China's ecological environment damage compensation claim subject is

Environmental civil tort Legal knowledge of damages Environmental civil tort refers to the natural environment in which human beings live due to man-made reasons has been seriously polluted or damaged, thus causing a certain range of civil rights and interests of the citizens have been harmed by a special kind of tort, including environmental damage and environmental pollution. First, the characteristics of the environmental civil torts compared with the traditional civil torts, environmental civil torts have the following characteristics: 1, the infringement of the scope of the broad nature. The environment, belonging to human beings **** have. Each element of the environment is mutual influence, mutual constraints, if one of the elements have been damaged or polluted may make the whole natural environment of human existence change. Therefore, the object of the environmental tort is often quite a region within the scope of the unspecified majority of people or things, and may also involve the future generations of human beings. 2, the long-term nature of the infringement of time. Environmental tort caused by the results of the infringement has a long latent period and is not easy to be found. Humans to the environment pollutants on human health or property damage caused by the general after several years or even longer time to be found. Some pollutants even continue to cause harm to the persons or property of surrounding populations for hundreds of years. A normal tort ceases once the tortfeasor stops committing it. However, the damage caused by environmental torts is ongoing, and will not stop immediately due to the cessation of the infringement, but to continue to play a role in the environment for a certain period of time. In short, the environmental infringement caused by the harmful consequences of the latent period is quite long, some even irreversible. 3, the harm caused by the interests of behavior. Environmental infringement is always accompanied by economic development, pollution of the environment is often a variety of activities to create social wealth, engaged in public *** welfare activities in the derivative behavior, in violation of the legitimate rights and interests of others at the same time, but also with a considerable degree of value legitimacy. In some regions, in order to develop the region's economy, many environmental violations have been licensed by government administrative agencies, providing an administrative legitimacy for the violations. Many facts show that environmental violations are seen as a valuable infringement, a permissible harm. 4, the non-specificity of the subject of harm. Modern environmental infringement is not only a specific person or a specific enterprise of the so-called illegal, criminal behavior caused by a number of unspecified by the majority of people's unquestionable day-to-day behavior caused by the accumulation of, such as in the automobile emissions caused by the incident of photochemical pollution and other compound infringement of the incident, to find the victim of the victim, even if it is not impossible, but also is extremely difficult. In the case of victims, it is even more difficult to identify them. In addition, the environmental tort also has the complexity of the causal relationship, the diversity of causes of harm. Second, the relief of environmental civil infringement Due to the environmental infringement of harm to a wide range of geographical areas, the number of victims, the amount of compensation is huge, which makes the traditional civil law of their own responsibility, the principle of tort after the fact remedial system has become an unfair obstacle to the victims to seek relief. Certain environmental torts are difficult to quantify and compensate for the damage to the ecological environment. Due to the damage to the ecological environment has a long-term, even through the judicial way to the specific victims of the judgment to give compensation, can only solve the current generation of damages, can not be given to future generations of damage to give compensation, can not realize the intergenerational fairness. Moreover, the ecological damage affects a large number of people, and it is difficult for the court to decide and execute, even if the compensation is given to each victim, it is still difficult to take measures to restore the ecology, and the residents of the mining area will still be in a poor ecological environment for a long time. Compensation for ecological damage through judicial means is not the best choice. In the legal means of environmental protection, the civil law can play a limited role, compared to various means, it often only plays a secondary role. Therefore, in order to "prevention is better than cure" and avoid the victim actually can not get compensation, as well as to protect the enterprise not because of the burden of compensation is too heavy and affect the economic and social development, the environmental infringement should be based on different types and characteristics, the establishment of administrative relief, judicial relief and other multi-channel to be remedied by the civil remedies system. (a) administrative relief. Modern environmental law in all countries in the world almost without exception by the national environmental administrative power of the national environmental protection work to carry out unified supervision. The realization of environmental protection goals, mainly rely on the realization of the state's environmental administrative power. Article 41, paragraph 2, of China's Environmental Protection Law provides: "Disputes over liability and the amount of compensation (for causing harm from environmental pollution) may, at the request of the parties concerned, be dealt with by the competent administrative department of environmental protection, or by any other department exercising environmental supervision and management in accordance with the provisions of this Law; if the parties concerned do not accept the decision to deal with the matter, they may bring an action in the people's court. The party concerned may also sue directly in the people's court." Our government is a responsible government, restore the ecological environment damaged by environmental infringement is the responsibility of all levels of government. Moreover, administrative remedies are conducive to timely, efficient and proper resolution of disputes. Compared with the people's court, the environmental authorities and the people's court, familiar with the scope and process of the act, with talent, technology, equipment and other advantages, generally can quickly identify the cause of the damage, accurately delineate the responsibility, and simple and easy to be accepted by both parties. Favorable to the effective control of mining damage. The state supervises and manages the enterprises. The competent environmental administrative organ has the right to order compensation and take necessary remedial measures. If necessary, the administrative organ may also withdraw the license and close down the enterprise according to law. It can be seen that the competent administrative organs have a strong influence on the enterprises, which can effectively ensure the implementation of the damage compensation. At the same time, it is conducive to the restoration of the ecological environment. Administrative organs have a sound organizational system, in consultation with the centralized use of damage compensation, can organize the masses to build water conservancy, laying drinking water, irrigation pipe network facilities, properly solve the problem of drinking water for people and livestock, agricultural irrigation and other problems, reduce the hidden safety hazards, planting trees, and restore the ecological environment. Administrative remedies include administrative mediation and administrative arbitration. Mediation is conducted by the competent department of the people's government to which the enterprise belongs, and the agreement reached may be better fulfilled. China has not yet established the environmental dispute arbitration system, as mentioned earlier, administrative settlement of environmental infringement damages has a unique advantage, China should establish the environmental infringement disputes or mediation, or adjudication or trial of ADR (AlternativeDisputeResolution) way - selective dispute resolution. (ii) Judicial relief. Relying on the government to manage the environment, the resolution of environmental disputes is generally fruitful, and a large number of conflicts can be resolved outside the judicial process. However, some damages disputes inevitably have to be resolved through judicial means. Judicial settlement of mining damages disputes, should pay attention to the following two issues: 1, active defense of rights, careful filing. The people's court not only to play the trial function, actively safeguard the legitimate rights and interests of the victims, but also to take into account the situation, carefully filed, in order to facilitate the proper resolution of disputes. In the case review, attention should be paid to the examination of public welfare damage or private interest damage, is an individual dispute or group dispute. 2, loss and causation determination. From the allocation of the burden of proof, the scope of loss should be proved by the victim, the tortfeasor denies that there is a causal relationship between the tort and the consequences of the damage, should bear the burden of proof. Third, the environmental tort litigation in the special rules of proof (a) reversal of the burden of proof in 1992, the "applicable opinions" in the damages caused by environmental pollution, the implementation of the reversal of the burden of proof by the defendant to bear a certain burden of proof, which certainly reduces the plaintiff's burden of proof and the court's workload and costs, but has not yet fundamentally solve the problem. 2001, "the provisions of evidence" is a "reversal of the responsibility for proof", the "provisions of evidence" is the "provisions of evidence", the "provisions of evidence" is the "provisions of evidence". Provisions of 2001 is the reversal of the burden of proof of the relevant provisions of the breakthrough, but also in environmental infringement litigation in the implementation of the reversal of the burden of proof of the relevant issues made specific provisions. In the "provisions of the evidence" of the fourth article, due to environmental pollution caused by the damages litigation, by the victim of the law on the exemptions and their behavior and the damage results of the causal relationship between the burden of proof. Visible, in the process of environmental infringement litigation victim to prove from two aspects in order to be exempted from liability. On the one hand, the exemptions provided by law. This aspect is expressly provided by law, the exemption has three aspects: one is force majeure factors, refers to unforeseeable, unavoidable and can not overcome the objective circumstances, such as acts of war, natural disasters and so on. But this factor to become exempt from liability must have a precondition, that is, the damage must be entirely due to force majeure factors, and the damage must be taken in a timely manner by reasonable measures still can not be avoided; Second, the fault of the third party, including the third party's intentional or negligent behavior caused by environmental pollution damage. However, the damage is caused by the third party without fault, the victim should still bear the liability; Third, the environmental pollution damage is caused by the victim's own responsibility. On the other hand, the victim is to prove that there is no causal relationship between its pollution behavior and the results of the damage. Article 41, paragraph 1, of the Environmental Protection Law, amended and promulgated in 1989, stipulates that any person who causes harm by environmental pollution is responsible for eliminating the harm and compensating the unit or individual who has directly suffered the damage. In this provision, there is no requirement that the aggressor needs to have fault with the existence of illegal behavior as a prerequisite, that is, the aggressor of pollution damage caused by the environment to bear no-fault liability. No-fault liability is the form of attribution for special torts. No-fault liability and the principle of fault liability in the composition of one of the differences lies in the harm caused by the behavior and the damage results of the causal relationship between the burden of proof. In environmental tort litigation, it is quite difficult for the victim to determine the factual causality, so the burden of proof of causality is shifted to the victim in the legislation. In the causal relationship of the burden of proof in our country is to take the "presumption of fact" theory. If the victim can scientifically prove that there is a link between the fact of damage and the act of pollution, and the aggressor can not come up with strong evidence to prove that such a causal relationship does not exist, then it is presumed that a causal relationship exists. In China's environmental civil trial practice, in fact, the principle of presumption of causality, in order to facilitate the victims to participate in the litigation and protect their legitimate rights and interests, to avoid overemphasis on direct causality and lead to agnosticism. In environmental infringement civil litigation, although the provisions of the implementation of the reversal of the burden of proof is conducive to the protection of the interests of the victim, but this principle of allocation of responsibility in practice should pay attention to a number of issues: 1, the reversal of the burden of proof only means that the plaintiff's part of the burden of proof borne by the defendant. In the environmental infringement litigation, the victim is still to the damage caused by environmental pollution to the fact of evidence, but also to prove that the perpetrator of pollution and damage to the fact that there is a causal relationship between. If the plaintiff has reached the degree of cover, and the defendant can't prove the counter evidence, shall not deny the existence of causal relationship. Visible, the plaintiff or to prove some basic facts. 2, the judge should be the reversal of the burden of proof to inform the parties in advance. In the environmental infringement civil litigation, although the law provides for the victim's burden of proof, but in the actual judicial operation process there are many specific problems. After the reversal of the burden of proof, the defendant does not necessarily know clearly the facts to be proved. If the judge does not explain in advance, which is tantamount to depriving the party to prove the opportunity, resulting in evidence raid, contrary to the fairness of the program. 3, in the judicial decision should be detailed in the reversal of the burden of proof reasons. This on the one hand can make the burden of proof reversal and the losing party convinced, reduce the appeal and application for retrial, on the other hand, in the losing party does not accept the reversal of the appeal, can make the higher court is easy to review the reversal of the burden of proof of the use of the correct. (ii) The role of forensic appraisal Forensic appraisal refers to the appraisal and judgment made by the judicial organs on the relevant things in the case by applying scientific and technological or other specialized knowledge in order to ascertain the facts of the case. Due to the degree of environmental pollution, the degree of damage and other issues, need to have scientific authority, and the identification of experts with professional knowledge of the use of advanced scientific and technological means, the analysis of certain specialized issues, and make the concluding observations, has a strong authority and credibility, and its proving power is very high, the identification of environmental infringement litigation plays a significant role in the conclusion of the trial of the case of the indispensable means of proof. Case is indispensable means of proof. In addition, in the environmental pollution infringement litigation, in addition to the degree of pollution identification, there are medical identification, in order to determine the physical condition of the victim and the causal relationship between the harm done. It can be seen that the extensive use of appraisal findings, is another characteristic of the environmental pollution tort litigation in the proof of activities. As mentioned earlier, the scope of loss and causal relationship of tort damages are difficult to determine, and scientific identification is usually required. In order to prevent the identification of multiple, the conclusion is not the same, in practice, by the original, the defendant consensually choose an appraisal organization for identification, in the power of attorney in the clear requirements of the appraisal body to distinguish between the loss of causation and identification of the respective costs, respectively, by the original, the defendant to pay. Due to the environmental infringement damages with long-term and continuity, causing secondary damage, should be re-assessed to determine the loss and causation, due to environmental infringement is not suitable to continue to live, the victim asked to choose another site to build a house, can be judged by the infringer of a one-time compensation, a complete solution to the dispute. For production, life damage, try to mediate by both parties to reach an agreement, clear annual compensation standards, time, way, to avoid prosecution every year, resulting in litigation, a waste of judicial resources. Fourth, the principle of attribution of environmental tort liability civil liability for tort According to the different object of damage, manifested in different ways. Article 41 of the Environmental Protection Law provides for two forms of liability: elimination of harm and compensation for damages, but the ten civil liabilities stipulated in the Civil Code, such as cessation of infringement, elimination of nuisance, elimination of danger, and restoration of status quo ante, can all be applied to environmental civil liability. However, the most commonly used method is to compensate for the loss, i.e. to pay compensation. The scope of compensation for damages includes both compensation for property losses and compensation for property losses caused by personal injury; both direct and indirect losses. In general, the amount of damages to the actual loss of the victim shall prevail, does not allow the use of punitive measures, that is to say, the assumption of civil liability for environmental torts follow the traditional civil law principle of homogeneous compensation.

Article 121 of the Chinese People's *** and National Code If two or more tortfeasors pollute the environment or damage the ecology, the size of the responsibility to be borne shall be determined in accordance with the type, concentration, and emission of pollutants, the manner, scope, and degree of ecological destruction, and the role of the act on the consequences of the damage, and other factors. Article 1232 of the Chinese People's *** and National Code, if the infringer violates the provisions of the law and intentionally pollutes the environment and damages the ecology, causing serious consequences, the infringed person shall have the right to request corresponding punitive damages.