A Comparative Study On Environment Tort Liability Between China And Korea

Environmental tort liability as a special tort problem, is the problem that is required urgently to solve in today’s society. Environmental damage compensation dispute is also becoming a hot and difficult problem in the trial. Since the80’s, our country has begun to pay attention to the problem of environment tort liability. From1982" constitutional" to2009" law of tort liability of environmental tort liability", liability for environmental tort has been developed and perfected continuously. But because" tort liability law" promulgated not long ago, the actual operation has many loopholes, and in practice there are many problems. Study of Korea environmental tort is earlier than our country, laws and regulations, the doctrine and jurisprudence together formed a relatively complete system of environmental tort liability law. The contaminated person protection also has a very good practice experience. In this paper, through the comparison of China and Korea to introduce Korean environmental tort liability system, and hope that through the comparison between China and Korea environmental tort liability system to explore the method perfect Chinese environmental tort liability system.This article mainly introduced Korean environmental tort liability from the three aspects. Firstly, the article introduced China’s environmental tort liability. The basic content includes concept, the imputation principles, constitutive requirements, application of limitation of action. China’s environmental tort liability principles adopted strict liability, the liability without fault. Liability for environmental tort applicable principle of inversion of burden of proof, and in China’s tort law it belongs to the special tort liability, so the application of special limitation of action. Secondly, the article introduced Korea about environmental tort liability. Basic content includes the concept, characteristic, the principle of imputation, constitutive requirements, and the limitation of action. South Korea from the seventies begins to pay close attention to the environment problem of tort liability. Since1963the formulation of" pollution prevention law" since, it mainly in the wrongful act law, property law, public law as the basis and combined with the related theory and case to solve environmental pollution dispute. Finally, based on the China and South Korea environmental tort liability system comparison research, the article analyses the system advantages and disadvantages, and put forward our country to draw lessons from Korea’s environmental tort liability system of regulations to improve our environmental tort liability law legislation.First of all, in the basis of comparative analysis of Chinese and Korean environmental tort responsibility imputation, the article put forward that China should have physical environmental pollution regulation the principle of fault liability. To a certain extent limited by the pollution in environment tort liability position, giving the pollution degree of protection to ensure social justice issues in the application of fault liability; in the fault liability principle, we should draw lessons from Korea, this is conducive to the protection of the inferior position of the polluted; in the environmental tort liability, there should be a single set of illegality, and draw lessons from Korea illegality in the limits’judgment criteria to improve the constitution theory; in the causation presumption, Chinese use the special burden of proof methods, named the inversion of burden of proof, Korea is new to probability and probability theory to guide the causal relationship.Secondly, in the light of the responsibility of compensation for damage caused by a number of pollution, our country should draw lessons from Korea’s liability principle. When Contaminated proved that the pollution of behavior and the harm result relationship, the pollution assume responsibility. If pollution can prove that there is no causal relationship between his act and the harmful consequences, they can be exempted. While polluters justify their behavior and damage is causality, only part of responsibility. In the case that they do not meet the above conditions, responding to damage, they should assume joint responsibility for compensation.Again, the article has a comparative study about the environmental tort liability exemption conditions and mitigated excuses. Our country should draw lessons from Korea to apply than preventing duty more stringent foresee the possibility as due to irresistible natural disasters without liability subject, which is more conducive to protect environment and pollution of stakeholders. For the damage which is caused by natural disaster should also be provided the corresponding diminished responsibility, while it should be in proportion to avoid natural disasters led part. In this way, the polluted can receive favorable relief; in the environmental tort liability, we should draw lessons from Korea’s forbidden request right system to perfect our country from nuisance bear system.Finally, a comparative analysis between China and South Korea in the judicial practice of environmental tort relief was made. Our country should draw lessons from Korea about environmental dispute mediation committee of mediation system, to perfect the mechanism of the environmental dispute resolution is insufficient. In the lawsuit relief way, we should draw lessons from South Korea banned claim litigation system to improve the discharge of disturbing litigation remedy defects; in compensation litigation, we should draw lessons from Korea’s security system to improve our environmental tort damage compensation implementation difficult problem. In addition, in the application of limitation of action, we should draw lessons from Korea related the provisions on limitation of action:’It is3years since the contaminated had known that they were damaged or they had known about the offender, from tort date of10years.’So as to protect the rights and interests of pollution better, while urging the contaminated persons exercise their litigation rights within the statutory time limit.