Determination Of Punitive Damages For Ecological And Environmental Infringement

Article 1232 of the Civil Code formally establishes in law the application of the punitive damages system in the field of ecology and the environment,of which the determination of the amount of punitive damages is a crucial element in determining whether the system can achieve its function.If the amount is set too low,the system will lose its original punitive and deterrent effect,while setting the amount too high will result in excessive punishment.An appropriate amount of compensation will not only compensate the injured party for reasonable losses,but will also deter environmental violations and deter potential environmental violations.The Interpretation on the Application of Punitive Damages in the Trial of Ecological and Environmental Tort Disputes(hereinafter referred to as the"Interpretation")promulgated by the Supreme People’s Court provides a detailed interpretation of the punitive damages system,which clarifies the calculation base and multiples of punitive damages and the factors to be considered.This paper analyses the relevant provisions of the Interpretation,so that the problem of determining punitive damages for ecological and environmental torts in practice can be better resolved.This article attempts to study the issues related to the determination of the amount of punitive damages for ecological and environmental damage,with a view to providing ideas for the better application of the punitive damages system for ecological and environmental damage.The article first clarifies the theoretical premises for the determination of the amount of punitive damages for ecological and environmental damage.This part introduces the scope of application of punitive damages for ecological damage and the relationship between punitive damages and criminal fines,administrative fines and ecological restoration liability.It is argued that punitive damages can be applied in civil environmental public interest litigation,ecological damage litigation and private interest litigation.Punitive damages can be repeatedly applied in public interest litigation and private interest litigation,while civil environmental public interest litigation and ecological damage compensation litigation have the same essence,and punitive damages can only be sought in ecological damage compensation litigation that is heard first;environmental public interest litigation that is sued for the existence of claims that are not covered is not suitable for reapplication.The duality of ecological and environmental damage also leads to the fact that the legal interests infringed by ecological and environmental torts are often intertwined with public and private interests,and the precise definition of environmental public interest and environmental private interest is the primary issue in bringing environmental public interest litigation.This is not provided for in the Interpretation.This article does not limit itself to the definition of public interest,but adopts the method of interest measurement analysis and proposes the theory of intertwined public and private interests.In the choice of litigation strategy,the choice of environmental public interest litigation as the leading,supplemented by private interest litigation,can take into account the realization of environmental public interest and private interest.In terms of the relationship between punitive damages and other legal liabilities,this article argues that punitive damages for ecological and environmental damage are essentially a category of compensation for loss,and do not overlap with administrative fines and criminal fines,punitive damages and ecological restoration liabilities.According to the provisions of the Interpretation,the fines or administrative penalties incurred can be taken into account in determining punitive damages.Through the analysis of relevant cases,this article finds that the effect of this on the final amount of punitive damages is small and vague.Therefore,this article argues that the responsibility of actor should be considered as a whole,and when the same violation meets the requirements of punitive damages and administrative fines,care should be taken that the sum of the overall punishment of the different measures does not exceed the necessary limit;if the defendant actively undertakes the responsibility for ecological restoration and compensation,then the punitive liability in the private lawsuit can be applied depending on the circumstances.The second part of the article examines the issue of the liability for ecological damage.The second part of the article discusses the determination of the base amount of punitive damages for ecological and environmental damage.In principle,the amount of punitive damages for ecological and environmental damage should be calculated on the basis of the amount of compensatory damages.The choice of the base for punitive damages for ecological and environmental damage is clearly stipulated in the Interpretation,but in practice there are still problems such as "difficulties in applying compensation for moral damage","low support rate for compensation for property damage" and "difficulties in calculating ecological damage".However,in practice,there are still problems such as "difficulties in applying compensation for moral damages","low support rate for property damages" and "difficulties in calculating ecological damages".In this paper,we conduct an empirical study of ecological and environmental tort cases,using the keywords "personal damage","property damage" and"ecological damage" to search,collate and cite relevant cases.The paper also adopts a ease study approach to analyse the problems that have arisen in practice and to make recommendations.The paper firstly affirms the legitimacy of the application of moral damage compensation in the field of ecological and environmental tort,and argues that the low support rate of moral damage compensation is due to the difficulty of proving "serious consequences" and the unclear standard of moral damage compensation;it also points out that the low support rate of property damage compensation is largely due to the difficulty of proof and over-reliance on appraisal.The article also argues that relevant assessment methods should be developed as soon as possible to resolve the inconsistent standards for the determination of ecological damage.The third part of the article focuses on the determination of the multiples of punitive damages.The determination of the multiples of punitive damages is a very complex issue.From the perspective of domestic and international legislation and practice,it is difficult to quantify the multiples.This article will discuss the multiples of punitive damages for ecological damage from three aspects.Firstly,legal principles are always implemented in the departmental law,and are of guiding significance and generally binding.It is necessary to clarify the guiding principles that should be followed in determining the multiples of the amount of punitive damages for ecological and environmental damage,including the principles of prudent application and proportionality.Secondly,the choice of the multiples in determining the amount of punitive damages is also the core issue in determining the multiples.In this article,three different multiples are examined in the light of China’s legislation and judicial practice.Finally,China currently adopts the flexible amount model to determine the final punitive damages,which gives judges a certain degree of discretion.In order to regulate the exercise of judges’ discretion,this paper will discuss the influencing factors.