Research Of Litigation Proof In The Environmental Torts

Through analyzing the characteristics of environmental tort, the author thinks thatthe main problems in the environmental tort litigation show as follows: traditionalrules of distribution of burden of proof, traditional proof criteria and traditionalcausation theories. To resolve the above problems, the author thinks, the first,according to the civil litigation epistemology, probability criterion should be appliedto the civil litigation. The traditional "inevitability" criterion may make suffers havetroubles in proving greatly. It is harmful to protect the legal rights and interest ofsuffers. Through analyzing the proof criterion theory, the author holds that we shouldestablish a diversity criterion. So, the proof of some indirect damages and damagedanger may adopt different criterion with the proof of direct damages and existeddamages. As the proof of the environmental-right damages, general person's level ofunderstanding should be the criterion we must obey. The second, as the distributionof burden of proof, comparing with the different theories of distribution of burden ofproof between case law and civil law, different theories among of Germany, theauthor thinks that China should establish a distribution of burden of proof systembased mainly on the Dr. Leo Rosenberg' Die Normentheorie, supplemented by theinterest-judge theory in case law countries. Under the above theory, burden of prooffor the injurious act and damages should be shouldered by the defendant on theproper conditions under a flexible rule. The third, traditional causation is the mainfactor which affects suffers' burden of proof. Recently, well-matched causationbecomes the general theory gradually. Compared with the other theories, it is moresuitable to the epistemology and the aim in the civil litigation, so, kinds ofpresumption of causation theories arise at the historic moment, providing affectivetheory for the proof of causation. Because every theory has virtues and shortcomingsat the same time, we need to establish a comprehensive theory system.It researches the litigation proof in the environmental torts mainly in six sections.The first section clarified the present condition of environment tort research, thepurpose and meaning of the research.The second section relates to the fundamental of the environmental tort. It involved the principle of the blame, the concept, character and document of theenvironmental tort. The content of this section is the base of the next four sections.The third section starts with the character of the environmental tort, consideringthe need of the litigation practice, and link the principle of the environmental tort andcivil litigation proof, opening out the main problem of the environmental tortlitigation.The fourth section clarifies the proof object of the enviromnental tort litigation. Toguarantee the litigation and grounding on the particularity of the environmental tort,the author takes the environment pollution fact and the causality of the pollutionaction and the pollution fact to the proof object.The fifth section introduces the basic theory of the environmental tort litigationonus probandi and distribute rule. On the ground of analyzing the practice actualityin both sides of legislation and justice, the author put forward the amend suggestion.Last of this chapter, discuss the prove effect when convert the onus probandi.The sixth section relates to the proof problems of the pollution fact and causality.The basal path is to use the civil litigation proof standard and the basic theory of theproof manner. This section clarifies some difficulty and especially problem, such asdamage risk, the aftereffect of the damage of environmental right, and some specialindirect proof in the compensation of environmental tort.