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Research Of Environmental Civil Tort Litigation Proof Responsibility Distribution

Posted on:2013-06-22Degree:MasterType:Thesis
Country:ChinaCandidate:Y N HanFull Text:PDF
GTID:2246330371489973Subject:Procedural Law
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With the development of economy, the progress of the society, the environment infringement in ourcountry is also showing a rising trend, while the environmental tort is a special civil tort behavior, thelitigation process how to correct the reasonable allocation between both parties on the burden of proof, andeffectively protect the legitimate rights and interests of victims is a crucial question, therefore, in the fieldof analysis and research has important significance. This article first from a specific environmental tort civillitigation case proceed with, pointed out that this special tort cases, the victim for the ordinary people,because of the objective conditions of the restrictions, evidence exists to a large extent the difficulties, andbecause some damage was not then appear, need to go through a long term accumulation process, thus,more increased evidence of difficulty, therefore, in the legislation and judicial practice in the process, weshould pay attention to in the related fields of both parties between the rational allocation of the burden ofproof. After the simple introduction in general civil litigation concerning the distribution of burden of prooftheory, expounds the definition and nature of the burden of proof, the proof responsibility is also presentevidence responsibility, including the subjective burden of proof and the objective burden of proof on twoaspects, the definition of its nature, also there are different theories, the main has the right to say,obligations, the losing risk burden said. The distribution of burden of proof theory, the Anglo-American lawsystem and continental law system exist different points of view, the Anglo-American law system mainlyhas the positive fact said, V. Chi pleaded that, must be truth and particularly aware of that, compared withthe common law that pay more attention to case fair essence of civil law standard, the importance of theintegration method and the application of predictability, and legal factors and the fact in two kinds ofopinions.Next to the key part of the article, discussion and analysis in environmental tort litigation of burden ofproof on the assignment problem, detailed introduced Japan, Germany, the United States and othercountries in the related fields of research, Japan relevant proof of causation presumption method, worldattention, such as the wooden town proposed by Professor high probability causal relation theory, and Katoproposed by Professor of presumption of fact, in the treatment of evidence level, both adhere to the high probability of evidence to determine the facts of the case as a causal relationship exists basis, thus beingreferred to as a" high degree of probability theory". Because of environmental tort are mostly on the humanbody and life health threat, so some scholars propose using epidemiology (i.e. epidemiology or etiology)method to prove infringement behavior and damage causal relationship exists between, also known as"epidemiology causality theory", and" indirect say" and Ishida rang professor " interest measurement.".While Germany as a civil law country, its theory is main staples "danger area " and tile henndorf "damagesattribution said," so-called dangerous areas of said, is the case of the fact in which one party control of therisk areas as the standard, to determine therefrom the burden of proof distribution, and damage attributionsaid that in the judicial practice, should adopt the essence of values between the parties for the distributionof burden of proof, that is the spirit of the outcome of litigation can achieve equity and justice to thespecific distribution. The United States is widely used is" the fact from the evidence theory" causalityprinciple of distribution, its main content is: when the parties to prove a causal relationship between thepresence or absence of the proof does not require strict scientific methods to prove, only reaches somedegree of probability, can be presumed to exist on the law of causality.Then returned to China actual, to our country the development course of environmental tort litigation,legislation current situation and the existing problems of carding and concluded, the main emphasis of ourcountry because of the lag of the system of environmental tort litigation, and the existence of manyproblems, such as not fully take into account environmental tort case specificity, leading to on theprotection of the interests of victims, there are some deficiencies, secondly, the causation that the lack ofstandards, the causality of the standard is not unified; at the same time also will not damage risk into factsof damage in the category, in modern society, on the basis of the existing scientific and technological level,for many of the acts of environmental pollution is lead to future damages are foreseeable, so, for somepotential environmental tort victims, in specific violations has not yet occurred, have the opportunity to askcause harm enterprises to take timely measures, in order to avoid the harm consequence, nip in the bud, but,in our legal provisions, but can not find the relevant provisions. Based on the comprehensive analysis, atlast, at home and abroad on the basis of theoretical research, the environment right infringement civillitigation on the distribution of burden of proof to put forward some suggestions, put forward clearly inenvironmental tort lawsuit proof responsibility distribution should follow the principle of fairness and justice, i.e., balance of interests, principle of litigation economy, at the same time, from the environmentaltort, damage fact, causality, rule four angle set out, put forward compose to build our countryenvironmental civil lawsuit proof responsibility distribution framework, we hope to the fields related tosystem development can contribute.
Keywords/Search Tags:Environmental tort, The burden of proof, The allocation of the burden of proof, Principleof imputation
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