On The Causality In Environmental Tort

Since1978, along with the party central committee put forward the reform andopening up, China’s economy has entered the fast lane of development, and People’sliving standard has been greatly improved.But with more than thirty years ofdevelopment, the country’s water pollution, air pollution, soil pollution, naturaldestruction of every hue of pollution and environmental destruction is deteriorating.Therefore, a lot of people’s health has been eroded, precious life is swallowed, theenvironmental tort has become a big concern of society.Compared with the general tort, environment tort has the general characteristicswhich the general tort has, but it also has its unique ones, such as long-term, latent,complexity etc. In terms of imputation principle, the two is different, general tortgenerally adopts the principle of fault liability, While the environment infringementis USES the principle of no fault liability. This makes in the components of theenvironment infringement, how to identify the causal relationship becomes theimportant factor of whether environment tort can be set up or not. So the study ofenvironmental tort causation problems has started to attract more attentions from thescholars all over the world.In view of the unique characteristics of environment tort has, If we insist onusing the traditional theory of causation or the causal relationship theory, there maybe such a phenomenon, namely, the victim is damaged, but unable to obtaincompensation because of the difficulty in the identification of causality. To avoidthis situation, the scholars of various countries who are actively exploring in the fieldof environmental tort have put forward a series of new causality theories, such astheory of probability, epidemiology causality theory, indirect disproof theory etc.The author expounds on the United States, Japan, Germany, the three countries ofsome typical cases, and then analyzed the theories of causality and mutual relations,the advantages and disadvantages of the theory.In the theory of the causation of environment tort, because influenced by neighboring countries of the former Soviet Union, China once insisted to applycausal relationship theory. But with the national legal system constructionimplementation, scholars have realized that dialectical materialism is not inconformity with the causal relationship theory, so they began to question the causalrelationship theory. With the emergence of some new theories, scholars in ourcountry put forward different views on how to draw lessons from these theories.Some scholars believe that we should learn from these new theories based onabandoning the theory of causal relationship; while the others think that we shoulddraw lessons from these new theories based on it. No matter what kind of reference,there is no doubt that it is a kind of progress in this field in our country, and not onlythe sublation of causal relationship theory, but also more in line with China’s nationalconditions. Matched with this, causal rules from the judicial interpretation up to thegeneral law, from the initial " On the applicable opinions on some issues of the civilprocedure law of the People’s Republic of China" and" The provisions about the civilaction evidence", to" The People’s Republic of China on the prevention and controlof environmental pollution by solid waste "and" The People’s Republic of China onthe prevention and control of water pollution", to the new promulgated " tort liabilitylaw ".But, as a lower court judge, based on the environmental tort cases together, toclarify our country about the causality of environment tort rules (i.e. The onusprofaned inversion rules) is actually a kind of allocation of the burden of adjustment.That is just within the category of the burden of proof for the rules, but not fromproof method on rules, in other words, our criminal law does not clearly define thecausality presumption rules. The author through the legal norms, applicablecondition, and no-fault liability collocation of onus profaned inversion rules,analyzed the causation presumption rules, and thinks the causality presumption rulesis more suitable for causal relationships in the field of environmental infringement.The reasons are as follows: Onus profaned inversion puts all the burden of proof theinflicted party rules, is undoubtedly exacerbated the offender responsibilities,although the perpetrators and victims than in the strong position, but this kind ofcomparison is relative, sometimes compared to the natural sciences, the two may be in the same position or even the opposite position, But the rules in reality alsoincrease the possibility of a victim rampant litigationAnd presumption of causation is more scientific, objective burden of proof onthe matters assigned, victims of environmental tort, often in a weak position, so onlyask for some objective, preliminary matters to the lower probability to be proved, ifthese basic matters as the victims are unable to prove it, so he could face because ofproof cannot undertake the corresponding adverse legal consequences. Compared tothe offender who is strong, is not exempt from the causal relationship between theproofs, but to reach a certain standard of proof in the victim, the judge to confirm theestablishment of the cause and effect relationship, is presented to demonstrate thehigher request to the offender. From the perspective of economic development, ingeneral, the perpetrators are often the backbone enterprise in the development of thelocal economy, if the perpetrators are too harsh words, will affect the local andnational economic development, which will lead to increase of laid off workers,crime and a series of social unrest situation and frequent. Of course, just make thecausality presumption rules is not enough, also need to establish the relevantprovisions such as matching with the standard of proof, proof methods, The actualsituation which requires our legislators in recognize Chinese, selectively referencethe scientific theories and practical experience of USA, Germany, Japan and othercountries, thus set a causal relationship between environmental tort law rules whichaccords with the situation of our country. In order to guarantee the normalproduction and operation of enterprises, to promote rapid economic development,and also gives the victim compensation in a timely manner.