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The no-fault liability system for environmental tort

2019-07-17 来源: 51due教员组 类别: Paper范文

下面为大家整理一篇优秀的paper代写范文- The no-fault liability system for environmental tort,供大家参考学习,这篇论文讨论了环境侵权的无过错责任制度。无过错责任原则,指的是存在损害事实,不考虑行为人的主观过错的归责标准。在环境侵权中坚持无过错责任为主是符合侵权法的救济功能,但坚持所有的环境侵权案件都适用无过错责任原则是不合理的,这忽视了环境侵权的类型化。环境侵权无过错责任原则符合当今社会经济发展的要求,既保护了当代人的权利,也照顾到了后代人的权益。

no-fault liability,无过错责任原则,essay代写,paper代写,作业代写

"The principle of no-fault liability refers to the standard of imputation of the subjective fault of the actor without considering the fact of damage. In other words, regardless of whether the actor is subjectively at fault or not, he shall bear tort liability for any damage caused by the actor's social activities or the person or thing he manages."

As for whether the tortfeasor has the fault subjectively, the victim does not need to provide proof. Even if the tortfeasor refutes with the fact that there is no fault subjectively, it cannot be the defense reason.

Because in the case of applying the principle of no-fault liability, whether the tortfeasor is subjectively at fault or not depends on whether the tortfeasor is a direct consequence of the fact of injury.

The application of fault liability principle can not adapt to the development trend of industrial society. In order to balance the interests between the victim and the tortfeasor, as well as the balance between social development and the protection of individual rights and interests, the scope of application of the principle of no-fault liability should be specified by law.

In special tort disputes, the above situations cannot be the exemption grounds completely, and the exemption grounds are different among different types of special tort events. This is because in these special tort infringer inequality between the patentee and status, to make the loss by the infringer to get timely relief, must balance the interests between the patentee and the infringer, the infringer may be raised ground of relief to a certain limit, to get in a timely manner to protect the legitimate rights and interests of the patentee.

However, since the late 19th century, with the rise of the industrial revolution, traffic accidents, industrial disasters, environmental pollution and other problems occurred frequently. As the principle of fault liability was used to deal with industrial accidents, most of the results of the settlement ended in workers losing. This greatly escalates the conflicts between the workers and the bourgeoisie and seriously slows down the development of the capitalist economy.

There is no consensus in the legal community on whether "illegality" is a constituent element of environmental tort liability. Article 41 (1) of the environmental protection law of the People's Republic of China in 1989 does not take "illegality" as an indispensable factor for environmental infringement.

Relative to the principle of fault liability limited to traditional natural justice standard of law, principle of liability without fault is focus on the whole social benefit balance between individual and strength contrast of different social groups, to seek the best way to solve the dispute, to timely relief for victims in the civil law the goal of fairness and justice requirements.

Under the traditional theoretical system of civil liability and the system of constitutive elements of tort liability, the particularity of constitutive elements of environmental tort is analyzed, and the damage consequence is still regarded as one of the indispensable factors of environmental tort. The consequences of environmental damage include damage to property rights, personal rights and environmental rights.

Compared with the infringer, the victim is more aware of the loss he has suffered. Third, the inversion of the burden of proof for environmental tort is embodied in the causal relationship between the damage consequence and the tort proved by the infringer. It is difficult for the victim to prove the causal relationship of environmental tort.

This provision of the general principles of the civil law clearly identifies illegality as a constituent element of environmental tort liability, thus excluding cases in which legal pollutant discharge causes damage to the person, making it impossible for the victim to Sue. This practice is contrary to the value of the law and is not advocated. The above differences in legislation should be corrected as soon as possible to ensure the unity of the legal system.

The law of our country uniformly applies the principle of unitary imputing liability in the field of environmental tort, but it is unreasonable to adopt such a "one-size-fits-all" approach in terms of various specific circumstances of environmental tort. The principle of no-fault liability applies to all environmental torts, which takes into account the interests of the vulnerable victims, but increases the burden of tortfeasors accordingly.

It is reasonable and necessary for the law to transfer the burden of proving the causal relationship to the infringer, thus exempting the victim from the burden of proof on the causal relationship.

For ordinary people, they are often confused by the phenomenon of inconsistent legislative norms, which is not conducive to understanding the nature of their own behavior, which is not in line with the law is the characteristics of people's behavior rules, and is not conducive to the realization of the law. Therefore, legislation should be unified as soon as possible to maintain the internal consistency and integrity of the legal system.

First of all, it is in line with the relief function of tort law to insist on the principle of no-fault liability in environmental tort, but it is unreasonable to insist on the principle of no-fault liability in all environmental tort cases, which ignores the typology of environmental tort. Secondly, a comprehensive and in-depth analysis of the characteristics of environmental tort should be conducted to apply the principle of fault liability to some environmental tort cases, so as to timely remedy the rights of the victims without excessively aggravating the responsibility of the infringer.

Therefore, we should learn from some effective practices of developed countries. If the victim proves the possibility of causing damage, causation can be presumed to exist. The second is epidemiological causality. The conclusion that disease is the result of this factor does not conflict with biological discourse; The third is the causal theory of indirect disproof. Therefore, one of the above methods should be selected to define the presumption of causality of environmental tort in China, and the burden of proof should be reasonably distributed among the parties to environmental tort.

The principle of no-fault liability for environmental tort conforms to the requirements of today's social and economic development, which not only protects the rights of contemporary people, but also takes into account the rights and interests of future generations. However, through the above analysis, it is found that there are still some defects and deficiencies in legislation and judicature. Only by proposing solutions to these problems and constantly improving and revising them, can we build a reasonable and complete environmental tort system and make contributions to the construction of socialist rule of law with Chinese characteristics.

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