Legal Consideration On The Mode Of Chinese Environmental Pollution Liability Insurance

As environmental pollution accident constantly emerging, how to deal with the global environmental crisis is the major issue faced by several countries in the process of economic development. The generation and development of environmental tort theory and liability insurance theory have made environmental pollution liability insurance be the important measures of alternative compensation and social relief of environmental tort. Compared with the western countries’mature environmental pollution liability insurance, China is still in the early stages of complex engineering: The parties’acceptance of insurance isn’t in high degree, insurance function couldn’t play, and insurance system has not yet been set up. The mode selection of environmental pollution liability insurance, the first step to establish and perfect the environment pollution liability insurance system, is of vital significance for realizing the function of the insurance.Analyzing from the angle of legal mandatory, environmental pollution liability insurance modes can be divided into compulsory mode and voluntary mode. Subject to legal and cultural environment pollution liability risks, the enforcement of environmental pollution liability insurance pattern is not of the same. But the essence is the combination of two modes, with the compulsory insurance mode as the main development trend while voluntary insurance mode as supplementary. According to polices, current situation of legislation and pilot exploration of the environmental pollution liability insurance in China, our country take the voluntary insurance mainly, with compulsory insurance as a supplement to the environmental pollution liability insurance mode. In the current mode, the insurer and the insured for the categories is not so active, prevention and control of pollution do not effect, and the insurance’s function to protect the interests of victims doesn’t maximize. The restrict factors of these problems mainly include:Environmental pollution liability insurance in China has legislative blank, temporarily lacking legal protection for mandatory implementation; Environmental pollution liability risk itself has pollution facts of uncertainty and causation of difficulty, which greatly affects the liability risk insurability; Insurance legal relationship parties, especially the insurer and the insured for the pursuit of self-interest maximization, cause interest conflict and imbalanced; The underdeveloped insurance and the unsound market mechanism widely prevent the popularization of environmental pollution liability insurance.Compulsory insurance mode and voluntary insurance model are quite different in theoretical basis, purpose and cost, moral risk and adverse selection and so on. The best choice of the environmental pollution liability insurance mode is to realize the advantages of the two models, and to highlight the role of compulsory insurance mode. Environmental pollution liability insurance in China should draw lessons from foreign experience of other developed countries on the basis of governmental guiding, market leading, and following the principle of gradual and orderly progress. It should establish the select tone of taking compulsory insurance mainly, with voluntary insurance as a supplement to the environmental pollution liability insurance mode. Chinese environmental pollution liability insurance mode should be formulated by establishment of a complete legislation structure, with detail contains of scope; accept insurance agency, insurance premium rates, and constraint and incentive means of the two kinds of modes. Meanwhile, it is auxiliary to support Chinese environmental pollution liability insurance mode on effective operation, including the supplementary mechanism of public insurance guarantee fund, assessment and dispersion mechanism of environmental pollution liability risk. Thus the socialization of environmental tort relief can be realized, and economic society and environmental protection can be promoted in sustainable development.