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Research On The Constituent Elements Of Tort Liability For Ecological Damage

Posted on:2022-09-20Degree:MasterType:Thesis
Country:ChinaCandidate:G Y ChaiFull Text:PDF
GTID:2516306497481614Subject:Science of Law
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How to properly use tort law to adjust ecological damage has always been an issue of endless debate.The constitutive elements of tort liability for ecological damage,namely the definition of ecological damage,the principle of liability,the judgment of causality,and the scope of damage results,even after the tort liability for ecological damage is written into the Civil Code as a special tort liability,academic The debate in the world on this issue has never stopped.Regarding the connotation and extension of ecological destruction,the academic community has roughly two views on this issue: most views adopt the "physical resource solicitation theory",and a few adopt the "environmental public welfare infringement theory".From the perspective of the system design of the "Civil Code" on the tort liability for ecological damage,the "Civil Code" is more inclined to adopt the "environmental public interest infringement theory" to define ecological damage.Combining the viewpoints of scholars who support this theory,it can be seen that ecological destruction includes at least two characteristics,that is,the causal behavior of ecological destruction can include both the behavior of destroying the ecological environment and the behavior of polluting the environment;the infringement object of ecological destruction is the ecosystem and also It is environmental public welfare.From the perspective of extension,it is difficult to distinguish the tort liability for ecological damage caused by environmental pollution and the liability for environmental pollution.Therefore,it is of great significance to define the connotation of ecological damage.Regarding the principle of liability for tort liability for ecological damage,academic circles have two views: the principle of fault liability and the principle of nofault liability.Ecological damage tort liability is different from other dangerous liability,and is not compatible with the rules and principles of no-fault liability.It should be considered that the principle of fault liability is more suitable for the current system design,whether in theory,or in legislative and judicial practice,this tendency has been reflected.Interpreting the tort liability for ecological damage as the principle of fault liability conforms to the value concept of substantial fairness and justice.Regarding the question of how to judge causality in the tort liability for ecological damage,it is actually a question of whether the provisions of Articles 1234 and 1235 of the Civil Code can be connected with Article 1230.There are four points of view on whether or not the law can be connected: the inversion of causality,the presumption of causality,the general rules of causality,and the transformation of causality.Scholars who think that it can be connected have ignored that ecological damage tort liability as a kind of "public law liability" has a special difference from the principles of civil law.Forcible application of Article 1230 of the Civil Code will lead to the collapse of the tort law system.The viewpoints of general rules of causality and transformation of causality have their own advantages and disadvantages.Taking into account the current legislative and judicial status quo,it is more reasonable to adopt the viewpoint of general rules of causation.The scope of damage in the tort liability for ecological damage is different from the general rules of tort law.The scope of damage in the tort liability for ecological damage should be expanded,but it should be limited to considerable causality and legal purposes,that is,the content stipulated in Articles 1234 and 1235 of the Civil Code.The type of damage should be strictly limited within this range,and expansion of interpretation is prohibited.In addition,the types of ecological restoration responsibilities stipulated in Article1234 of the Civil Code and damage compensation stipulated in Article 1235 are completely new norms different from traditional systems in civil law.Ecological restoration should take the ecological “baseline” as the core for restoration,and the standards and methods of restoration can be flexibly adjusted under special circumstances.The amount of damage compensation should be based on the principle of complete damage compensation.For the part involving ecological value assessment,the damage should be comprehensively judged by the judge based on the assessment result and the purpose of the law;for other parts,the factor of "reasonability" should be considered.In short,the judge has the discretion to determine the amount of damage.
Keywords/Search Tags:Civil Code, ecological damage, tort liability, constitutive requirements
PDF Full Text Request
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