of an author of the injury inside and further have an effect to promote just realization of society. Then what is about the feasibility? First, the widespread use of exemplary damage both in common law system country and civil law system provides a solid foundation for its introduction. Second, the stipulation of exemplary damage in the Article Forty-ninth of"Law of the People's Republic of China on the Protection of Consumers' Rights and Interests"and in the Article Eight and Ninth of"Supreme People's Court Explanation about some problems in applying the Law of Commercial Residential Building Bargain Dispute"also provides law and regulation precedent for its introduction. Last, the particularity of environmental tort provides corresponding system basis for exemplary damage's appliance. After the discussion of the necessity and feasibility, we should pay attention to the problems of the building of the system. We should be clear that because the damages caused by environmental tort includes private interests and public interests, so it could be divided into two kinds that we call them private-damage and public-damage. So decided by the different characteristic of the two kinds, compensation damage should be used to compensate private-damage and exemplary damage should be used to compensate public-damage. Because of the punitive function of the system, we should make clear that the person satisfies following requirements when he is suitable for use in decision: first, having fault on subjectivity; second, having grave damage result on the objective; last, higher certificates responsibility of the plaintiff.The introduction of exemplary damage into environmental tort is good for giving the rein to the function of exemplary damage's preventing function and realizing the conversion from end pollution controlling to the headstream. But the responsibility according to exemplary damage also appears liking private. Since environment tort usually brings about damages which are of characteristics such as having universality and being not allowed to restore nature and also because the introduction of exemplary may makes the person taking the responsibility pays deficiency, so it may lead to compensate aggrieved party difficultly and even bad for the development of the whole society. For the goal to realize sustainable development and harmonize the contradiction between economic growth and environmental protection effectively, this article submitted that it is necessary to build up corresponding community responsibility system outside self tradition responsibility. Though the ways to realize community responsibility are various, but the included Environment liability insurance and Fund of the Compensation for Environment Damages are accepted by most country. Simultaneously I think that under the frame setting up in environment tort compensation for damages law now, it requires that environment liability insurance and the environment compensation for damages fund should inter-work and run parallel. Only according to the coordination of the two systems, the damages caused by environmental tort could be compensated completely and rationally. Environmental liability insurance is not a fresh in our country. The appliance of the system at the early stage has provided a lot of the experience may draw lessons. So it seems naturally to introduce exemplary damage into environmental tort. The article has pointed out the problems about the building of environmental liability insurance that we should pay attention to. First, we should make clear to take compulsory insurance as principle, and take buying insurance arbitrarily as exception way. Second, we must be clear the range which may accept insurance. Last, the responsibility quota should be clear and definite, too. The fund of environment compensation for damages is a system which is used extensively and improving step by step on the international. Situations of the environmental problem of our country and the development of relevant system have shown the feasibility of the building of the fund of environment compensation for damages. To set up this system, we should make sure the source of the fund, found corresponding fund administration, be clear the paying back-off condition, and build up rational going after fulfilling mechanism.Finally, the article submits that under peculiar environmental tort, we can't neither consider introducing exemplary damage only or the conversion from self responsibility to community responsibility. Only when self responsibility coordinated with community responsibility to use, it is possible to have an effect to bring the compensating punitive and preventing function of the system to play.
Keywords/Search Tags:Environmental
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