Environmental Tort Litigation The Burden Of Proof Allocation

Environmental tort is different form common tortuous acts;its specialty lies in the complexity of the burden of proof.As a result,the study in this area is of great significance in protecting the legitimate rights and interests of citizens,and maintaining the improvement of the legal system.This paper is aimed to explore the basic theory of the burden of proof and environmental tort as well as the current legislation in China based on foreign theories.Meanwhile,some suggestions are made on improvement of the distribution system of relevant burden of proof.Generally speaking,the burden of proof on injurious behavior and damage as well as common causation between them should be shouldered by the plaintiff,while the burden of proof on causation and exempting the responsibility matter should be shouldered by the defendant.As a special tort,the environmental tort refers to environmental pollution and damage caused by industries,leading to personal injury,loss of property and damage to environmental rights.Burden of proof for the injurious act,including risks of damage should be shouldered by the plaintiff.In addition,proof of certain indirect damage and risks of damage may adopt different criteria from that of direct damage and existed damage.Common people's cognition is suggested here as the standard of measuring damage on environmental rights.Last but not the least,since traditional rules cannot meet realistic demands,the peculiarity of environmental tort requires new proofing rules and various causation theories arise,providing effective theoretical basis.However,as every theory has virtues and shortcomings,we need to refer to foreign theories and improve our own distribution system of burden of proof of environmental tort.