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The Causality In Environmental Tort

Posted on:2009-03-08Degree:MasterType:Thesis
Country:ChinaCandidate:Y L YangFull Text:PDF
GTID:2166360272973579Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Causation is the necessary condition in the forming of responsibility for tort since Roman law. However, until now we still have no objective criteria on which can we fairly judge the establishment or interruption of causation in fact and in law. Meanwhile owing to the characters of complexity and etc. of cases of environmental tort, it is extraordinary difficult to establish the causation in environmental tort. Because the traditional theories of causation have difficult in satisfying the need of compensation of environmental tort, so it is necessary for us to find a new theory to support the needs. There is still no considered judgment standard about causation of tort in world of scholarship although our study on causation of tort has achieved great progress in recent years. The paper attempts to establish a scientific rules system by which causation of environment tort can be verified through analyses the causation in environmental tort,relevant theory and practice of other countries and the actual conditions of China's legislature and judiciary. The paper hope this research is benefit for solving our country's environment problem,the achievement of the environmental policy's goal and the protection of victims. The article divides into the following four parts besides the introduction:The first part has inspected the main theories of the causation of environment tort, and divided these theories into three categories including using the probability to recognize the causation, applying epidemiology to deduce the causation and judging the causation by the empirical rules for research. The theories which use the probability to recognize the causation mainly include preponderance of evidence and factual presumption theory. These theories insisted taking the evidence having high probability (i.e. surpassed 50% conditions) as the basis for the determination of causation. The theories which apply epidemiology to deduce the causation mainly include causation of epidemiology and individual causation theory. These theories introduce the epidemiology concept into the recognition of the causation of environment tort and apply the relevant knowledge about epidemiology to inspect the causal relationship between acts of victimization and the hurt of victims. The theories which judging the causation by the empirical rules mainly include indirect disproof theory and general presumption theory. Empirical rules play a very important role in these theories. The second part has analyzed and appraised these theories. These theories of the causation of environment tort have different features, but they also have many common grounds, all of them take fair,justice as the main value-oriented, take the causality presumption principle as the foundation, pay great attention to reduce victim's onus, take the low probability as the judgment standard, and lowered the causation's proof standard suitably. They have overcome the insufficiency of tradition causation theory to a certain extent. They are advantageous in the protection of victim and make the justice and the fair value of the law realized in a higher level. They are also benefit for the protection of environment, improving environmental conditions and the progress of the theory of causation in environment tort. But all these theories are not complete scientific, they also have defects which can not be ignored, such as each theory's applicable scope is quite narrow, the high requirement of judges, needs the legal precedent to support and so on.The third part has introduced the practice of the theory of the causation in environment tort in our country. We should establish the rules of validation about environmental tort on the basis of our basic circumstances; otherwise the rules of validation will not be fit for our country. After new China was established, because of Soviet Union's influence, our country inherited the Soviet Union's theory of causation, making the inevitable causal relationship theory as the authoritative theory. However, due to the particularity of environmental tort, the traditional causation theory is not fit for environmental tort anymore, so, the theory of correspondious causality attract the scholar's attention and eventually become China's authoritative theory. The evolution of the causation theory about environmental tort has influenced our country's related legislation; it has abandoned the traditional inevitable causal relation theory and applied the theory of correspondious causality. But our country's legislation about validation of causation in environment tort is very simple and the legislative content is single. In recent years, environment's rule of law in our country has made an unprecedented progress, but the judicial relief of environment tort dispute is very weak in our country. The justice practice is very confused, because the rules of validation of causation about environment tort are not uniform.The fourth part has constructed a rule of validation system of causation about environment tort from the macroscopic, the intermediate perspective and the microscopic three levels. On the macroscopic, make the justice, order and efficiency as the value of the pursuit for the rule of validation. In the intermediate perspective, take the correspondious causality as the foundation, take the causality presumption as the basic principle, and follows the lower probability standard of proof. On the microscopic, set apart the factual causation and the legal causation by the method of one-divides-into-two way, divides two steps to solves the question about validation of causation in environment tort, that is, built"a horizontal and a vertical"type which contains a variety of Standards and methods of the rule of validation system of causation about environment tort. The"horizontal"means setting different criteria between the single causation of environment tort, complex causation of environment tort and other kind of environment tort. The"vertical"means validating the causation of any kind of environment tort should divide the causation into factual causation and legal causation two levels to carry on.
Keywords/Search Tags:Environment tort, Causality, Validation of causation, Rules of validation
PDF Full Text Request
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