Determination Of Causality In Environmental Tort

With economic and social development, environmental pollution and ecologicaldestruction problem becomes more and more serious along with the advancement ofindustrialization and urbanization, which causes that the environmental tortphenomenon becomes one of the social problems of the countries all over the world.As one of the main ways of environment tort relief, the judicial relief plays animportant part in the world environmental protection and the lawful rightsmaintenance.Since causality is one of the necessary elements of tort liability, which hasseveral functions such as determining the principal part of the responsibility, settinga limit of the range of the responsibility, achieving the balance among individualcalmness, individual freedom and social avail, establishing theoretical framework forthe laws’ unified application, the cognizance of causation in environmental tort isundoubtedly the key factor of environmental tort liability.The cognizance of causation in tort law has been a difficult problem in civil lawcircles, and the causal relationship between the environment infringement is morecomplicated than others. The particularity of the environment infringement makesthe determination of causation in environmental tort an abnormally difficultyproblem. It’s difficult to determine the causal relationship in environmental tortthrough the traditional theory of causal relationship in civil tort. Causalitypresumption through the theories of probability, experiential rule and epidemic isbenefit for protecting the victim and realizing the value of justice, but the theoriesabove still have problems such as the narrow scope of applicability, the highrequirement of the judge’s quality and the need of support of other cases. Theenvironmental cases are so complicated and various that they need diversified oreven combinatorial methods of presumption of causality in order to determine therelated intensity between environmental damage behavior and damagingconsequence. As the complexity of interests and the uncertainty of science and technology involved in environmental infringement problems constantly enhanced,the determination of causation in environmental tort will be confronted with newchallenges and difficulties.This article explores the particularity of environment infringement andcausation in environmental tort, the analysis of the theories on determination ofcausation in environmental tort at home and abroad, such as "Preponderance ofEvidence","estimated for the time being","the epidemic disease study causes andeffects said","the indirect reduction to absurdity" and so on, and also according toour country’s development and present situation of the theory and judicial practice ondetermination of causation in environmental tort,attempting to suggest a judgmentcriterion system, which covers all kinds of judgment standards and methods, todetermine the existence of causation. It should take justice, order and efficiency asthe main value target, causality as the base, causation presumption for the principle,and follow a lower probability standards of proof on macroscopic, while with theconstruction of "One Horizontal and One Vertical Model" on microscopic.A relative standard of certainty as long as openness are involved in thejudgment criterion system which is suggested here to determine the causation inenvironmental tort. The certainty is generally reflected by the united form of thewhole elements below, such as laws and regulations, value, legal philosophy andjudicial technology (forensic science, etc.).Openness is embodied by that it is readyto mix and absorb all of the new elements with significance and reference of the twoimportant law systems which will bring benefit to the determination of the causalrelationship in environmental tort. Researches on the localization of the judgmentcriterion system of the causal relationship are explored in the process oftransplantation. Because it’s just a coincidence that the laws and regulations whichare formulated for its own country can be suitable for another country. Thelocalization is rely on deep cultural support and the acknowledgement on the level ofconsciousness.It is essential to explore the issue on establishing theoretical framework fordetermination of causation in environmental tort, not only for the improvement ofthe causal relationship theory with its theoretical significance and practical value, but also provide a reference for the relief of the environmental tort by private law to finda new way out!...