Research On The Tort Liability Of Damaging Ecology

The tort of damaging ecology, one of the reasons of environmental tort, has been ruled in the form of legislation by the newly revised Environmental Protection Law and the judicial interpretation on the environmental tort liability disputes from the Supreme People's Court for the first time. However, the legislation about the tort liability of damaging ecology in our country is relatively scattered and even uncoordinated in some respects, which causes the different dispute resolutions in judicial practice. The research which focuses on the tort liability of damaging ecology is rare. Works of civil law and environmental law just involve a few words, even more different opinions about it. Definitely, the basis of claim right, the liability principle, the constitution of liability, the exemptions and methods of responsibility of the tort liability of damaging ecology will be analyzed comprehensively in this paper in order to clarify it.This essay mainly includes four parts:The first part analyzes the handling model and existing basis of claim right about the tort liability of damaging ecology. And on the basis, the thesis puts forward the claim of rebuilding its basis of claim right. The court usually deals with tort cases of damaging ecology according to the tort of environmental pollution. Though it is helpful to relieve the victims to some extent, the tort of damaging ecology is different from the tort of environmental pollution. The existing basis of claim right, mostly stipulated by Tort Liability Law, Environmental Protection Law, Water Law, Soil and Water Conservation Law, Mineral Resources Law and relative judicial interpretations, is fragmented and indirect. It is insufficient to cope with more and more tort cases of damaging ecology. So the duty of rebuilding the basis of claim right should be undertaken by Tort Liability Law that is the fundamental law in the area of right invasion.The second part mainly discusses the liability principle and the constitution of liability of the tort liability of damaging ecology. As for the liability principle, the high-risk characteristic of the tort conforms with the essence of the no-fault liability principle. Furthermore, the adoption of no-fault liability principle is helpful to protect the masses who are in a vulnerable and disadvantaged position; The adoption of no-fault liability principle determines the constitution of liability——the tort, the harm and the causal relation between them. Only the harm of specific civil subjects is in the range of the harm caused by the tort of damaging ecology. Because Tort Liability Law is a kind of law dealing with private interests, not with public interests. So the damage to the environment should be ruled out. As for the causal relationship, we should not adopt the method of inevitable causal relationship that traditional torts do because of the characteristics of the tort of damaging ecology. This article suggests that we can construct the causal relationship both horizontally and vertically. Horizontally, different methods are set up to judge whether the causal relationship of tort of damaging ecology exists. Meanwhile, we can identify it vertically from factual causation and legal causation;The third part mainly discusses the exemptions of tort liability of damaging ecology. This thesis holds that self-defense and emergency avoidance may not be the exemptions theoretically. If the infringed partly contributes to the wrong, the liability on the tortfeasor may be mitigated. If the infringed deliberately contributes to the wrong, the liability on the tortfeasor can be exempt. Based on the idea of the law protecting the weak, a third party' tort and force majeure should be ruled out.The fourth part mainly discusses methods of responsibility of the tort liability of damaging ecology. There are three major types, namely five concrete forms according to the characteristics of the tort liability, including the removal of harmfulness, compensation for losses and recovery of original state. Stopping encroaching, the elimination of the obstruction and elimination of danger are contained within the removal of harmfulness. Compared with the afterward remedy of compensation for losses, the removal of harmfulness focuses on the prevention in advance. This method should be adopted more in the tort cases of damaging ecology. The characteristics of the tort decides that traditional remedy is insufficient in dealing with the cases. We should extend traditional remedy and adopt social relief system to make up the shortage.