On The Exclusion Of Infringement In Environmental Civil Proceedings

With the worldwide problem of pollution and damage to the environment of the highlights of environmental violations and the legal remedies have been countries of concern to academics and the judiciary, and the formation of their own environmental tort theory and the judicial system, but how to make effective for victims of relief, is the legislative, judicial and academic community are working hard to explore this important issue.National legislation the provisions of major environmental tort of civil relief, including damages and exclusion of liability against the two. Damages have been mainly due to the damage caused to fill, is a kind of indirect compensation, ex post facto way of relief. Rule out the possibility of harm is a positive prevention of environmental damage liability, which can play a proactive role. Damages and the environment is different, as against the request to exclude the Court once recognized, often may affect the retention or abolition of polluting enterprises, when the enterprise has a high social and public nature, does acknowledge the request to stop abuse is often the need for the court the interests of a comprehensive measure, it is based on the above issues, is generally believed that the request to exclude recognized hazard conditions than the authorized compensation for the loss of much more stringent conditions.Against the standards that rule out the possibility, scholars and judges believe that, in principle, ruled out against the criteria of strict standards on compensation for the loss. Due to exclude businesses could harm the interests of huge losses, and even the impact of socio-economic development, therefore, the judge on whether or not authorized to exclude the interests of the request against the measure, but so far has not been the interest of the formation of a unified standard.The exclusion of infringement in environmental civil proceedings is a kind of positive method of liability to protect environment. But the legal grands of the exclusion of infringement are not totally same in different cuntries because of the different traditions of civil law. Scholars and judges hold the view that the criterion of ascertaining the exclution of infringement should be more strict in principle than the one of compesation for loss.It is very possible for enterprises to suffer losses for the exclusion of infringement, therefore the judge need to take all factors into consideration to decide if the request of the exclusion of infringement can be confirmed , but the criterion of banlance has not been set up yet. In Japan ,environmental procedure law is very advanced both in theory and practice ,especially in the trial of the request to cease the infringing act , which can be used for reference in China. The Chinese mode of environmental disputes and the method or the criterion of the exclusion of infringement in trial are very different from the Japanese ones. The comparison and analysis of the differeces between two cauntries are of value for reference to us.