Study Of Environmental Tort Relief Legal System

Environmental pollution and ecological damage have become the significant problem that mankind is faced with together, at the same time also become the important program that worldwide experts and scholars pay much attention to generally. People is discussing solutions to the environmental problems with economy, politics, administration, science and technology and ethics etc means, meanwhile, also begin to pay attention to the important role that legal means take in modern environmental crisis gradually. I have strong interest in environmental law. As being studying, I deeply feel that, environmental tort, as a kind of specific torts, people's understanding to it is insufficient, and the related legislation does not be perfected This thesis analyzes the environmental tort and its relieve system with the analysis methods of history, economy and systematization etc. And the author carries out relatively thorough research and analyses for legislation, legal precedents and the theory concerning environmental tort relieve system, and explains especially the administrative relieves and justice relieves in order to improve the weak point and hopes to try the meager strength best for the environmental legal construction of our country.This thesis is divided into four parts altogether besides the foreword and the conclusion.First part: It is a discussion of the basic theoretical question about the environmental tort. In studying relieves system of environmental tort, at first we must mention the theory of environmental right, which is the important theoreticalfoundation of this text The author considers that, environmental right is a kind of fundamental human rights that the environmental legal relation subject enjoys suitable, healthy and good living environment, and utilizes rationally the environmental resources. It is one of the new-type independent human rights, including the utilization of resources right, the right of being in know, policy-making power, the right of asking for mainly. In environmental tort theory, the author clarifies the concept, features, requisites to constitute an environmental tort, excuses for nonresponsibility mainly, and hold " second important document rule" in the definition of environmental tort. "Injurious act" is not one of the requisites to constitute an environmental tort, meanwhile force majeuer is not one of the excuses for nonresponsibility.Second part: The legal principle is investigated about the relieves the environmental tort. The author sets out from economic people theory of economics at first, and explains the economic reason why the environmental question produces , and then draws the economic thought that the country intervention. Secondly , the author discusses legal foundation of relieve of environmental tort from two angles: the right conflict needs remedy and socialization of civil law.The third part: It is introduction of the foreign relieves of the environmental tort. In this part, the author carry on further discussion about this legal theory and practice in Japan, Germany, France and some case law countries. There are many advanced method in these countries, for example, using the administrational relieves and justice relieves, injunction and damage, principle of interest balancing,partial injunction and damages in luie of injunction, public participation etc.The fourth part: It is the current situation and the perfection of the legal relief system of environmental tort in our country. The author introduces the legal basis at first, points out that the deficiency that exists on the system in the environment in our country's present constitution, civil law and administrative law, and then proposes several legal legislations: As a whole, the guidelines of the legal system in environment tort relieves should be under the idea of sustainable development and realize transforming from " the doctrine of human centre " into "the doctrine of ecological centre ";In concrete institutions, we construct from the two respects mainly: administrative relieves and justice relieves. In administrative relieves system, it includes the public participation and administrative disposal. In the public participation system, the author analyses the subject and the core of this system mainly, points out the lacks of the entity and procedural regulation, and draws lessons from the Canadian advanced method In the administrative disposal system, the treatment of our country is monotonous, we should make " environmental dispute disposal law " as soon as possible, set up special treatment organization, increase the way such as arbitration etc. Justice relieves includes environment public interest litigation, administration litigation and civil litigation. In environment public interest litigation system, the environmental administrative organ can be regarded as the plaintiff of the environmental lawsuit, and the procurator organ should be given the right of prosecuting in the environmental public service lawsuit, and the environmental protection corporation is animportant subject of bringing the environmental public service lawsuit, and citizen individual is the final enforcement person who has the right of the environmental public service lawsuit In administrative litigation, we should expand the prosecution subject of administrative litigation and scope of accepting cases. In the civil action, except structuring in details injunction and damages, the author also puts forward the suggestion for revision to the perfection of the system of relevant lawsuits, for example, environment common act definition, inverting the burden of proof of tort, presumption of causation and the perfection of litigation prescription system etc.