Study On The Civil Liability Of Environmental Tort In China

With the rapid development of industrialization and urbanization,People wantonly let out all kind of Poisonous and deleterious material and unreasonably develop and utilize natural resources in the during of pursing the economic rapid development. So Environmental quality becomes worse and ecological damage also becomes more and more serious. At last,economic development and People's life quality improvement are counteracted,and the survival and development of the human being is threatened. Therefore,it has been urgent and arduous task that protecting the ecological environment and realizing the sustainable development. Environmental protection and economic development have been very important topic for discussion and its relationship affects common destiny and outlook of the human race. At present, there are a few problems and defects in the law system of our environmental tort civil responsibility, which are unbenefit to protect the rights of the victim.The first part of the paper analyzes the notion of environmental tort and its characteristics. The definitions of many countries of the world are different. In Japan, the environmental tort is called "Public Hazard". In American and England it is called "Nuisance". But in German and France, they call it "Immission" or "Neighbors Nuisance". In our country, scholars don't give a unified concept on environmental tort, and our laws concerned also don't define it definitely. Through comparing and analyzing many different concepts of some scholars, it's necessary to consider from three angles in order to define environmental tort, the causal behavior of environmental tort, its state and object of tort. It can be defined: one particular infringement behavior, as a result of industrial and other human activities' exerting ill influences on environment, thus leading to environment pollution and ecological devastation, and further doing harm or having done harm to personal right, property right and other rights related to environment. As a new kind of tort behavior, environmental tort has shown extremely large particularity compared with civil tradition tort. Such as, the position of both sides shows essentially unequal; the causing behaviors of environmental tort are usually reasonable and legitimate; the course of infringement is indirect.In the second part argues the criterion of liability of environmental tort. The criterion of liability of environmental tort has changed from fault liability to no-fault liability. Fault liability is first applied to environmental tort, but with the development of human society, more and more serious environmental tort phenomenon appear, because of environmental tort behavior is usually reasonable and legitimate, so the application of fault liability will lead to unfair to victim. Because of this, the theory circle makes some amendment of the principle of fault liability, which include fault objective, illegality as fault and fault deduction. However, these theories can't solve the problems of environmental tort well, because they determine liability still based on fault, and no-fault liability comes about. No-fault liability remedys the defects of fault liability, and thus realizes the equity and justice of law. Then, the paper studys our country's law on environmental tort, in view of scholars' dispute, and figure out that the system of the responsibility principle of our country environmental tort is "the dualization" system. At last, the paper put forward some proposal on consummating the responsibility principle of our country environmental tort.In the third part, the paper discusses the constitutions of environmental tort. There is some controversies between "two constitutions theory" and "three constitutions theory", because of the different understanding of our civil law and environmental law. The focus of the controversies between "two constitutions theory" and "three constitutions theory" is that whether the illegality is one of the elements of environmental tort or not. The opinion of the paper argues for abandoning the illegality element. Not only because of special law prior to normal law, but also because of some essential reasons: first, both "two constitutions theory" and "three constitutions theory" have defects; second, the causing behaviors of environmental tort are usually reasonable and legitimate,but illegality denies this which lead to conflict, so it's reasonable to abandon the illegality element. Otherwise, apart from damages facts in the traditional theories of the infringement behavior, infringement facts are expected to be one of the important elements in the case of civil liability of environment infringement. Because it is advantageous to prevent the occurrence of environmental damage, and it conforms to the prevention principle of environmental law. Meanwhile, the author thought that the damages facts are only the element of the damage compensate responsibility. At last, in causal relation aspect, there are many defects of traditional causal relation. So the paper introduces some new kinds of causality that is called causality cognizance, and it includes priority evidence, fact deduction, epidemic disease and indirect apagoge. Then some advices are put forward to improve our causal relation estimation rule.In the last part, two main forms of civil liability of environmental infringement are discussed, that is, infringement elimination and loss compensation, and giving some advices to improve their defects. First, our loss compensation is based on identified infringer and individual and specific liability. Because the characteristics of environmental tort include a long time, wide area and a large number of victim, huge number of compensation will make that many enterprises face with the destiny which goes out of business and the victim can't get the compensation. As a result, we must find a much more effective way, so the damage of compensate responsibility's socialization is proposed under this background. The paper analyze the rationality of the damage compensate liability. This includes three aspects which is the limitation of the damage compensate liability system, theory basis of socialization and practice basis. Then though constructing environmental insurance system and public compensation system, the paper propose the socialization of the damage compensate liability system, which provides relief for the victim more effectively, lightens the burden of the enterprise and promote the economic development. Second, infringement elimination is better than loss compensation in the function of preventing harm. However, in judicial practice, infringement elimination is facing many difficulties. It is essential to introduce the benefit weight principle. The injuried benefit's nature, content , degree and the infringement behavior's nature, degree should be considered in order to decide whether the infringement elimination should be used. At the same time, the infringement elimination should be refined, and it is necessary to establish middle elimination violation system. So the industrial benefit, social justice and public benefit are protected much more well.