Research On Punitive Damages For Eco-environmental Tort

In recent years,more and more attention has been paid to ecological and environmental protection.From the perspective of policy,ecological construction is as important as economic development,and the environmental protection system must be established and implemented strictly,these have become the policy guideline in the field of eco-environment.From the perspective of practice,with the increasing strengthening of law enforcement and the increasing improvement of environmental protection awareness,long-term accumulation of historical ecological environmental problems and new ecological environmental problems are revealed.It has been the trend to respond to the environmental issues and implement policy requirements through establishmenting new legal systems and enhancing the strictness of legal rules in the field of eco-envitoment currently.In theory,punitive damages for ecoenvironmental tort fills the gap of traditional public and private law on ecoenvironmental protection,makes up for the lack of law enforcement by criminal,administrative and other public law as well as the insufficiency of supplementary compensation relief,and it also motivates qualified subjects to safeguard rights through active litigation effectively.The punitive damages system for eco-environmental tort established by the "Civil Code" has promoted the construction of the rule of law for eco-environmental protection in China.Based on the lack of application experience of eco-environmental protection laws and the current situation of environmental violations generally in China,the implementation of the most stringent environmental protection system should be stepby-step,it needs a process to accumulate legal experience and to adapt to for social public.The legal provision sets a number of strict conditions that shows the caution of legislation,and the vague expressions in the provision also indicatets that there are still many difficult problems on the application of this system that need to be explored and practiced gragually.Therefore,it is reasonable to implement the system with a cautious attitude,high conditions and not over strict requirements on infringers.During the application of punitive damages in eco-environmental tort,it is inevitable to resolve a series of controversial issues caused by vague expressions in legislation,no relevant judicial interpretations and adjudication cases,such as the applicable standards of constituent elements,the scope of application of the system,the determination of the amount of punitive damages,the burden of proof,etc.Regarding the applicable standards of constituent elements,it should be strict to understand relatively.First,the subjective elements are limited to two types of intention.Gross negligence should not be applied at present,and there may be room for application in the future.Secondly,the “illegality” of the behavioral element of objective element should be limited to violations of laws that enacted by the National People’s Congress and its Standing Committee.Specific actions include actions and inactions.Thirdly,the result element of the objective element requires "resulting in serious consequences".The scope of the consequences should include the damage of the eco-environment itself and the three types of damage consequences of general tort.The determination of "serious" can refer to the standards of judicial interpretation of criminal cases,and the behavior standard and the result standard among them should be applied differently.Regarding the scope of application,first of all,it is justied to apply the environmental infringement private interest litigation,environmental public interest litigation,and eco-environmental damage compensation litigation.The application of environmental tort private interest litigation is the proper meaning of the establishment of this system in the Civil Code.The latter two types of public interest environmental litigation have the same tendency of public law to private law and have the same value goals with punitive damages,and they can also promote with each other in their application.Secondly,from the perspective of constitutive elements and dialectics,environmental tort private interest litigation should be applied with the latter two types of litigation simultaneously.Regarding the determination of the amount of punitive damages,referring to relevant domestic and foreign laws and regulations and the current environmental protection situation in China,when determining the amount of punitive damages,the factors such as the infringer’s culpability,profitability and performance capabilities,and the difficulty of the infringed’s proof of evidence can be used as reference.And considering the discretion of judges and the actual performance of the infringers,the best calculation model is a flexible amount mode with an upper limit but no lower limit.In addition,the application of punitive damages may also involve the co-opetition of punitive property liabilities with other legal norms and legal systems,such as the overlap of civil law,administrative law and criminal law,or private interest litigation and two types of public interest litigation involved environmental public interest litigation and ecological environment damage compensation litigation in the field of civil law,or the co-opetition with the mental damage compensation system,etc.It should considere comprehensively to determine the amount in such circumstances,because the punishment for the same behavior should be limited,and the amount of punitive damages can be offset against each other and complement with each other.Regarding the burden of proof,according to the relevant principles of the burden of proof,the nature of the burden of proof for environmental tort is the inversion of the burden of proof.When requesting punitive damages,the burden of proof of causality and subjective elements should be inverted.Among them,the inversion of causality is an incomplete inversion,the infringed person has the obligation to provide evidence to prove the relevance between the act and the damage first.The "relevance" here belongs to the standard of proof,and only needs to reach the low degree of probability.