Identification Of The Causality In Environmental Tort Liability

Causality is an abstract question that has baffled numerous mathematicians and judges, especially in environment tort liability. Due to the establishment of principle of liability without fault, causality turns to be the key factor of whether it is available to ascertain the polluter’s tort act. However, how to recognize the causality between pollution behavior and tort fact is a rather complicated and tough question. Except for the intricacy of environment tort case, helpfulness of cause of environment tort behavior and high tech of litigation evidence etc, cause the causality of environment tort liability hard to be found, proved and recognized. China’s legislation has clearly stipulated that principle of conversion of burden of proof is implemented in the proof of causality of environmental tort liability, but it is only applicable to risk transfer in case of failure on burden of proof, and no express provision has been issued in accordance with specific method of causality recognition. Due to vacuum in legislation, in respect of the methods of causality recognition, some local courts apply necessary causality theory, some apply principle of conversion of burden of proof, some apply correspondence of causality and some innovators even apply the presumption of causality. Each of these theories has their reasonable proportions, but due to chaos in judicial situation, it is inevitable to witness dissimilar verdicts in the same kind case, which does not only go against the tenet of protecting the victim’s legal right, but also damages judicial unity and authority.Problems exposed in China’s legislation and judiciary force us to shift our focus to Japan who is suffering the same environmental pollution and damage so as to look for solutions. Japan is taken as object of study, because it finds the compromising handling method to deal with environment tort cases on the premises of lack in normative causality recognition. Especially in dealing with the most typical Japan’s four big pollution diseases cases, judgment has shifted from definitiveness to probability in respect of causality recognition. During such transformation,"probability theory","indirect counterevidence theory","theory of causality of epidemiology" and other theoretical methods of causality recognition have been created. They are collectively known as theory of "presumption of causality" in academic theory. Thanks to the superiority and value exclusively owned by theory of presumption of causality, it becomes more and more urgent and practical to introduce the theory into China’s judicial practice.In order to solve China’s dilemma in causality recognition of environment tort liability, and adjust the theory of presumption of causality to China’s situation, first, theory of presumption of causality shall be identified as guiding theory for causality recognition of China’s environment tort liability in jurisprudence, so as to guide specific administration of justice of court’s cases. Secondly, from the perspective of legislation, direct stipulation shall be issued in legal provisions in environment tort field to link presumption of causality with principle of conversion of burden of proof and fill law gaps of presumption of causality in China’s environment tort field by virtue of division of burden of proof and setting of standard of proof so as to better help victims. Last but not the least, judicial application problems of presumption of causality, including defining applicable presumption conditions, procedures in dealing with environment tort liability shall be further dealt with, and environment tort cases shall be classified in categories in accordance with guiding cases to avoid each presumption method applying in its own way. Effective cooperation of jurisprudence, legislation and judiciary will solve the judicial chaos of causality recognition of China’s environment tort liability to safeguard judicial justice and protect the victim’s legal rights.