On The Legalization Of Personality Right Of The Environment

Along with the increasingly deteriorating environmental crisis,environment tort has also got worse in practice,which reveals that traditional administrative means is not sufficient to protect citizen's environmental right. So there is a pressing need to give full scope to the benefit actuation mechanism of private law.As one of the human rights,only when environmental right was made more concrete and recorded in private laws would its transformation be realized from natural right to realistic right.Because of the absence of concreteness of environmental right and neglect of the protection of environmental personality interest,there is no foundation of right of claim in environmental tort dispute and the basis for law protection in the protection of the right of action.Accordingly,I raise questions about legalization of environmental personality right.In this thesis, I investigate whether it is necessary and feasible to subsume environmental right into the law system of personality right.Also,I discuss how to design the system of environmental personality right and how to realize this right.The thesis has 5 parts.The first part give a introduction to environmental personality right through some typical cases in judicial practices.On the basis of analysing the system of environmental personality right,this thesis analyses necessity and feasibility of legalizing environmental personality right from the perspective of internal and external factors.The fourth part designs the system of environmental personality right,and the fifth part provides some proposals in the case of protection and relief of the right after realizing environmental personality right.I first bring forward the subject concerning legalization of environmental personality right through two cases in judicial practices.Both cases are well representative——one is the Songhua River Water Pollution Incident,the famous case in environmental law,by which I mainly illuminate the absence of the basis for law protection in the protection of the right of action in environmental lawsuit.The other is the Lawsuit Against Lead Pollution Brought by 800 Villagers in Anhui Province,a successful prosecution of case producing a great impact,by which I mainly analyse the lack of foundation of right of claim in environmental tort dispute.Studying these two cases,I conclude that the vacancy of environmental personality right can lead to the lack of protection for environment rights and interests in public or private law.And then the legalization of environmental personality right be discussed,especially the major theoretical problems.Interior factors about the legalization of environmental personality right are studied in the second part of the thesis.This part,from the aspect of ecological ethic and jurisprudence, describes that environmental personality is important for the survival and development of human,and it is urgent to legalize environmental personality at present.The environmental personality,as a token of human nature,is neglected by law in former environmental crisis era.In the face of the serious environmental crisis day by day,we need to raise the value of environmental personality.Besides,it is possible to give the right to environmental personality interest.According to the tolerance of civil law,the system of the personality law is open-ended,so the nature of environmental personality can be embraced by this sort of system.The third part mainly analyses the interior factors of the legalization of environmental personality right,and illustrates that it is not enough to depend on administrative method to resolve environmental problems.I believe that we should rely on the cooperation mechanism of public law and private law to tackle these problems.According to current status of environmental protection,this part assumes that the vacancy of environmental personality right leads to private law,as a interest-driven mechanism ,cannot play its full role in solving the problems,thus,environmental personality right cannot be replaced by the present system.Moreover,I study the protection of environmental personality right in foreign legislation and judicial practice.In many countries,such as America,Japan and Ukraine,the protection of environmental personality right has become a trend in legislation and being taken seriously. The fourth part designs the system of environmental personality right.The appropriateness of behaviour has set a higher threshold for the protection of right owner in environmental tort for many years,because right owner is forced into the duty of tolerance,which has a fuzzy boundary.To design environmental personality right system,we must first clearly define the border of the right.I determine the relations between environmental personality right and the rights of life and health,and note that what criterion should be followed by environmental personality right in private law practice.So,I believe that the general provisions be combined with enumeration mode to design environmental personality right,also,the abstract and general provisions of environmental personality right are discussed.Because it is difficult to define the boundary of environmental personality right,I divide the right into two right——the survival right and the development right.The fifth part focuses on the guarantee system of environmental personality right.No remedies,no rights.As one of personality rights,environmental right should be not only approved.As it is a new type of rights,there should be innovative right remedy manner.Environmental personality right provides a foundation of right of claim for environmental tort dispute.This is a revolution of system of tort.Because it is one of socialized private rights,we should make innovations in protection of environmental private right.I believe that it should be limited in the right transferring,and also I put forward some relevant suggestions.The object of the right,namely,the environmental resources,has public feature,and the environmental lawsuit has characteristics of public welfare naturally,therefore,in order to better protect the right,we ought to draw lessons from active system of public interest litigation to whip up public enthusiasm for participating in environmental protection.