Environmental infringement

下面为大家整理一篇优秀的paper代写范文- Environmental infringement，供大家参考学习，这篇论文讨论了环境侵权。危害环境的侵权行为，是一种特殊侵权行为。在环境侵权行为中，有一些是为创造财富，增进公众福利活动的附属行为。这些生产生活活动属于符合社会生活常规、有价值有意义的合法行为。如果这些活动被完全禁止，社会发展将会停滞不前。因此对引起环境侵权的各种产业、经济活动既不能完全禁止，也不能放任自流，而应权衡社会、经济、环境各方面的利益，确定在发展经济，保护人体健康及环境资源等各方面均能接受的平衡点。

Sudden hearing the teacher in the book "the environmental protection law," pointed out: "bad for the environment tort, it is a kind of special infringement behavior. The object of infringement including the property right and personal right and environment right of others. Infringement of property rights, it is to point to by pollution or damage to the environment and make the other people's property has been damaged,, such as pollution or damage other people's land, crops, livestock, poultry and aquatic products. Due to infringement of the right, it is to point to by pollution and harm to environment and the health and life damage to others, including the cause of illness, injury, disability, death, etc. The environment right infringement, is due to the violation of the stipulations of environmental protection, pollution, damage, damage to the environment and has hurt other people should enjoy normal environmental quality or environmental comfort, with peace of noise and vibration harm others, hamper the normal work and rest and learning; Or illegally blocking others by illegal buildings housing lighting and ventilation, etc."

Environmental tort such as discharge of waste water, waste residue, waste gas production enterprise itself is often to create wealth, increase public welfare activities of the subsidiary. The production and living activities belong to conform to the normal social life meaningful and valuable legal act. If these activities are completely banned, social development will stagnate. So as to the cause of environmental tort can neither a total ban on all kinds of industries, economic activity, also cannot let themselves go, but should be balancing the interests of social, economic, environmental aspects, in the development of economy, the protection of human health and the environment and resources and so on various aspects are acceptable balance, although the economic development of industry economic activities, control environmental pollution, thus to develop economy and protect the environment rights and interests of citizens.

Environmental tort perpetrators are often economic strength of enterprises, while the victim is often lack of evading capability and resistance of weak social individuals. Both sides power position difference, in fact no equality.

Environment infringement behavior, is determined by the environmental self-purification capacity, when a certain pollutants emissions more than environmental self-purification capacity, environment can't digest that part of the pollutants will be accumulated slowly, the number to a certain extent, to show its damage, therefore, the damage caused by the pollution of the environment is often after a long time to detect.

In the environment infringement behavior, the offender is usually not directly impact on the victim, but is first applied to the surrounding environment, then through the intermediate link "environment" on the victim's health and property, has obvious indirect.

China's "general principles of the civil law" the 124th regulation: "in violation of the provisions of the state environmental protection to prevent pollution, environmental pollution causes damage to others, shall bear civil liability according to law". That is to say, does not undertake the pollution legal polluters to the health of others, property damage of tort liability. But at the same time, the environmental protection law of the first paragraph of article 41: "produce environmental pollution hazard, it is the responsibility of eliminating danger, and the direct damage to the unit or individual compensation". It can be seen as long as the legitimate rights and interests of units or individuals for environmental pollution and damage, shall assume the liability for compensation. "General principles of the civil law" and other special law about environment tort violations do not match the constitutive requirements of regulation, caused controversy in practice.

Environmental tort belongs to special tort, should not be in behavior illegality as the components of the environment infringement. "General principles of the civil law" is only suitable for a variety of tort including the provisions of the principle of environmental tort in the regulation of specific characteristics should be left to the special law.

Victim disadvantaged due to environmental problems are often difficult to detect potential environmental tort damage to oneself, also hard to prove that the cause of the offender behavior and damage result of cause and effect, so the causation presumption, the burden of proof in environmental tort theory a rush. However, the current legislation in China, the environmental tort litigation has not been made causality and the special rules of burden of proof. Only in the supreme people's court "about the opinions on some issues of applicable" the 74th of damages caused by environmental pollution in the litigation has made the transfer of the burden of proof: the explanation of the "facts of infringement of the plaintiffs, defendants denied, the defendant will be responsible for the proof." Which is too general, the judge in the judicial practice also so often in a dilemma, is not conducive to the parties rights and interests of the maintenance. It should be said that the causal relation estimation principle and transfer the burden of proof, should make a provision in the procedural law and special law environment.

Due to the pollution of the environment, the characteristics of the problem of latent and generalized broke out, there are many environmental problems tend to be serious, so that polluters pay when damages, cannot afford the high compensation. The establishment of social compensation mechanism is through insurance or compensation fund and administrative compensation way, by the polluters pay premiums or accumulation fund, will face the damages to the insurance company or Shared by the whole society, which on the one hand, can avoid the single polluter, lack of ability to pay due to the relief strength at the same time can also be through by the society share the risk, reduce the burden of the polluters and development is conducive to raise the enthusiasm of production, creation and the development of social economy. Social compensation mechanism mainly includes liability insurance system, financial guarantee system, the administrative compensation system and the system of punitive damages.

Conciliatory system of environmental infringement rule out of interest measurement is based on the basic thinking methods. On the principle of benefit measure macro to consider national environmental policy on the environment and reasonable and effective configuration of resources, costs and benefits of economy, the law of fair and reasonable. First of all to consider the nature of the infringement and degree such as the infringement form, rationality, eliminate the possibility, severity of the violation, etc., second to consider is the infringement of the nature and content of interests; Such as life, health, property, and finally determine the scope of the rights and interests protection and the relief way. Due to the mandatory completely ruled out the infringement harm the stop of industry and commerce enterprise management activity, needs to be interest measure, strict carefully make a decision. The fact that the parties to the economic interests of the two balance.

In advocating the theory of environmental right at the same time, shall be confirmed in the environmental law and guarantee citizens' right to know, to participate, and appropriate expansion of scope of the parties involved in the environmental administrative process, perfect the public participation in environmental protection of procedural law, so that citizens have interests or environmental groups in major polluting factories and facilities as well as the development and construction project environmental impact assessment report, the approval stage, for the possibility of environmental violations, as far as possible to participate in the public opinion hearing etc way out. Countries it is necessary to support the development of public welfare, environmental groups, in accordance with the law, including environmental protection organization, the public the opportunity to participate in environmental protection, guarantee the exercise of the environmental right to know and participate.

At present, in our country environment infringement is a new way of tort, although China is a developing country, the emphasis on economic construction, but must not go to pollution, governance after the path to economic development, establish the sustainable development of circular economy is the ultimate goal of socialist modernization construction in our country.

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