| The measureless substance tort is a act about environment. This article researches every element of this special tort, then it calls to found the system of measureless substance tort. The article, constituted by 45,000 words is divided into five chapters. In the first chapter, the author summarizes the system of measureless substance tort. In fact, measureless substance is a thing emitted into the environment and measureless substance tort is a act harming people or their property when inflicter emits the measureless substance into the environment. Different from other tort, measureless substance tort is within the law as long as its harm is controlled in some degree. The second chapter presents the cases in other countries about legislation on measureless substance tort. In German, Immission in the Civil Case supervises emission measureless substance. It provides the claim of right in rem. At the same time, Emission Control Regulation has a similar effect. However, it provides the claim of creditor's right. French use other way to supervise emission measureless substance. They treat the emission as a tort and the inflicter bears no-fault liability. Japan has perfect law on emission control. It treats emission as tort, too. But only those emission beyond tolerance are true tort. While in America, nuisance is used in the same occasion. Through the summary The author concludes that all the countries emphasize the balancing interest and some flexible methods are used widely when the inflicter bears liability. In the third chapter, the author analyzes the reason why foundation system of measureless substance is needed and its feasibility. There are three reasons. Firstly, measureless substance tort is becoming a major factor doing harm to people. Secondly, right should be protected at any time. Thirdly, the system nowadays can't protect right well. The system of neighbourhood and the system of environment tort both have their innate defects when they face measureless substance tort. The feasibility embodiments in three ways. Firstly, claim of the right in rem works worse than claim of the creditor's right. Secondly, the theory in environment tort can be introduced into the new system. Thirdly, the theory of balancing interest can work well in the system of measureless substance tort. In the fourth chapter, the author analyzes the orientation of the new system. First of all, the orientation should can protect the victim, embitter the inflicter properly and protect the environment. Then, the author concludes that emission measureless substance is a kind of tort and it is parallel to environment tort. In the fifth chapter, the author draws a conclusion on how to work when the system founded. Firstly, fault-assumed liability is widely used in the system of measureless substance tort. But when the tort does harm to people, no-fault liability works. Secondly, fault in the system is considered as the act against obligation. Thirdly, illegality is estimated by tolerance of common people. Fourthly, causality is same with environment tort. Fifthly, the harm in the system concludes the harm and the damage in environment tort. Then, there are two ways to bear liability, injunction and compensation. The theory of balancing interest works well in the judgment of injunction. For working better, introducing other ways similar to injunction is recommended. The author analyzes whether exemplary damages can be introduced. Exemplary damages is opposite to the basic principle of the civil law and this introducing can't work well in China. Then, the author mentions the liability distribution when harm is produced by two parts without fault together. At the end of the article, the author makes some suggestions on prevent measureless substance tort.The innovation of the article is embodied in two ways: Firstly, to protect right connected with environment, the author advices to found a new system and plans its inner configuration through a deep research. While other researches wander in limited system, which can't solve the proble... |
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