Research On The Dilemma And Approach Of Ecological Law Damage Remedy By Private Law

In order to implement the concept of green development and achieve the goal of ecologically sustainable development,the academic and practical circles brainstormed in the process of compiling our civil code,and finally in the "Civil Code of the People's Republic of China "(hereinafter referred to as "Civil Code " Seven clauses were drafted,which not only introduced the concept of “ ecological destruction”,but also creatively included compensation items for ecological environmental damage,greatly improving the operability of the environmental tort liability system,which shows that in the future civil code,in addition to adjusting the traditional environmental civil In addition to infringement(personal damage and property damage),we have also given legislative responses to the “new” ecological and environmental damage.However,in judicial practice,the consequences of ecological and environmental damage are difficult to be identified.Damage compensation cannot really be implemented.To this end,the author analyzes different doctrines,deeply analyzes the main problems and cruxes in the remedy of ecological environment damage private law,proposes solutions and solutions,and hopes to compensate the ecological tort damage The perfection and construction of ecological civilization do their best.In addition to the introduction and conclusion,this article is mainly divided into the following four parts.The first part mainly defines the concept and characteristics of ecological environment damage,and lays a conceptual foundation for studying the ecological environment damage system.Eco-environmental damage as an adverse change of environmental factors and biological factors caused by environmental pollution and ecological destruction,and the functional degradation of the ecosystem composed of two elements,its characteristics are mainly manifested in the unspecificity of the subject of rights,the cause of behavior and damage The diversity of forms,the specificity of the infringement of interest,the duality of the damage result and the technicality of the damage result identification;in the analysis of related concepts,environmental tort is a civil damage liability that includes both traditional civil damage and ecological and environmental damage.The scope of the concept of damage is slightly larger than the concept of environmental infringement.It is a double damage to personal interests and public interests.Environmental damage focuses on results.In a narrow sense,it only refers to damage to the environment itself.Environmental harm includes the risk of possible unprofitability.The second part mainly elaborates the predicament of ecological environment damage in private law relief.In terms of theoretical predicament,the ecological environment damage private law relief lacks the existing theoretical basis.Eco-environmental damage is not a simple form of damage,but a type that contains damage to public interests.Due to the unpredictable nature and instability of the consequences of eco-environmental damage,traditional tort damage theories cannot effectively respond to the remedy.In terms of institutional dilemmas,first of all,the relevant legal system for the relief of ecological environment damage by private law is not perfect,mainly reflected in the lack of legal systems for regulating ecological environment damage;There are three aspects of imperfection,the high cost of judicial appraisal of environmental damage and the low degree of standardization of appraisal procedures;again,the ecological environmental damage compensation lawsuit and the environmental civil public interest litigation are not well connected.As a civil remedy procedure for the relief of the damaged public welfare,the two overlap in practice and application,but the existing system does not clearly stipulate the order of the two,which leads to difficulties in the specific application in practice.Finally,ecological damage compensation The standard is not clear.The current environmental damage compensation often uses the "virtual governance cost method" in the calculation,but this method has a large difference in results due to different types of pollution in the specific calculation process,which is not conducive to the private law relief of ecological environmental responsibility.The third part mainly demonstrates the legitimacy foundation of ecological law damage relief.Eco-environmental damage is a special type of damage that travels between public law and private law.Before the environmental public interest litigation system and the eco-environmental damage compensation system have been introduced,it is mainly regulated by public law,but public environmental laws and regulations have ecological environment damage.The defects to be avoided,on the one hand,the administrative punishment method is difficult to make up for the ecological environment damage,on the other hand,it can not play a role in deterring the person responsible for environmental pollution,it is difficult to prevent the ecological environment damage from happening again.In order to solve the problems of "corporate pollution,public victimization,and government bills",under the influence of the principle of the burden of damage,the academic community proposes to include ecological environmental damage into the private law system for relief.How to include ecological environmental damage into the scope of private regulations? There are representative views such as the power theory of natural body,theenvironmental interest theory of citizens and the environmental interest theory of the public.Among them,the public environmental interest theory believes that the public has the right to protect the environment,and damage to the environment itself means damage to the public interests of all social members.The doctrine establishes a connection between tort law and environmental law,indicating that ecology Environmental damage is the result of public and private law regulation.Relatively speaking,the theory is more reasonable.On this basis,the author advocates that an ecological damage theory should be constructed,with relief methods focusing on the restoration of the ecosystem,thereby protecting the integrity of the ecosystem.The proposal of ecological damage theory has laid a full theoretical basis for the private law relief of ecological environment damage.The fourth part mainly puts forward the specific path of improving the private law relief of ecological environment damage.First of all,the expression "causing damage to others" in the "Civil Code(Draft)" should be changed to "cause damage",expand the scope of the tort liability law,pay attention to the link between the tort liability law and the environmental protection law,and clarify ecological and environmental damage Compensation calculation standards,improve the calculation method of the virtual governance cost method,comprehensively consider a variety of factors to determine the appropriate multiple of the virtual governance cost method;Second,to improve the ecological environmental damage compensation system,the key is to improve the environmental damage judicial identification system,perfect The withdrawal mechanism of judicial appraisal institutions and personnel,the establishment of an ecological environment damage compensation fund guarantee system,the use of special accounts or the establishment of special funds for management;Finally,the connection between civil public interest litigation and ecological environment damage compensation litigation should be strengthened,and government agencies and Social environmental organizations have a priority in litigation and actively establish information communication mechanisms.