1. Environmental tort is the cornerstone of environmental law.
Mr. Shi Shangkuan once said that "civil law is the foundation of all laws", and whether we study private law or public law, we should study civil law. When I did my doctoral thesis research in the 1990s, I found that the early cases related to environmental law, whether they were prosecuted on the grounds of neighboring relations (neighboring rights), or by tort or other forms, were mostly developed from civil law or tort law in common law and other related laws. It can be said that environmental law in a special sense is gradually developed and formed on the basis of the adjustment of early tort law and criminal law and the infringement of related rights and interests in the field of environmental protection. In this sense, the system, practice and even theory of environmental law are all "new shoots" in the garden of civil law and "new branches" in the tree of civil law.
Teacher Lu started from civil law and developed into environmental law. Combining system, practice and theory, he constructed a very huge, comprehensive and comprehensive theoretical system. Although this proposition is a small field in civil law, it is the cornerstone of environmental law.
2. Environmental law is an improvement and innovation on the basis of tradition.
Under the tradition of civil law system, it is difficult to put forward an accurate academic definition of environmental tort or environmental tort. Teacher Lu used "heredity and variation" to describe the relationship between environmental law and civil law, which is very similar to what I said: environmental law is a "new branch" of civil law. I have another way of saying that if civil law and criminal law (a combination of single attribute legal norms) are "simple materials" (a pure object composed of a single element), then environmental law is a "compound", which is a combination of multiple attribute legal norms, including civil norms, administrative norms, criminal norms, procedural norms and even international norms. I especially emphasize that compounds are different from mixtures, and the mixture has not changed qualitatively, but once a chemical reaction occurs, it will change qualitatively and form new substances. For example, both hydrogen and oxygen are simple substances, and the mixture is a mixture of hydrogen and oxygen in a certain proportion; Ignite in a certain environment, form compound water, become a new individual, and have new independent attributes and status. Environmental law is not a "mixture" of the environmental field formed by the simple accumulation of traditional legal norms, but a "complex" with special ecological concepts, interest mechanisms and objective laws, and is committed to adjusting social relations in the environmental field.
Since the relationship between environmental law and traditional civil law, constitution, administrative law and international law can be explained from the perspective of biology or chemistry, I think some social relations in the environmental field can be explained and adjusted by the system, practice and theory of traditional law.
Environmental law does not exclude traditional law, but due to the special value and interest mechanism in the environmental field, sometimes the system and theory of traditional law can not play a role and need to be improved. This improvement is still a process of quantitative change. For example, the no-fault liability of environmental tort in the field of pollution, from the perspective of traditional tort law, is developed from the imputation principle of fault liability, which is not out of the scope of civil law and has no qualitative difference. The improvement of traditional laws sometimes still cannot meet the special needs of adjusting environmental and social relations, so it needs qualitative change and innovation. Such as environmental impact assessment system, risk prevention principle in environmental law, etc. Under the principle of risk prevention, even in the absence of scientific certainty and evidence of legal facts, the law should regulate related activities. Another example is the liability insurance and compensation fund system in environmental law, which is beyond the scope of traditional tort law. My research thinking of environmental law is based on the application of traditional law, followed by further improvement and innovation.
3. Pure ecological interests should not be included in the environmental tort system.
Regarding environmental tort or the causes of environmental tort, Tort Liability Law only stipulates environmental pollution, and judicial interpretation includes ecological damage. For the latter, there are disputes from theory to practice. The provisions of judicial interpretation expand the cause behavior, and increase the ecological damage caused by the development and utilization of natural resources on the basis of pollution discharge, such as the decline of groundwater level caused by mining.
After the current Tort Liability Law has made such a breakthrough, what is the object of environmental tort (harm)? If environmental pollution and resource development and utilization violate the right to life, health, property, ventilation and lighting, etc. The subject of rights is individuals, and these special types of private rights should be included in the scope of infringement. I doubt if the damage to the ecosystem itself mentioned by Mr. Lu is also included in the private rights relief system such as tort law, without causing damage to people's private rights such as life, health, property and environmental comfort. The basic orientation of civil law is private law, which regulates the rights and obligations between private individuals. The protection of pure ecosystem public interests other than private interests should be regulated by special laws other than civil law (mainly public law system), and the EU's ecological damage relief is like this.
4. Eliminating environmental infringement is an important remedy.
In the relief of environmental infringement (damage), I think that compared with damage compensation, infringement exclusion is particularly important because of its preventive function. The exclusion of infringement here is different from the traditional tort law. In traditional law, if the infringement continues and occurs repeatedly, and if damages alone are not enough to completely remedy it, the court will support the idea of excluding the infringement. However, regardless of pollution or ecological damage, most persistent and repeated environmental violations are industrial hazards. If the infringement is simply ruled out, the enterprise will close down or have difficulties in operation, and the court will face many problems. This involves civil injunction and supervision of administrative omission. The basic idea of relevant systems, practices and theories is to "measure and re-measure the interests of industrial development and environmental protection", trying to reconcile the contradictions between them in value and interests.
5. Reflections on relevant judicial practice and theory.
Under the leadership of Lu and others, Chinese scholars have made some progress in the theoretical research of environmental resources justice. In addition, in terms of specialization of institutions, personnel and trial mode, China's environmental resources justice has made important explorations and made great achievements. At the same time, we feel that the problems in practice are very complicated, sometimes far beyond the scope of theory and system. At this time, it is necessary to balance the roles and positions among courts, administrative organs, legislatures, the public and enterprises, otherwise, even if we make a lot of efforts, the effect may not be good. It is also possible that the effect of environmental protection is very good, but it affects the healthy development of the rule of law and damages the authority of the court and the rule of law.
Generally speaking, I agree with Mr. Zhang's judgment that civil law, environmental law and other relevant laws play a key and necessary role in solving environmental problems, but they are quite limited. In addition to the general "rules of the game" provided by law, the key to solving environmental problems is the court's bottom, social participation, party and government leadership, science and technology and industrial support.