The Proof Of Causation In Environmental Toxic Tort

The proof of causation is the most difficult problem in environmental toxic tort cases.First,it is a tough mission to collect the evidence directly,which has become a common problem.Second,there are many countries which have tried to solve the problem of proving causal relationship in the judiciary through developing a series of theories,although China has a similar theoretical discussion,but seldom apply them to judicial practice,and does not play their due value in judicature.Third,there is no special legislation on environmental toxic tort in China,but it has several points in common with environmental tort,therefore,maybe we can find an applicable rule from Tort Law of China in article sixty-sixth,as a rule of causation proof.The proof of causation is closely related to the burden of proof,but relying solely on the sixtysixth article can hardly deal with who is responsible for the burden of proof and what degree should be reached in judicial proceedings.This article will focus on these questions.The first part,explain some related concepts and characteristics,and the challenges of causation proving in environmental toxic tort.The second part of the article,the part of the sixty-sixth article of the Tort Law of China,“the polluter shall assume the burden to prove that...there is no causation between its conduct and the harm”,is in dispute.Whether it is the inversion of the burden of proof or the presumption of causation,will be analyzed and expounded here.Theoretically,the inversion of burden of proof will focus on whether the polluter should prove that causation doesn't exist.If the polluter cannot,a causation between conduct and harm can be inferred,otherwise,the reverse.The presumption of causation must be based on normal connection.Normal connection must be checked by experience rule and scientific evidence,which can avoid the falsehood of the conclusion brought by the use of inversion of burden of proof.Accordingly,it shows that the inversion of the burden of proof is essentially different from the presumption of causation.In the use of presumption,the plaintiff need not prove the causal relationship to a high degree of probability,but prove the normal relations and basic facts to an extent.The pressure about plaintiff's burden of proof can be effectively alleviated,thus,presumption should be an effective path to prove the causation.Practical experience shows that,when judging a case of tort,a judge always depends on experience to determine the causation between conduct and damage.To this degree,it is reasonable for the plaintiff to provide evidence appropriately.In the case of environmental toxic tort,judges need to judge the causal relationship based on the contents of plaintiff's "preliminary proof".This presumption is only a preliminary identification of causation,allowing the defendant to make a rebuttal.Therefore,the sixty-sixth article of the Tort Law of China should adopt the presumption of causation rule in order to obtain real application space in the judicature.At present,our country mainly uses experience rules,scientific evidence and other methods to prove the normal connection,and for the standard of proof,there should be "relevance" between pollution behavior and damage.The meaning of "relevance" and the theory of probability is the same in nature.The article's third part is about some legislative and judicial activities in international scope.For example,China's Taiwan region,takes the way of presumption of causation to determine the causal relationship,which requires the victim to provide probable evidence.The United States has richer experience in dealing with toxic tort,details and specific judicial decisions have been formed for the different cases of toxic tort cases.Through the discussion about the theory of the proof of causation,this paper argues that,in the absence of the rule of experience,the applying of the theory of probability and proof by contradiction is limited,and the use of epidemiology needs to meet conditions strictly.So,specific circumstances should be taken into consideration to help judge determine which theory is appropriate for the proof of causal relationship.The forth part,in order to form the rules of the proof of causation of the environmental toxic tort in China,it should be clear that the content in the sixty-sixth article of Tort Law of China,“the polluter shall assume the burden to prove that...there is no causation between its conduct and the harm”,is the presumption of causation,and the meaning of presumption should be defined in legislation.On one hand,this change will widen the application space of the sixtysixth article,and avoided the embarrassing situation of the application of the article in the judiciary.On the other hand,it can also be combined with sixth and seventh article of the Supreme People's Court Interpretation on Certain Issues with respect to the Environmental Tort(hereinafter refers to the Judicial Interpretation of Environmental Tort)reasonably,forming rule system to deal with environmental disputes about causation.At the same time,we should improve the introduction system of scientific evidence,examine the scientific evidence strictly,find a new way to handle the proof of causal relationship,and try to apply epidemic method in the proof of causation.On the issue about the degree and standard of proof,according to the differences of the appeals of the parties,a variety of litigation types have been formed in United States in solving environmental toxic tort,with specific criteria for review,which provides a good reference example for China.