On The Indirect Disproof Theory Of Causality Presumption

The causality in environment tort means the actions cause environment pollution or destruction and the separate, de facto cause and effect affiliation occurred among the damage that suffered by the specifically victims. The Environment tort case has the characteristics of chronicity, latency, complexity and universality, which decide the abnormal difficulty in determination of causality in environment tort. The conventional causality theory can't meet the demands of the damage compensation in Environment tort, so we have to find the new causality theory to support. For satisfying the social requirements, the western countries have enhanced victim protection power. Aim at every complication such as the attack and defend capability and distinctness of status among the parties in Environment tort field, several countries and areas start to break through the restriction of the conventional causality certification to seek a new way for causality certification. Under such instance, the causality presumption theory emerged as the time required. This article starts from one of the important theories in the causality presumption theory of environment tort--the indirect disproof theory. Based on the detailed analysis, this article expatiates the necessity of application such theory in China and the watchful problems in practice. This article including four parts:The first parts introduce the origin and development of the indirect disproof theory. This theory comes of German Civil Evidence Act, which is found by Professor Rosen Baker, a famous German academician. His original intention is to solve the deficiency of excessive dependence on law form normative theory, and the indirect disproof theory is a complementarily and correction for criterion theory. The first time application in the environment torts was in the judgment of Niigata Minamata disease in Japan. After that, Japanese academicians inherit and carry forward this theory and made it a world widely used method in cognizance causality of environment torts.The second part analyzes the advanced theory about the cognizance of causality of environment tort that used in the word, especially in Japan, which including preponderance of evidence, factual presumption theory, epidemiology causality theory and presumption theory. These theories overcome the shortage of traditional causality theory at some extent, which in favor of protecting victims, realizing the fairness and justice of law, and also in favor of the further development in causality of environment tort. But they are not perfect, all of them have shortcomings. Based on the analysis of four theories above, this article summaries the characteristics of the indirect disproof theory. Such theory is formed based on the fundamental of causality understand and guided by the fairness and justice. It also focuses on lightening the onus probandi for victims.The third part estimates the indirect disproof theory from both positive and negative sides. This theory that adopts the indirect disproof methods does not require the plaintiff to prove fact of every phase and the course, but need the plaintiff to prove the existence of some fact and course. According to the experience principle, the existence of the rest fact and course can be cognized. It is in favor of protecting the legal rights and interests of victim in the environment tort, and avoiding the agnosticism that caused by overemphasize the indirect causality as well as the situation that the causality becomes the man-made obstacle for cracking down on inflictering and protecting victim. However, the indirect disproof theory also has several shortcomings, such as: the several essential criterions it possesses may causing chaos in justice application; the presumption of existence for the rest of facts that based on experience principle lacks of scientificalness; the increased burden of proof for enterprise blocks its development; and the possibility of leading justice corruption.The last part demonstrates the necessity and feasibility of adopting the indirect disproof theory into chinese environment tort. This part also brings forward some watchful questions when applying this theory in practice, which including: regarding the indirect disproof theory and the inverted burden of proof theory; choose the adaptive causality presumption theory based on the different type of environment tort; unit essential standards of the indirect disproof theory to avoid the chaos in justice adoption; regard eliminating other probabilities in damage fact and polluted behavior; regard balancing the interests between inflicter and victim as well as adapting the goal of preventing environment pollution as the ultimately target for the adaptation of this theory.