China's Environmental Tort Liability System

As we attach more and more importance to the environmental protection, a new kind of right comes into being----the Environmental right. From the agricultural society to the industrial society and then the information society nowadays, our method of production has gone through earth-shaking changes which had varying effects on the environment. The environmental problems caused by these effects have become a puzzle for us. The huge loss caused by the environmental disasters as "Hurricane Katrina" and "Indian Ocean tsunami" has give us admonitions: if environmental deterioration can not be controlled, and if people do not take environmental protection seriously, sustainable development would become a fantasy! At the crucial stage of development, the law should play an important part in Environment protection. "A Right without Remedy is not a right." It's urgent to provide remedy to the Environmental right. The civil liability system of Environmental tort, the criminal liability system of environmental tort and the administrative liability system of environmental tort make up the legal remedy system of environment. The civil liability system of environmental tort, which is close to our everyday life, takes an important position in the environment remedy. So it is of significant importance to study the civil liability system of environmental tort. First, it can provide theoretic support for building a better civil liability system of environmental tort. Second, it can provide solid civil law system for resolving environmental problems. Third, it is advantageous to perfect the law system itself. Finally, it can arouse the people's awareness of environmental protection.This essay is divided into four parts besides the introduction and the conclusion。I will elaborate my research results step by step.The first part reveals the development process of the environmental concept by studying the theories of environmental right. From the "Anthropocentrism" to the "Animatism", every renewal of environmental concept makes the Environment right more scientific and meaningful. The Environmental right is an open system which matures gradually along with the progress of society civilization. Since the《Declaration on the Human Environment》announced environmental right for the first time, the constitutions of different countries have expressed the idea of environmental protection. Some nations even enact environmental legislations to give citizens the litigation subject qualification in environment protection, which makes the environmental right well developed and concrete through the judicial practice. In recent years, our government has regarded the environmental protection as a national development strategy; meanwhile, the scholars launch a hot debate on the Environment right. This paper claims that in the new historical condition, we should give the environmental right a new connotation, making it more concrete, and with time characteristics. The environmental right as one of the constitutional rights has got recognition in academic circles, but there has been hot debate on establishing environmental right a private right, especially a civil right. To make the environmental right more concrete and protect it better, we should establish environmental right a private right. The civil law of our country should make the environmental right an independent right. We should put it under the protection of the tort law and build a complete civil liability system of environment tort to guarantee its operation.The second part discusses the concepts, characters, categories and forms of environment tort. environment tort, as a kind of special tort has the following characters: (1) It brings along many victims; (2) It causes huge damage; (3) The damage is incubative, cumulative and long-lived; (4) The social practicality of the action in causal. In order to be a substantive right, the environmental right must be concrete and can be applied in everyday life. Environment tort happens now and then, more and more lawsuits over the environment tort would be filed with spreading of rightful consciousness. The speciality of the environment torts determined the speciality of civil liability system of environmental tort. To perfect the civil liability system of environmental tort, it is necessary to study the environment torts. Today, with the advance of science and technology, more and more new kinds of environment torts appear which could cause great damage. So, I would like to elaborate on their forms and the damage cause by them in order to heighten people's vigilance and attract attention from the law circle.The third part elaborate and analyze the concept, principles of attribution, constituent elements, causality ,and excuses for escaping responsibility of the civil liability of environment tort. Because environment tort is a kind of specific torts, so the civil liability of environment tort also has its particularities. Strict liability principle should be carried out. No meter the violator has fault or not, he will undertake the civil liability. And it has three constituent elements: First, a behavior of polluting the environment; Second, the harmful facts; Third, a causal link between the action of the environment tort and the harmful facts. And the constituent element of "illegal" is removed. We should believe that , there is a causal link between the action of the environment tort and the harmful facts, if the violator can't prove that this causal link does not exist. What's more we should restrict excuses for escaping responsibility. Only "the faults of victims" can help the violator to escaping liability.The fourth part discussed the current situation of the civil liability system of environment tort in our country, and put forward some advices about how to perfect the civil liability system of environment tort in our country by comparing to those in American and Japan. Any legal right needs a system guarantee, so we have to found and perfect the civil liability system of environmental tort. How to perfect the civil liability system of environment tort is the core that this text discusses. The current civil liability system of environment tort in our country exist a lot of limitation. And the present condition is hard to reply to the environment tort in the new circumstance. We should set out physically from our country, and draw lessons from the advanced experience of flourishing nation, build up perfect mental damage system of environment tort, the environmental compensation fund system, and environment liability insurance system. This will be advantageous to relieving damaged rights of the victims, also be advantageous to lighten the risk burden which add to the violator. It can also dissolve the huge environment disaster, promote the economy, and the environment .This part takes a comparative and analytical method to investigate how to perfect that system in our country, by introducing and analyzing those in American and Japan. The environment tort usually accompanies with huge metal pain and sufferings, only having explicit mental damage system of environment, then can carry out overall protection of the victim. But we have to carry on an appropriate restriction to the mental damage quantity, in order to prevent a metal benefit from being commercial. The environmental compensation fund system and the environment liability insurance system ,as the important mechanisms of the loss undertaken socialization, have already got a better usage in the western nation. And there is a very big development space in our country, too. If they work together, they can promote the function of civil liability system of environment tort in our country greatly. However, as the economic development of our country is not as good as that of flourishing nations, these systems can only provide a low level of safeguard. We will raise the level gradually, along with material wealth increasing continuously. Since the environmental protection consciousness and self-discipline of the citizen of our country are not strong enough, the government should help carry out these systems, so as to make the most of institutional functions. Of course, the perfection of the legal remedy system of environment tort, a hard project in our country, requires the scholars' diligent exploration, as well as the government's energetic support and everyone's concerted effort.