环境污染损害赔偿立法研究
[Abstract]:The environmental pollution problems in our country are becoming more and more serious, and the compensation disputes of environmental pollution damage are increasing. However, because the legislation of compensation for environmental pollution damage in China is not perfect, the disputes can not be solved in a timely and reasonable way, the protection of the legitimate rights and interests of the citizens and the stability of the society are also affected. We must improve the legislation for compensation for environmental pollution damage.
The legislation of compensation for environmental pollution damage has its solid theoretical basis and realistic basis. The new theory of environmental rights breaks through the traditional civil law and the bondage of civil procedure law. It provides a legal basis for the legislation of environmental pollution damage compensation legislation; the entirety environmental ethics values provide the basis of environmental ethics for the legislation of environmental pollution damage compensation. The theory of social control provides the basis of legal sociology for the legislation of compensation for environmental pollution damage, and the theory of cost and income provides the basis of law and economics for the legislation of compensation for environmental pollution damage. The enhancement of the economic strength of our citizens and legal persons and the improvement of the comprehensive national strength of our country provide the economy for the legislation of the compensation for environmental pollution damage. Foundation; the requirement of establishing a harmonious society between man and man and man and nature provides a political basis for the legislation of compensation for environmental pollution damage.
The legislation of compensation for environmental pollution damage should be based on the sustainable development and the establishment of a harmonious society. The aim is to solve civil disputes in the environment, protect, improve the environment, protect the ecological balance, protect the people's personal rights, property rights and environmental rights and promote the harmonious and sustainable development of environment, economy and society.
More and more countries have begun to make special legislation on the compensation for environmental pollution damage in more and more countries. The typical representative is Sweden's environmental damage compensation law, the environmental liability law of Germany and the United States' comprehensive environmental response, compensation and liability law, and the law of dealing with public hazards in Japan, but China started late in the legislation of environmental damage compensation. The high incidence of environmental disputes and difficulties in handling our country must make a special law on compensation for environmental pollution damage to be included in the agenda of national legal system construction.
In the content of environmental damage compensation legislation, we should solve the key problems of the environment surrounding the liability principle of damage compensation, the way of determining the causation, the limitation of action, the way of taking responsibility, etc. in the principle of imputation, we should adopt a single principle of no fault liability in determining the causation between pollution pollution and environmental pollution damage. On the other hand, the theory of causality should be adopted to divide causality into causality and causal relationship between responsibility and responsibility. It is applicable only to causal relationship between causality and causality established by responsibility. At the same time, indirect anti evidence, factual self proof, and epidemic causality can be used to identify causality according to different circumstances. Knowing that the conduct of a pollutant discharge may lead to environmental pollution and the result of the property and personal damage of others, the polluters who still carry out the act, or have a subjective perception of the high risk of causing pollution damage to the environment, and still apply punitive damages to the polluters of their own behavior. The limitation of general litigation for compensation for damage to environmental pollution shall be 3 years. It should be calculated from the time when the right holder can exercise the claim, rather than when the right holder knows or should know it, and the maximum limitation of action is 30 years, from the time of enforcement of the tort or the occurrence of an event that caused the damage, not from the infringement of the rights of the right person.
In order to ensure that the compensation for environmental damage can be realized, the ways and methods for the socialization of compensation should be stipulated in the environmental damage compensation law, mainly including the environmental liability insurance and the environmental compensation liability fund. There are two kinds of liability funds, one is the private fund which is provided by the polluters and consists of their main body, one is the government by the levy ring. The application of the two funds is in the order that the civil fund is first applied if it is in conformity with the conditions applicable to the civil fund, only if it does not meet the conditions applicable to the civil fund. The administrative compensation fund shall be applied to the victims who are unable to obtain the fund conditions, and the State shall bear the final compensation liability with the finance.
In order to facilitate the implementation of the legislation for compensation for environmental damage, an environmental public interest litigation system should be established, which stipulates that citizens, social organizations, procuratorial organs, and administrative organs may act as plaintiffs to protect the public interests of the environment. In order to benefit environmental litigation and environmental pollution damage compensation, an independent environmental dispute treatment should be set up. The door organization strengthens the function of administrative adjudication and endows administrative adjudication with enforcement power.
The law of compensation for environmental pollution damage should be the lower law of environmental protection law and a single line method which integrates substantive law and procedural law. Its main content framework should include the scope of compensation for environmental pollution damage, the conditions of compensation liability, the relationship between the liability and other civil liability, the relationship between the administrative fine, the criminal fine, the limitation of action and so on. At the same time, it also stipulates procedural problems such as presumption of causation, inversion of burden of proof, public interest litigation and administrative handling.
【学位授予单位】:中国政法大学
【学位级别】:博士
【学位授予年份】:2009
【分类号】:D922.68
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