生态正义视野下的生态损害赔偿法律制度研究

发布时间：2018-08-06 18:49

【摘要】：正义是法律最重要的价值理念之一,也是衡量法律之善的尺度。法律则可以促进正义价值的实现,变应有正义为实然正义。自正义的概念被提出以来,正义理论便随着人们社会生活需求的变化而变化,工业革命之后,随着环境污染与生态破坏问题的日趋严重,及生态利益与负担分配的不公正现象的持续恶化,人们对正义理论提出了新的诉求,即要求用正义理论来解决环境问题,从而发展出了生态正义理论。如今生态正义已得到了我国许多环境伦理学者们的关注,但缺少在法律层面的运用,生态正义在我国仍属于道德层面而没有被纳入到具体的法律制度中来,特别是缺少生态损害赔偿责任的法律规范。在生态损害赔偿责任立法缺失的情况下,企业很难自觉的负担环境成本,承担生态损害的填补责任,从而造成了生态损害后果由社会公众承受的生态损害责任分配不正义的现象。为了抑制和矫正这种现象,我国急需将生态正义法律化,构建生态损害赔偿责任法律制度,确立“污染与破坏者赔偿”原则。生态正义由正义理论发展而来,生态正义与正义的基本原理有着深刻的关联。因此文章从正义的基本原理入手,借用马克思主义正义理论来剖析正义问题产生的根源,分析历史上人们对正义内容的界定,提出正义的内容包括权利、义务与责任三个方面。正义的内容又可具体被划分为分配正义与矫正正义两个方面,前者解决的是如何公平公正的分配权利、义务与责任的问题;后者指向的是责任,即矫正责任人的不法行为,从而使受损的权益得到重新的恢复。文章进一步借用马克思主义的正义理论来分析分配正义与矫正正义的尺度问题。之后,运用马克思与恩格斯分析环境问题的方法,找出我国生态不正义问题产生的根源在于资本逐利的本性。我国处于市场经济的转型期,资本的本性无法被消除,但却可以被限制,因此限制资本是促进实现生态正义的根本路径,而将生态正义法律化则是实现资本限制的一项重要措施。与正义的内容相一致,生态正义的内容也应包含生态权益、义务与责任三个方面,三者互为条件,缺少任何一个另两个均无法实现。国内的许多学者认为“生态正义”就是“环境正义”,二者可以通用,而实际上两者并非同一概念,“环境正义”主要是指人们之间的环境利益与负担的分配公正,即分配正义；而“生态正义”则不仅包括分配生态正义,还包括矫正生态正义。其中分配生态正义是关于生态权益、义务与责任的分配理念。矫正生态正义的基本理念为追究环境危害人的责任,使受损生态充分恢复到损害发生之前的状况。总体而言,生态正义的内容包括生态权益、义务与责任,这三项内容又可被具体划分为分配生态正义和矫正生态正义。生态正义法律化的基本路径是先将分配生态正义和矫正生态正义的理念确立为环境立法的基本价值理念,之后通过设定具体的生态权益、义务与责任将生态正义基本理念进一步转变为具体的法律制度。生态损害赔偿责任是实现生态权益与义务的最终保障,与权益和义务相比,责任更加凸显出了限制资本逐利性的功能,主要体现在三个方面,其一,法律责任以国家机器为保障,具有强制力和执行力,可以对潜在环境危害人起到威慑的作用,使其在进行生产经营活动时主动地承担环境成本,积极避免损害的发生,从而变“环境成本外部化”为“环境成本内部化”；其二,生态损害赔偿责任立法以“污染与破坏者赔偿”为基本原则,要求造成生态损害的人承担损害赔偿责任,从而变“企业污染,公众承担”为“污染与破坏者赔偿”；其三,生态损害赔偿责任立法可以实现对生态损害的预防与填补。预防损害是在损害发生之前,由责任人负担避免损害发生的费用,以及在损害发生之后,由责任人负担控制损害扩大的费用。填补损害是在损害发生之后,由责任人承担生态损害恢复的一系列费用。预防费用与恢复费用的负担无疑会加大企业的生产成本,从而实现对资本的事前限制和事后限制。生态损害赔偿责任立法对资本的限制功能能够在很大程度上促进实现生态正义,因此文章主要分析生态损害赔偿责任的法律化,即在矫正生态正义理念之下构建生态损害赔偿责任的基本法律制度,包括责任的构成、损害赔偿的范围及额度；以及在分配生态正义理念之下使生态损害赔偿责任得到公平公正的分担;并在矫正生态正义与分配生态正义的理念之下构建生态损害的社会化救济机制与生态损害索赔机制,从而实现对生态损害的充分恢复,使赔偿由应然变为实然。自矫正正义的概念被提出以来,其理念主要是在法律责任的构成与认定上得到了发展与运用。生态损害赔偿责任的基本法律制度是使责任人承担生态损害赔偿责任的基本依据,缺少这些制度侵害人的责任将无法被认定,赔偿也无法得以实现。生态损害赔偿责任基本法律制度的理论基础为矫正生态正义。矫正生态正义旨在追究环境危害人的责任,将受损的生态恢复到损害发生之前的状况。矫正生态正义的内容主要包括两个方面,一是对人们污染与破坏环境行为的矫正,二是对受损生态资源的补救,这两个方面又分别涉及到另外两个问题,即行为矫正的尺度与补救的尺度。矫正的尺度所要解决的问题是责任人的行为在符合哪些条件时才能够被归责,也即是生态损害赔偿责任的构成要件,主要包括生态损害事实,环境危害行为,归责原则,及侵害行为与损害后果之间存在因果关系几个方面。补救的尺度所涉及的问题是责任人应当承担何种程度的赔偿责任,即生态损害赔偿的范围与赔偿的额度。关于这些问题,如今学术界均没有达成一致意见,文章以实现矫正生态正义为价值目标,并运用马克思主义的相关理论来解决上述问题。依照亚里士多德关于分配正义与矫正正义的划分理论,分配正义被破坏之后,矫正正义才会发生作用。在法律层面,法律规定了人们应当享有的权利和履行的义务,在权利被侵犯或者滥用之时,初始的分配正义被打破。为了使分配正义得到重新的恢复,矫正正义将会发生作用,即追究违法者的法律责任,填补受害人所遭受的损失。但在矫正正义发挥作用之时,仍会涉及到责任的分配正义问题。依据一般的侵权责任法原理,责任分配的规则为将受害人的损失全部转移给责任人承担。然而由于生态损害赔偿的数额十分巨大,仅凭环境危害人的个人财力难以达到矫正生态正义的目标,在生态损失额超过了责任人的承受能力之时,为了避免损失由其他无辜的社会公众来承担,传统的责任分配规则将被更改,用一个公式来表达为：损失=个人责任+社会化责任。这一公式看似违背了责任公平分担原则,以及“污染与损害者赔偿”原则,而实质上并非如此。其中的奥妙就在于社会化责任中的“社会”,这里的社会并非指的是全体社会公众,而是所有的潜在环境危害人。从环境公共物品理论的角度,这些危害人属于环境利益的共同体,他们在获取了环境利益的同时,应当分担相应的责任。这些危害人责任分担的基本尺度为：分担的比例与环境危害的程度成正比,即潜在的环境危害程度越大,承担责任的份额就越大。在损失大于责任人的承受能力之时,超出的部分将由潜在的环境危害人来按比例分担,这一结果既避免了“企业污染,公众承担”的生态负担不公正的后果,又能够促进分配生态正义的实现,从而使初始的分配生态正义得到恢复,受损的生态权益得到补救。如今,社会化责任救济机制己在许多领域得到了运用,马克思与恩格斯就曾指出为了抵御风险,实现社会的稳定发展,社会化的救济机制不仅能为资本主义国家所用,而且应当为社会主义国家所用。虽然文章指出社会化责任救济机制主要体现的是分配生态正义的价值理念,但是社会化救济机制却具备强大的填补损害的功能,即具备充足的财力使受损生态充分的恢复到损害发生之前的状况。其中使损失得到充分的救济是矫正生态正义的基本理念,因此社会化救济机制的基本理念不仅包括分配生态正义而且还包括矫正生态正义。最主要社会化救济机制为生态损害责任保险与生态损害赔偿基金两大类。其中生态损害责任保险是与个人责任相并列的填补机制,其功能为通过保险人的监督及保险费率的更改与最高赔偿额的设定等限制制度来激励被保险人采取措施避免损害的发生。被保险人的环境危害程度越高,其所要缴纳的保险费用就越高,其所要分担的责任比例也就越大。并且在损害发生之时,责任保险能够对损害进行有效的补救。生态损害赔偿基金则属于第二层的填补机制,基金的款项来源于所有潜在的环境危害人,他们应负担的摊款额度以他们自身的环境危害程度为依据。在个人责任及其购买的保险无法填补全部损害之时,基金将发挥作用,与责任保险相比,基金的赔付能力更加强大,也更能够发挥出矫正生态正义的价值。为了实现责任的公平分配,文章建议对环境风险类型进行划分,要求高危险行业建立行业互助型生态损害赔偿基金,全国所有潜在的环境危害企业应当共同组建综合型的生态损害赔偿基金。在高危险行业下的企业发生损害时,应先由该行业下的基金进行赔付,不足部分由综合型生态损害赔偿基金赔付。矫正生态正义与分配生态正义属于实体正义,实体正义的最终实现需要借助于程序正义,而程序正义又以实体正义为条件。马克思曾指出审判程序和实体法之间的关系极为密切,就好比是动物的外形与动物的血肉一样。没有公正的审判程序那么实体正义就难以实现；若没有实体正义,审判程序也将成为毫无内容的形式。生态损害的索赔机制不仅仅是追求实现程序上的正义,而更应当注重实现实体正义,因此文章建议将生态正义的理念运用到生态损害索赔的司法实践之上。即以生态正义为基本理念,构建生态损害的索赔制度,包括确定生态损害的索赔主体,构建公益诉讼索赔及诉讼外索赔两大制度。以马克思主义关于国家代表共同利益的理论为依据,指出应由相关行政机构代表国家行使生态损害的索赔权。在行政部门怠于行使索赔权时,应当扩充索赔主体的范围从而避免发生生态损害索赔落空的困境。关于索赔的模式,以实现生态正义为基本理念,确立环境公益民事诉讼为生态损害索赔诉讼的模式；明确诉讼当中举证责任的分配标准及责任和损害事实等的认定标准；构建诉讼外的生态损害的协议赔付制度,及生态损害的社会化责任索赔机制。
[Abstract]:Justice is one of the most important values of law as well as a measure of the good of the law. Law can promote the realization of the value of justice. It should be just as true justice. Since the concept of justice has been put forward, the theory of justice is changed with the change of the needs of people's social life. After the industrial revolution, with environmental pollution and ecology The problem of destruction is becoming more and more serious, and the injustice of the distribution of ecological benefits and burden is deteriorating. People have put forward new demands on the theory of justice, that is, the theory of justice is required to solve the environmental problems, thus the theory of ecological justice has been developed. Less in the legal level, ecological justice still belongs to the moral level in our country and is not included in the specific legal system, especially the lack of legal norms for the liability for compensation for ecological damage. In the absence of the legislation of the liability for ecological damage compensation, it is difficult for the enterprise to bear the environmental cost and bear the responsibility for the filling of the ecological damage. In order to suppress and correct this phenomenon, our country urgently needs to legalate ecological justice, construct the legal system of ecological damage compensation liability, and establish the principle of "pollution and saboteurs compensation" in order to restrain and correct this phenomenon.
The ecological justice is developed from the theory of justice, and there is a profound relationship between the basic principle of justice and the basic principle of justice. Therefore, the article, starting with the basic principle of justice, uses the Marx theory of justice to analyze the root cause of the problem of justice, and analyzes the definition of the content of justice in the history, and puts forward that the content of justice includes rights and obligations. And the three aspects of responsibility. The content of justice can be specifically divided into two aspects of distribution justice and correction justice. The former solves the problem of fair and fair distribution of rights, obligations and responsibilities; the latter refers to the responsibility, that is, to rectify the wrongful behavior of the responsible person and thus restore the damaged rights and interests. By using the justice theory of Marx's doctrine, this paper analyzes the scale problem of distributive justice and correction justice. After the analysis of the environmental problems of Marx and Engels, it is found that the origin of the ecological injustice problem in our country lies in the nature of capital by profit. China is in the transition period of market economy, but the nature of capital can not be eliminated, but the nature of capital can not be eliminated. It can be restricted, so the limitation of capital is the fundamental way to promote the realization of ecological justice, and the law of ecological justice is an important measure to realize capital limitation. In accordance with the content of justice, the content of ecological justice should also include three aspects of ecological rights, obligations and responsibilities, the three are mutually conditional and lack any other two. Many domestic scholars believe that "ecological justice" is "environmental justice", the two can be universal, but in fact, the two are not the same concept. "Environmental justice" mainly refers to the distribution justice of environmental interests and burdens among people, that is, distribution justice, while "ecological justice" includes not only the distribution of ecological justice. It also includes the correction of ecological justice. The distribution of ecological justice is the concept of the distribution of ecological rights and rights, obligations and responsibilities. The basic idea of correcting ecological justice is the responsibility of investigating the environment endangering the people and restoring the damaged ecology to the situation before the damage. In general, the content of the biological justice includes ecological rights, obligations and responsibilities. The three contents can be divided into the distribution ecological justice and the correction of ecological justice. The basic path of the legalization of ecological justice is to establish the concept of ecological justice and correction of ecological justice as the basic value concept of environmental legislation. After that, the basic concept of ecological justice is set by setting specific ecological rights and interests, obligations and responsibilities. It is further transformed into a specific legal system.
The liability for compensation for ecological damage is the ultimate guarantee for the realization of ecological rights and interests. Compared with the rights and obligations, responsibility is more prominent in the function of restricting the profit of capital, which is mainly embodied in three aspects. One is that the legal responsibility is guaranteed by the state machine, and has the force of coercion and the ability to act as a deterrent to the potential hazards. It makes it take the initiative to bear the environmental cost in the process of production and operation, and actively avoid the occurrence of the damage, so as to change the "externalization of environmental cost" to "internalization of environmental cost"; secondly, the legislation of the liability for ecological damage compensation is the basic principle of "pollution and the compensation of the destroyer", which requires the people who have caused the ecological damage to bear the damage compensation. Responsibility will change "the pollution of the enterprise, the public take" as "the compensation for the pollution and the saboteurs". Thirdly, the ecological damage compensation legislation can realize the prevention and filling of the ecological damage. The prevention damage is the burden of avoiding the damage by the responsible person before the damage occurs, and the responsible person is charged after the damage. The cost of enlarging the damage. To fill the damage is a series of expenses for the restoration of ecological damage after the damage. The burden of prevention and recovery will undoubtedly increase the production cost of the enterprise, so as to realize the prior and post restrictions on the capital. Enough to promote the realization of ecological justice to a large extent, so the article mainly analyzes the legalization of the liability for compensation for ecological damage, namely, the basic legal system of establishing the liability for compensation for ecological damage under the concept of rectifying ecological justice, including the composition of responsibility, the scope and amount of damages, and the ecological justice concept to make ecology under the concept of distribution of ecological justice. The liability for damages is shared fairly and fairly, and the social relief mechanism of ecological damage and the claim mechanism of ecological damage are constructed under the idea of correcting ecological justice and distribution of ecological justice, so as to realize the full recovery of ecological damage and make the compensation become real.
Since the concept of corrective justice has been put forward, its concept is mainly developed and applied in the Constitution and identification of legal liability. The basic legal system of the liability for compensation for ecological damage is the basic basis for the responsible person to undertake the liability for compensation for ecological damage, and the lack of these systems will not be identified and the compensation can not be obtained. The theoretical basis of the basic legal system of ecological damage compensation liability is to rectify the ecological justice. The correction of ecological justice is aimed at investigating the responsibility of the environment endangering people and restoring the damaged ecology to the situation before the damage. The main contents of the correction of ecological justice include two aspects, one is the correction of people's pollution and destruction of the environment. The two is to remediate the damaged ecological resources. The two aspects also involve two other problems, namely, the scale of the behavior correction and the scale of the remedy. The problem that the scale of correction should solve is that the responsible person's behavior can be impacted when it meets the conditions, that is, the constitutive requirements of the liability for compensation for ecological damage, mainly including There are several aspects of the causal relationship between the ecological damage facts, the environmental harm behavior, the principle of imputation and the consequences of the infringement and the consequences. The extent to which the remedy is concerned is the extent to which the responsible person should bear the liability for compensation, that is, the scope of the compensation for ecological damage and the amount of the compensation. In order to achieve the value goal of correcting ecological justice, the article uses the relevant Marxist theory to solve the above problems.
According to Aristotle's theory of division justice and correction justice, after the distribution justice has been destroyed, the correction of justice will have a role. In the legal level, the law stipulates the rights and obligations that people should enjoy and the obligation to perform. When the rights are infringed or abused, the initial distributive justice is broken. To rectify the restoration, the correction of justice will have a role, that is, to investigate the legal responsibility of the offender and fill the losses suffered by the victim. However, when the justice plays a role, it will still involve the distribution of justice. According to the principle of the general tort liability law, the rule of responsibility allocation is to transfer all the loss of the victim to the responsibility. However, as the amount of compensation for ecological damage is very large, it is difficult to achieve the goal of correcting ecological justice by the individual financial resources of the environment. When the amount of ecological loss exceeds the capacity of the responsible person, in order to avoid the loss of the other innocent public, the traditional rules of responsibility allocation will be changed. A formula is used to express that loss = personal responsibility and socialized responsibility. This formula seems to be contrary to the principle of fair share of responsibility and the principle of "compensation for pollution and damage", but in essence it is not so. The mystery lies in the "society" in the social responsibility, which is not the public, but the public of the whole. All potential environmental hazards. From the perspective of environmental public goods theory, these endangering people belong to the community of environmental interests. They should share the corresponding responsibilities while obtaining environmental benefits. The basic yardstick of the sharing of these hazards is that the proportion of the shared responsibility is proportional to the degree of environmental harm, that is, the potential environment. The greater the degree of harm, the greater the share of responsibility. When the loss is greater than the bearing capacity of the responsible person, the excess will be proportionate to the potential environmental hazards, which avoids the unjust consequences of the "corporate pollution, the public" ecological burden, and thus the realization of the realization of the distribution of ecological justice. The original distribution ecological justice is restored and the damaged ecological rights and interests are remedied. Nowadays, the social responsibility relief mechanism has been applied in many fields. Marx and Engels have pointed out that the social relief mechanism can not only be used for the capitalist countries but also should be used to resist the risks and realize the stable development of the society. Used for a socialist country.
Although the article points out that the social responsibility relief mechanism mainly embodies the value concept of distributing ecological justice, the social relief mechanism has a powerful function to fill the damage, that is, it has sufficient financial resources to make the damaged ecology fully restored to the condition of the damage before the damage. In this way, the loss is fully remedied by Jiao Zhengsheng. The basic idea of state justice is that the basic concept of social relief mechanism includes not only the distribution of ecological justice but also the correction of ecological justice. The most important social relief mechanism is the two categories of the ecological damage liability insurance and the ecological damage compensation fund. Its function is to encourage the insured to take measures to avoid damage through the supervision of the insurer and the change of the premium rate and the setting of the maximum amount of compensation. The higher the degree of environmental harm to the insured, the higher the insurance cost it will pay, the greater the proportion of its responsibilities. At the time of birth, liability insurance can make an effective remedy for the damage. The ecological damage compensation fund is a second layer filling mechanism. The fund is derived from all potential environmental hazards, and the amount of their contributions should be based on the extent of their own environmental hazards. The individual liability and the insurance for its purchase cannot be filled. At the time of the damage, the fund will play a role. Compared with the liability insurance, the fund's compensation ability is stronger and the value of the correction of ecological justice is more effective. In order to realize the fair distribution of responsibility, the article recommends the classification of the types of environmental risk, and requires the high risk industry to establish a mutual aid type ecological damage compensation fund for the industry. Enterprises with potential environmental hazards should jointly set up a comprehensive ecological damage compensation fund. In the case of damage to enterprises under high risk industries, the funds under the industry should be paid, and the insufficient part is paid by the comprehensive ecological damage compensation fund.
Rectifying ecological justice and distributing ecological justice are substantive justice.
【学位授予单位】：华中师范大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D922.68

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