The Illegality Of Environmental Tort

In the aspect of the establishment of environmental tort liability,the theory of negating the elements of illegality holds that illegality is not the constituent element of liability.The reason for this is,first of all,to explain the meaning of the expression"illegal"in the provisions of the law.It is considered that the appearance of violation of laws and regulations is equivalent to the"illegality"of the act,and because of the gradual abandonment of the expression of "illegal" in Article 65 of the Tort liability Law and Article 1 of the interpretation of Environmental Tort liability disputes,Therefore,environmental tort constitutes the non-adoption of illegal elements;Second,China's environmental tort adopts the principle of no-fault imputation,which makes no distinction between illegality and fault,which leads to the exclusion of fault and neglects the in-depth discussion of illegality;third,At present,the situation of strengthening environmental protection and the value orientation of protecting victims strengthen the concept that as long as damage is caused and there is a causal relationship,it constitutes tort liability.This makes the illegality of the environmental tort itself not fully supported by the corresponding legal value.However,in the cases represented by Lu Yaodong case and Shen Haijun,the judge introduced the environmental control standard to judge the illegality,and the Supreme Court also recognized that in the case of dryness and noise environmental tort,the act is illegal in order to constitute tort liability.The precedent of judicial practice makes it necessary to rethink the illegality of environmental tort.This paper holds that the elements of illegality should be adopted in environmental tort liability.First,the judgment of illegality can not be avoided when the judge decides the case,which is in line with the logic of the constitution of tort liability,and there are already practical cases as support;second,illegality refers to the illegitimacy of infringing upon civil rights and interests.It is a negative evaluation based on the act itself,including,but not limited to,the violation of laws and regulations in the pattern of the act;third,the concept of illegality is conducive to including different types of tort;fourth,The exercise of the claim for exclusion of environmental tort is based on the premise that the act is illegal;fifth,the illegality helps to measure the freedom of behavior of the offender and the interests of the victim;sixthly,The introduction of illegality is a response to the expansion of tort law and the protection of environmental rights.In the aspect of how to judge the illegality of environmental tort,there are relevant theories in American law and Japanese law.Japan's tolerance limit theory holds that if the harm exceeds the"tolerance limit",it will be considered illegal.To judge whether it has exceeded this limit of tolerance,it is necessary to comprehensively compare and measure the nature of the damage,the nature of the harmful behavior and social evaluation.According to American law,the determination of illegality needs to consider the seriousness of the infringed interest and the possible economic benefits of the infringement to the society.If the damaged interest is "not significant",the victim needs to bear the duty of toleranceThis paper holds that the judgment of the illegality of environmental tort in China is not a simple single-dimensional evaluation system,but a multi-dimensional evaluation system which comprehensively examines the nature of damage and the specific forms of harm behavior.Therefore,it is necessary to distinguish different types of infringement for typing discussion.The comprehensive measurement process involves the consideration of a variety of factors,The specific factors include:(1)the nature and extent of the damage,(2)whether the act violates the environmental regulation rules,(3)the nature of the infringement,Degree and social evaluation(4)whether the infringement exceeds the standard of acceptance of the average person in society(5)region.Sex(6)the perpetrator has an endless duty of care,take protective measures(7)whether it is in line with the popular custom(8)the sequential relationship of land use(9)the balance between public interest and personal interest.