The Applicability Of Restitution Liability To Ecological Environment Damage

In order to cope with increasingly serious environmental pollution and ecological damage,the Environmental Protection Law was amended in 2014.After that,the judicial environment related to ecological environment has been gradually improved.This is also manifested as more and more environmental problems that are presented in administrative or the format of the judicial case.The Supreme People’s Court issued relevant opinions demonstrating the need to "implement the damage relief system centered on ecological environment restoration",and General Secretary Xi Jinping also reaffirmed the determination to implement the strictest ecological environment protection system in the report of the 19 th National Congress of the CPC.However,in view of China’s existing environmental legal system,aiming at the damage caused by environmental pollution and ecological damage,Article 64 of the Environmental Protection Law stipulates the personal and property damage caused above leads to Chapter VIII of the Tort Law,relief is provided through the responsibility of environmental pollution.Regarding the damage to the ecological environment itself under environmental damage,except for the restoration system generally prescribed in Article 32 of the Environmental Protection Law,it has not been clearly stipulated and remedied at the stage of comprehensive environmental protection law.The legislative method considered in the General Provisions of the Civil Law(draft of the first review)adding “Repairing the ecological environment” to the civil liability method has not been adopted.However,if we focus on the level of judicial interpretation,the civil responsibility of “Restoration” for pollution of the environment and ecological damage will be clearly stipulated in the Interpretation on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations issued by the Supreme People’s Court.As an expanded explanation,the ecological environment restoration is regarded as one of the ways of Restoration Responsibility.However,whether it is easy to equate the Restoration Responsibility with the restoration of the ecological environment,the conflict between civil liability which used for the protection of private interests and the application of the protection of the environmental public interest,and how to resolve the contradictions in application that are prominent in practice have all caused widespread discussion in the academic community.Based on the meaning and content of Restitution Liability and restoration of the ecological environment,this article conducts a principle analysis of the application for the Restitution Liability to the damage of the ecological environment.That is why Restitution Liability,as one of the ways of bearing civil liability in civil law,can be applied to ecological environment,which is very different from the "thing" in traditional civil law.After conducting a theoretical analysis of this expanded interpretation,the author uses a combination of affirmative summary and negative enumeration to define the scope of application on this issue,and affirmatively summarizes its scope of application as follows.In order to apply Restitution Liability in the restoration process of the ecological environment,it is necessary to satisfy that the ecological environment damage is caused by the ecological destruction or environmental pollution in the civil tort case,the damage is repairable and the restoration is economical.After a general summary of the scope of application,the enumeration of the parts that cannot be applied to Restitution Liability are as follows,including the restoration of the ecological environment in criminal and administrative cases from the perspective of non-civil cases,the damage of the marine ecological environment from the perspective of environmental elements,permanent damage and periodical damage from the perspective of repairability,the unique self-recovery and alternative repairs in the restoration of the ecological environment,and discussing other issues of responsibility for the part where Restitution Liability cannot be applied.