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Environmental Infringement Lawsuit Study Of Distribution Of Evidential Burden

Posted on:2014-02-13Degree:MasterType:Thesis
Country:ChinaCandidate:M C YangFull Text:PDF
GTID:2246330395491664Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The burden of proof deserves to be known as the "backbone of Civil Procedure”. How toallocate the burden of proof reasonably between the parties has a direct impact on the interestsof the parties and justice. Environmental tort, as a special tort, is different from the generaltort on the allocation of the burden of proof of the proceedings. However, the currentenvironmental legislation does not specify not only the burden of proof in infringementproceedings distribution, and existing regulations, there are many shortcomings However, thecurrent legislation does not specify not only the burden of proof in cases of environmentalinfringement, but there are also a lot of inadequacies in the existing regulations. Ourlegislation only puts forward the "reverse burden of proof" principle. This principle is in thelack of proof of causation standard, the risk of damage included damage to the facts, and ithas been unable to meet the diverse forms of environmental tort litigation. Based on thissituation, China is in urgent need of environmental tort liability distribution systemimprovements.The environmental tort burden of proof allocation issue is related to procedural law, tortlaw and environmental law, and this paper mainly discusses from the procedural lawperspective. The article first briefly introduces the basic theory of the environmental tortallocation of the burden of proof, which founds a solid theoretical basis for the article. Andthen, this article compares the theory and practice of the environmental tort burden of proofallocation in and outside China, and summarizes the deficiencies and defects of our countryon this issue. Afterwards the paper suggests that environmental tort burden of proofallocations should not adhere to the traditional principles, but should be combined with thespecific case and creates an open and flexible allocation system. Finally, the paper comes tothe conclusion that based on the fair and just legal concepts, combined with the special natureof the environmental tort litigation, considered the various relevant factors, the injured partybear the burden of proof on the infringement and the damage results. On causation, we shouldmake a distinction between responsibility establishment causality and responsibility scopecausality. For the burden of proof on the former, we should create a different standard of prooffor different subjects and use a variety of methods to identify causal relationship, victims toassume a relatively dominant probability proof. Meanwhile, proof to the latter should establish criteria of "foreseeability". Disclaimer is just a right to defense, the burden of proofby the infringer.
Keywords/Search Tags:Environmental Tort, The burden of proof, The allocation of theburden of proof, The imputation principle
PDF Full Text Request
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