Study On The Illegal Elements Of Environmental Tort Civil Liability

As far as the constituent elements of tort liability are concerned,there has always been controversy in theoretical circles over whether the "illegality" element exists independently,and whether there is a definite connection between environmental tort liability and the "illegality" element as a special tort liability has not been conclusive.Analysis of relevant legislation shows that China’s environmental resources legislation has not formed a unified provision on this issue,and there are obvious differences between the Basic Law and the departmental law,and between the departmental law and the departmental law.There is also no uniform determination of this element in judicial adjudication,which is related to the inconsistency in legislation and also reflects the contradiction in the understanding of this issue between legislation,theory and judicial practice.Looking at the theoretical research on this issue,we can see that scholars still lack discussion on this issue,which will inevitably lead to confusion on this issue in judicial practice,so it is necessary to strengthen the research on the elements of illegality of environmental tort liability.The determination of environmental tort liability should apply the principle of no-fault liability.The application of the principle of no-fault liability in judicial practice is of great significance to ensuring people’s quality of life and maintaining social harmony and stability.This paper discusses the elements of illegality in special tort liability,and attempts to analyze and summarize the views of civil law and environmental law circles on the relationship between the principle of no-fault attribution of responsibility and the elements of illegality,with a view to achieving theoretical integration and support.This issue is the basis for the existence and non-existence of the elements of illegality of environmental tort liability,which can provide theoretical support for the solution of the problems discussed in this article.The elements of illegality should be applied in special tort liability: fault cannot absorb illegality for special tort liability that applies the principle of no-fault liability is also applicable,and the significance is more significant,and the application of the principle of no-fault liability makes the argument that the connotation of fault absorbs the judgment of illegality no longer applicable;the assumption of special tort liability does not require the subjective fault of the actor,at this time the objective lawlessness bears the reason for the actor to bear tort liability,if both elements are excluded,the bearer’s liability is only left with the legal act.The damage result and causality elements will obviously collide violently with the rule of law concept of ordinary people;the limitation of tortious acts in environmental civil liability to polluting acts does not eliminate the necessity of applying the illegality elements,and the determination of environmental tort liability still needs to be a prerequisite for the determination of illegality.The elements of illegality should be applied in environmental tort liability: there is an essential difference between illegality and fault,and the concept of fault is difficult to include or absorb the elements of illegality;the act of "meeting the standard" is not necessarily "legal",the standard is difficult to fully reflect the value needs of tort law,it is inevitable that the victim must have the protection and relief that should be obtained,and the concept of illegality should be expanded and analyzed;in the case of the application of the principle of no-fault liability,the role of the element of fault has been excluded,if the element of illegality is also excluded.I am afraid that too much emphasis on the interests of the victims will hinder the protection of the freedom of the perpetrators,resulting in an imbalance in the measurement of interests and a bias in the choice of values;the protection of the distinction between rights and interests is not a prerequisite for the application of the elements of illegality,and the current laws in China recognize to a certain extent that civil rights and civil interests are protected by different degrees of law;judicial practice has recognized the importance of illegality for the establishment of environmental tort liability,and has been applied in specific cases.Observing the legislation of some countries,such as Portugal and Italy,it can be found that the concept of illegality is not explicitly used in their national legislation,but the concept of illegality has been established in practice,which provides a reference for the establishment of the illegality element in China,that is,this element is clarified through judicial channels.That is to say,if the concept of illegality is not clearly defined in the statutory law,it is necessary to determine the elements of illegality through judicial channels and choose a special tort liability rule violation confirmation mode.At the same time,it is also necessary to refer to the German law’s practice of differentiating the protection of rights and interests other than rights as a powerful tool for balancing the two major value objectives of rights and interests protection and freedom protection.The judgment of the illegality of environmental pollution acts shall distinguish between substantive pollution and simulated pollution,and the criteria for judging the illegality of the act shall be adopted for the simulated pollution acts,and the substantive pollution acts shall cause damage to absolute rights and other rights and interests other than absolute rights,respectively,and apply the results of illegality and illegal acts to determine their illegality.When the ecological damage is caused by the ecological damage,the determination of the illegality of the behavior shall be determined by the judgment standard of the illegality of the behavior,and when causing ecological environmental damage and thus causing damage to the personal or property rights and interests of others,distinguish between absolute rights and other rights and interests,and adopt the criteria for judging the illegality of the result and the illegality of the behavior respectively.