Research On The Illegality Of Environmental Infringement Under The Background Of "Civil Code"

With the promulgation of the "Civil Code of the People’s Republic of China","environmental pollution liability" in the Tort Liability Law has officially become "environmental pollution and ecological damage liability",but unfortunately,whether it is the previous Tort Liability Law or the The newly promulgated "Civil Code" has not made clear provisions on the illegality of environmental infringement.In this regard,there are also differences in theory.The negative point of view is that the illegality element should be absorbed by the fault element in the constitution of tort liability.Therefore,in the constitution of environmental tort civil liability,there is no need to consider the illegality element separately.The affirmative point of view maintains that illegality and fault are two different concepts and have different roles and effects in the determination of tort liability.Therefore,illegality and fault should be considered separately and should not be confused.The aforementioned legislative status quo and theoretical differences also lead to difficulties in the application of judicial practice to a certain extent,and issues concerning the illegality of environmental torts need to be clarified urgently.Based on the aforementioned legislation,theory and practice,this paper studies the illegality of environmental torts,and believes that in the judicial practice of our country,the introduction of illegal elements of environmental torts is unavoidable,and it can promote the refinement and promotion of the elements of environmental tort liability.The normative significance and functions of the Civil Code and special environmental laws,such as systematization,normative duty of care of actors,are of great significance.On this basis,under the background of the promulgation of the "Civil Code",this article combines the practical experience outside the territory,especially the theory of "limitation of tolerance" in Japanese law and the "law of reciprocity" in Anglo-American law,and refers to the illegality that has been proposed in China.Judgment should follow the viewpoints of "consequences of illegality taking into account the illegality of actions" and "corrective justice(also known as " corrective justice ")combined with utilitarianism",and proposes to further finely divide environmental infringement into four parts,namely artificial environmental pollution,substantive Based on their respective characteristics and in combination with other relevant circumstances and specific factors,a basic identification standard shall be formulated to make a judgment of illegality.