Environmental tort is a special kind of civil tort, and the elements of its civil liability are closely related to those of general civil tort. Based on a variety of theories and viewpoints, there are two main opinions on the constitutive elements of tort liability: one is the theory of four elements, that is, the basic constitutive elements of tort liability are four: 1? Illegality of behavior; 2? Damage; 3? Causality between wrongful act and damage; 4? The perpetrator is at fault. The second is the theory of three elements, that is, there are three kinds of tort liability: 1? Fault; 2? Damage; 3? Causality between negligence and damage. China's civil law theory has always believed that tort liability consists of four elements. Although the specific problems of each element are not controversial, the theory of four elements has become a universal theory. In my opinion, the theory of three elements of tort liability is more reasonable.
1. Illegality cannot be a constituent element of civil liability for environmental tort.
Paragraph 2 of Article 106 of the General Principles of Civil Law stipulates: "A citizen or legal person who infringes upon the property of the state or the collective or infringes upon the property or person of others through fault shall bear civil liability". There are only three elements of responsibility that can be deduced from this provision: 1? Fault, that is, the fault of citizens and legal persons in carrying out tort; 2? Damage, that is, property or personal damage; 3? Causality, that is, causality between fault and damage. It goes without saying that there is a contradiction between the legal provisions on the constitutive elements of tort liability and the general theory. First, the law does not regard illegality as an important element of tort liability; Secondly, the causal relationship is defined as the causal relationship between fault and damage, not the relationship between illegal behavior and damage. The explicit provisions of the law seem to conform to the theory of three elements. This shows that the existing theory has no legal basis. Therefore, the author believes that even though some legal provisions may lack sufficient theoretical thinking in legislation, if the literal interpretation of these provisions is reasonable in theory, reasonable theories should be used as the basis for interpreting or understanding legal provisions, so as to improve legal interpretation and guide trial practice.
China's civil law theory has always regarded "illegality" as a constituent element of tort liability, which seems unreasonable. On the one hand, it does not conform to the current civil law, on the other hand, it is not conducive to operation, and it is easy for many injurers who cause harm to be exempted from responsibility because it is difficult to confirm the illegality of their actions. This is especially obvious in environmental infringement. When determining whether the behavior of the parties is an environmental pollution behavior, is it only a violation of the standards prescribed by law that counts as an environmental pollution behavior? There are contradictions between the General Principles of Civil Law and the Environmental Protection Law. According to Article 124 of the General Principles of the Civil Law, environmental pollution should be a violation of the state's regulations on environmental protection and pollution prevention, but Article 1 of the Environmental Protection Law does not. Just like a common river pollution case, several enterprises discharge pollutants into the river at the same time according to the standard, resulting in the death of downstream fry. Who are the criminals here? Can this situation be said to be not environmental infringement? It can be seen that illegality is not necessary in environmental infringement. How to solve the contradiction between Article 124 of General Principles of Civil Law and Article 1 of Environmental Protection Law? The author believes that the "national regulations on environmental protection and pollution prevention" mentioned in Article 124 of the General Principles of Civil Law refers to the basic principles, rules and systems determined by China's environmental protection law and related laws and regulations, rather than a specific pollutant discharge standard; It solves the problem of law application rather than code of conduct, that is, all cases that pollute the environment and cause damage to people should apply special laws and regulations such as environmental protection law; Whoever pollutes the environment beyond the standard and causes damage to people will undoubtedly bear civil liability and corresponding administrative and criminal liability; Even if the sewage discharge does not exceed the prescribed standards, it should also bear civil liability for polluting the environment and causing damage to people. To sum up, in the elements of civil liability for environmental tort, illegality is only a part of the nature of behavior, and it is not necessarily extensive. Therefore, it can't be a constituent element of civil liability for environmental tort.
Second, the elements of civil liability for environmental tort
According to the theory of constitutive elements of tort, the author advocates that there are three constitutive elements of civil liability for environmental tort: 1, the act of polluting the environment; 2. damage; 3, the causal relationship between environmental pollution behavior and damage.
(a) the behavior of polluting the environment
The behavior of polluting the environment has the characteristics of complexity, gradualism and diversity. Among the constituent elements of "environmental pollution", as mentioned above, illegality is generally not a necessary condition for pollution compensation, but this factor will affect the determination of compensation amount. As compensation for environmental pollution damage, environmental pollution behavior is generally illegal, and it is not illegal under special circumstances. Therefore, the principle of no-fault liability should be applied, and it is suggested that the provision that "those who do not violate the law and cause damage to others should also bear civil liability" should be added in Article 124 of the General Principles of Civil Law. Because the compensation for environmental pollution damage adopts the principle of no-fault liability, it only mentions "environmental pollution behavior" in its civil liability elements, but does not mention "fault", which should be distinguished from general tort. To sum up, the principle of no-fault liability of environmental protection law is mainly due to the following reasons: First, environmental pollution is the product of modern industry, even if the enterprise is not at fault, it will cause damage to others. The consequences of pollution not only cause property or economic losses, endanger human health and life, but also threaten human survival and social development. Secondly, due to the high specialization and complexity of modern enterprises and the limitation of the development level of human science and technology, it is difficult for victims to prove the fault that caused the damage. Third, starting from the principle of fairness and justice of the law, most of the actors of environmental pollution are enterprises. In a sense, the profits of polluting enterprises are based on polluting the environment and causing certain harm to others. Therefore, it is fair and reasonable to apply the principle of no-fault liability and let the injurer compensate the victims for their losses. At the same time, with the development of modern insurance industry, enterprises can transfer risks to insurance companies by purchasing insurance, which not only transfers their own liability for compensation, but also ensures that victims can get enough compensation. Fourthly, the application of the principle of no-fault liability in the environmental protection law is not only conducive to protecting the legitimate interests of victims, but also can promote and urge polluting units to take active measures to prevent environmental pollution and improve the environment on which human beings depend for survival and development.
(2) Damage
Damage in environmental pollution is personal injury, death and property loss caused by the victim's contact with or exposure to the polluted environment. Environmental pollution causes damage to people, and the damage consequences are the same as those caused by other tort, but it also has its particularity. * * * sex is manifested in the fact that it is the consequence of infringing on legitimate civil rights and interests, and it is objective, authentic, certain and legally remedial. The particularity of the damage includes: 1? Latency, the damage consequences caused by most torts only appear when or shortly after the damage occurs, but the damage caused by environmental pollution is not always the case. Only part of environmental pollution causes damage to people quickly, while most environmental pollution causes damage to people, especially to others' health, only after a long incubation period. 2? Extensive. In most cases of damage caused by environmental pollution, the damage has extensive characteristics, which are manifested in a wide range of polluted areas, victims and civil rights and interests. As for the identification and compensation of damage facts, judging from the trial practice, environmental pollution has caused damage to people, both property damage and personal injury, but at present, most cases of environmental pollution causing damage to others are related to personal injury and its compensation. Therefore, the compensation for environmental tort damages will be significantly expanded in scope, content and amount. (3) Causality
Traditional civil liability requires that there is a causal relationship between illegal acts and damage results. Because environmental civil tort does not take illegal acts as constitutive elements, it should be a causal relationship between harmful acts and damage results, which is a necessary condition for the actor to bear civil liability. However, it is difficult to identify this causal relationship in compensation for environmental pollution damage. Therefore, in the trial practice, the direct and strict determination of causality should be replaced by the principle of presumption of causality.
Presumption of causality, that is, when determining the causality between pollution behavior and damage results, if there is no direct evidence of causality, causality can be inferred through indirect evidence. The application of presumption principle is determined by the complexity of this causal relationship. First, the forms of environmental violations are complex and diverse, and the same harmful consequences may be caused by several different behaviors, while most of the environmental harmful consequences are completed by the process of environmental violations and pollutants. The latter should be regarded as a legal continuation of environmental violations. Environmental violations are not completed immediately, but are continuous and gradual, which makes the implementation of illegal acts and the development of harmful consequences have a long time interval, and the causal relationship is not close and hidden. Secondly, due to the limitation of manpower, material resources and science and technology, it is beyond our power to understand the relationship between environmental violations and harmful consequences. If strict and scientific proof of causality is still needed to deal with environmental cases, the verification of causality according to the usual litigation procedures will delay the litigation time and make the victims unable to get timely compensation. Third, when determining the causal relationship, there is often a phenomenon of multiple causes and one effect. For example, several factories discharge pollutants into the same river, and the river water is polluted, resulting in diseases among residents who drink the river water. In this case, it is difficult or impossible for the victim to prove who is the perpetrator. He only needs to prove the identity of time, region and harmful substances respectively, and he can establish the presumption of * * *. This presumption allows the defendant to disprove, that is, if any defendant can prove that he did not discharge pollutants at the same time and place, or that the pollutants he discharged were another substance, he will not bear tort liability. The person who bears the tort liability of * * * shall be liable for compensation in proportion to the amount of sewage discharged.
It should be pointed out that causality in civil law cannot be confused with causality in philosophy. Materialist dialectics holds that all phenomena in the world are interrelated and mutually restricted, and one phenomenon is bound to be caused by another phenomenon under certain conditions. The phenomenon that causes other phenomena is the cause, and the phenomenon caused by the cause is the result. The inevitable connection between nature and society is philosophical causality. However, since the purpose of causality in civil law is to determine responsibility, the principle of causality in philosophy is meaningful only when it is applied to this particular occasion. As an objective social phenomenon, damage itself is placed under complicated subjective and objective reasons. Only by looking for a meaningful reason to determine the tort liability among many reasons can it rise to the cause of civil tort, which has the significance of the constitutive requirements of tort liability.