Research On The Relief Of Environment Tort

As the rapid developing of China's economy, various environmental problems have become more and more serious. It should not be overlooked. It is worth for us to think of the infringement cases and contradiction resulting from the environmental pollution. And at the same time, we should also pay more attention to the social problems produced by the environmental problems. This paper aims at environmental tort analysis of the status of relief mechanism, combined with the foreign environmental analysis of tort relief mechanisms, to identify the inherent flaws of relief mechanism and its causes in order to improve our environmental tort relief mechanisms targeted proposal. Besides the introduction and conclusion, it is divided into the following four parts:Part I, overview of the environmental tort relief mechanism of China. Environmental tort as a new tort, compared with the traditional tort has its own unique characteristics. This part firstly definite the concept of environmental tort, and at the same time point out the composition elements of the environment infringement. The environment infringement actions must include environmental pollution, the objective damage fact. It has a causal relationship between the environmental pollution fact and the damage behavior fact. Both Civil and Environmental law and other related law contain the law about the environment tort remedies. Environmental tort victims are easy to become the body of the environmental tort. Then this paper elaborates the meaning of environmental tort relief mechanism introducing the main contents of environmental tort and its remedies, ways. In the existing legal system, the means and ways of China's environmental tort relief are wide, including the civil remedies, administrative remedies and criminal remedies. Environmental civil remedies have the way that includes stopping the infringement, eliminating prejudice, eliminating risk, restitution and damages. Administrative relief mainly deals with the request to the administrative. Criminal law provides the infringer's civil liability on the basis of the person who also needs to undertake the criminal infringement. This part is the basis of the full paper for the next argument.Part II, comments and reference on foreign environmental tort relief mechanism. Western developed countries, the study of environmental tort law start earlier, so the theory and practice of environmental tort are relatively mature. Therefore, from China's national conditions, we learn to identify their merits through studying on the United States, Germany, Japan and other developed countries in the environmental tort relief system and comparing with the Chinese law system. U.S. law provides relief to the environment is mainly compensation for damages and against exclusion. Besides that it provides environmental liability insurance system to tend to the business'protection and environmental public interest litigation system in order to make ordinary citizens to participate in environmental protection. Infringement of the legislation on the environment in Japan is the most perfect. Its related systems around the public nuisance build a comprehensive system of environmental tort relief. In Germany, the way of the environmental civil remedies mainly includes compensation for damages and against exclusion. Generally, you can claim compensation for both material damage and for moral damage, but there are strict limitations. The remedies for the main rule violations include the against exclusion, to take preventive measures, instead compensation three types. French for neighbor against provided ways about the paying damages. And it also provides that a judge can issued an improved order and prohibition order. It is worth to mention that the French about the criminal system of damages, including penalties for environmental criminal cases definite mainly fined. The revelations to our national environmental Infringement from the foreign countries include the establishment of environmental tort liability insurance system, the financial guarantee system and perfect the ways and means of environmental tort relief.Part III, the defects and causes China's environmental tort remedies. China's environmental tort remedy's defects are both at the level of the existing system and inadequate legal provisions. Due to legal requirements are too abstract, cause free discretion, difficult to form a unified criteria; From the Civil Protection Act to the environment, they have specifically related legal requirements, but they are lack of coordination between each other, even contradictory; and compared to the foreign citizens involved in environmental protection system, China's legal provisions are lack of public interest litigation system to protect the environment. And then on the basis of introducing the environmental tort relief mechanism defects, in-depth analysis of the reasons for various aspects of its formation, the main reasons include historical reasons and the legal system. Existing "Environmental Protection Law" is established at the beginning of China Reform, awareness for environmental protection. Its legislative purpose, policy setting, institutional arrangements can not embody sustainable development requirement.Part IV, improving environmental tort relief Mechanism. Environmental pollution and ecological damage is becoming more serious and make us wake. Through the above analysis, from a practical point of view, discuss the need and feasibility of improving environmental tort relief mechanisms. By comparison and reference for the current shortage of law, in legislation the author proposes some environmental tort relief suggestions to improve the environmental tort relief, which include modifying the provisions of the Civil Code 124; at the level of the Basic Law to determine the environmental tort of no-fault return responsibility principle; both environmental tort victims and business interests, in the interests of balance between seeking the establishment of China's environmental tort liability insurance system; Appropriate expansion of environmental tort litigation in the plaintiffs qualifications, establish the public interest environmental tort litigation system, thereby increasing the intensity and scope of environmental protection; more important is the establishment of China's environmental law tort remedies, effective integration of Civil, Criminal and other basic legal and Environmental Protection Law, Water Pollution Control Act and special laws on environmental tort law, establish our country's environmental tort Relief Act to form a system, a complete legal system for environmental tort relief.As a developing country, China faces economic development and the dual task of protecting the environment. Since China's environmental law research rather late, in many ways it remains to be further research and development. Environmental tort relief system has been established and initial development, but generally speaking, it is not mature and perfect. The main performance in the environmental tort relief system is, on the level of the Basic Law, the lack of relevant laws and regulations; Civil Law is lack of the specific relief system after the environmental violations. Therefore, the revision civil law, the development of China's Civil Code is the inevitable trend of social development and it is also the necessary requirements to protect our environment and achieve our economic and social harmonious development. As the environmental consequences of infringement with seriousness, not restorative, environmental violations occurred, and although the relief system through environmental tort to compensate the victim's loss, however, environmental tort for damage to the environment we live is serious, even can not be restored. So, instead of the relief afterwards to protect the interests of the victim's environment, to achieve environmental protection, it is better to establish a preventive mechanism, elimination of environmental violations in the bud, from the source to protect our environment. Improving the environmental tort relief mechanism need to change the concept, combining the subsequent relief and prevention of pre-integrated, truly achieve the law of the environmental protection.