Mentor on May 25, 2006

The citizens couldn't bear the noise of buildings and complained angrily to "Environmental Protection 1 10". After receiving the complaint, the environmental protection department shall carry out

Field investigation and monitoring. It was found that the project was undertaken by a construction company. The construction company is under construction.

Previously, it was not reported to the municipal environmental protection administrative department. When the environmental protection department went to the scene to investigate, it was found that workers

The ground is under construction at night, and the person in charge of the construction company argued that they did not carry out large-scale construction at night, but

Due to the special needs of technology, concrete pouring can't stop after it starts, even at night.

Work. However, the construction company did not go through the relevant night construction procedures. Monitoring by the environmental protection department, on-site

The daytime noise is 70 decibels, and the nighttime noise is 54 decibels, which does not exceed the construction noise source specified by the state.

Noise emission standard. So the environmental protection department conducted mediation and failed to declare and deal with the construction company according to law.

Do a punishment for starting work at night. However, the noise pollution of construction sites has not been improved, and the broad masses of people live in

People still live in noise pollution. After consulting a law firm, there are 27 households in Tiantong Garden Community.

Bring a lawsuit to the people's court on the grounds that the neighboring right has been infringed, and request the court to order the defendant to stop noise pollution.

Compensate for the loss. After accepting the case, the people's court found that the noise emitted by a construction company had an impact.

Meet the national noise emission standards for building noise sources, but exceed

The regional standard limit of quasi) actually constitutes environmental noise pollution and infringes on the plaintiff's neighbor.

That's right. According to Article 83 of the General Principles of Civil Law, the defendant was sentenced to take measures to eliminate noise pollution and compensate the plaintiff mental damage compensation 200 yuan.

[Legal issues]

(1) Prior declaration system.

(2) Prohibition of night construction system.

(3) Criteria for judging environmental noise pollution.

[Legal basis]

(1) Articles 2, 29 and 30 of the Law on the Prevention and Control of Environmental Noise Pollution.

(2) Noise limit of the construction site.

(3) the standard of urban regional environmental noise.

[Jurisprudence and Legal Analysis]

This case is a typical case of noise pollution in the building environment. The noise pollution in the construction environment is

Refers to the sound that interferes with the surrounding living environment during construction. In order to prevent the environmental noise of building construction

Acoustic pollution, China.

(1) Prior declaration system. This is put forward according to the characteristics of construction in a certain period. In the city.

In the urban area, the mechanical equipment used in the construction process may produce environmental noise pollution.

The construction unit must report to the environmental administrative department at or above the county level before the project starts 15. Report to the superior

The contents include the project name, construction site and time limit, possible environmental noise value and

Measures to prevent and control environmental noise pollution. Article 29 of the Law on the Prevention and Control of Environmental Noise Pollution stipulates this.

Settings.

(2) Prohibition of night construction system. In urban areas where noise-sensitive structures is concentrated, night construction is prohibited.

Carry out construction operations that produce environmental noise pollution. "noise-sensitive structures" refers to hospitals, schools,

Institutions, scientific research institutions, residential buildings and other buildings that need to be kept quiet, "noise-sensitive buildings concentrated area"

Refers to medical areas, cultural, educational and scientific research areas and areas dominated by institutions or houses. But in addition to the following three situations,

Foreign countries: emergency repair and rescue operations; Due to the requirements of production technology; Due to special needs, it is necessary to work continuously and hold it.

There is a certificate from the people's government at or above the county level or the relevant competent department. When working at night, you must give a notice nearby.

Residents of. In this case, the defendant construction company failed to report to the municipal environmental protection department according to law before the start of construction.

During the construction at night, it was not announced to the nearby residents, which violated the above provisions, and the environmental protection department was responsible.

The punishment is in line with the law. This is stipulated in Article 30 of the Law on the Prevention and Control of Environmental Noise Pollution.

Settings.

The focus of the dispute in this case is whether the defendant's construction company constitutes environmental noise pollution.

According to the second paragraph of Article 2 of the Law on the Prevention and Control of Environmental Noise Pollution, the term "environmental noise pollution" as mentioned in this Law refers to

The environmental noise generated exceeds the national environmental noise emission standard and interferes with the normal life of others.

Work-study program phenomenon. This article gives the definition of environmental noise pollution and points out the composition of environmental noise pollution.

Two necessary conditions of pollution: First, the emission noise exceeds the national environmental noise emission standard. The second is emissions.

Noise interferes with the normal life, work and study of others. Environmental noise emission standard refers to the environment of the State Council.

The protection department shall control the noise sources discharged to the surrounding environment according to the national acoustic environmental quality standards and the national economic and technical conditions.

Maximum limit of noise emission. At present, China's environmental noise emission standards mainly include:

Industrial boundary noise standard),

(Limit value of railway boundary noise and its measurement method),

In this case, the defendant did not exceed

Does not constitute environmental noise pollution. Therefore, the environmental protection department cannot impose a fine on it, nor can it levy sewage charges.

Fees, disputes can only be mediated. .

However, in addition to environmental noise emission standards, China also has acoustic environmental quality standards.

Quasi. Acoustical environmental quality standard refers to the environmental protection department of the State Council, according to legal procedures for a variety of work.

The maximum limit of environmental noise in this area. It is the basis for formulating environmental noise emission standards,

It is also an index to measure whether there is environmental noise pollution in an area. At present, China's main provisions are

Regional environmental noise standard). according to

Garden community belongs to the residential, cultural and educational institutions, and its environmental noise quality standard is 55 o'clock in the daytime.

Bei, 45 decibels at night, the noise of the defendant's construction site is 70 decibels during the day and 54 decibels at night.

However, it violates the environmental noise standards in urban areas. Therefore, judging from the actual situation of this case, the defendant is guilty.

It does not cause environmental noise pollution, which obviously does not conform to the facts, and it is difficult to convince residents who are disturbed by noise.

People.

Because the current definition of "environmental noise pollution" is not accurate,

This has brought great difficulties to the solution of the case. In order to protect the legitimate interests of these residents, the court based on

The neighboring parties of real estate shall conduct transactions in accordance with the principles of favorable production, convenient life, solidarity and mutual assistance, and fairness and reasonableness.

In the spirit of fairness and rationality, correctly handle the adjacent relations in water interception, drainage, transportation, ventilation and lighting. give

If the other party causes obstruction or loss, it shall stop the infringement, remove the obstruction and compensate for the loss.

It is right to deal with disputes. Because this provision does not clearly list the impact of noise on the neighboring parties of real estate.

Ring, but the word "etc" should be understood to include noise, radiation and other possible future effects.

The behavior of neighboring parties.

[Scholar's suggestion]

The noise emitted by the pollutant discharge unit conforms to the environmental noise emission standard, but it does interfere with the normal life of others.

It often appears in real life. Because article 2 of the law on the prevention and control of environmental noise pollution gives "environmental noise pollution"

The definition is not considered comprehensively enough, which makes many difficulties in specific law enforcement. In fact, whether the environment is polluted,

Not by whether the polluter's emissions exceed the emission standards, but by whether the pollutant emissions make the local.

The environmental quality is lower than the environmental quality standard applicable to this area. Actually,

In this case, correctly handling environmental noise pollution cases is conducive to protecting the rights of victims, but it also exists.

Some questions. For example, the General Principles of the Civil Law stipulates that "the neighboring parties of real estate" apply to construction units and residents.

The relationship between them is not very accurate. Therefore, the most fundamental solution is to amend the Law on the Prevention and Control of Environmental Noise Pollution.

Regarding the definition of "environmental noise pollution",

Improve noise pollution laws and regulations.

Case analysis of compensation for environmental pollution damage

Feng Qijiang

Keywords: case analysis of environmental pollution damage compensation

full text

Case analysis of compensation for environmental pollution damage

Feng Qijiang Pan Jinhai

I. Introduction

After the implementation of the contract responsibility system of joint production in the vast rural areas of China, many farmers contracted fish ponds to support their families and develop the local economy in view of the large local water surface in the mountainous areas of southern Anhui. Zheng Tao is a local individual farmer, and has contracted about15mu fish pond in recent years. Although it is not a big farmer, it also gains a lot every year. At the end of last year, I wanted to have a good harvest, but I never thought that a large number of fish died in the fish pond I contracted. Zheng Tao gaped at the large fish pond he had painstakingly managed for many years, and his heart ached unceasingly. ...

Second, the case

On February 20th, 2003, at 65438+, a farmer named Zheng Tao found that the fish pond he contracted appeared floating head in winter, and the fish died. After investigation, it was caused by the rupture of urban sewage pipeline and the diversion of sewage to fish ponds. Zheng Tao immediately decided to fish first and negotiate with the local municipal company. On October 3rd, 2004, the local municipal company began to rebuild a sewage pipeline. During this period, some fish died and some fish gave off an unpleasant smell because sewage entered the fish pond. Due to the long drought and no rain, Zheng Tao was disinfected with bleach and quicklime on February 10 and February 14, 2004. After the water in the fish pond became clear, he bought a batch of fish fry, but the fish fry in the fish pond were polluted again and died.

Zheng Tao believes that domestic water pollution caused serious odor in 65438+100000 Jin of finished fish, which had to be sold at a low price, and another 3000 Jin of fish died of floating head. Calculated by 2 yuan per catty, the fish lost more than 20,000 yuan, the fry lost 7,000 yuan, and the total economic loss was 39,992 yuan. To this end, Zheng Tao provides witnesses to prove that there are more than 500 kilograms of dead fish every day during the pollution period; Another witness proved that the polluted fish was bought for one yuan a catty because of its peculiar smell; The inspection records of the local fishery supervision and management station prove that the loss of fish is more than 30 thousand yuan; The environmental monitoring report of the local environmental monitoring station proves that the water quality of the fish pond has been polluted; Another statement issued by Huaxing Company proves that the sewage pipe is used by the municipal company. Therefore, Zheng Tao sued the local court, demanding that the local municipal company compensate for various losses of 39,992 yuan.

Third, the gist of the first-instance judgment

The court of first instance held that the outlet of the urban sewage pipeline managed by the local municipal company is located on the north side of the playground of No.2 Middle School, and the urban sewage is discharged into the sewage pool on the north side of the playground, and then flows from the open ditch on the west side of the sewage pool to the tributary of the Yangtze River. A few years ago, Huaxing Company optimized the environment during the construction process, and turned the sewage open ditch into a culvert. At the end of 2003, sewage was injected into Zheng Tao fish pond due to the rupture of the sewage pipe in the back canal, which led to the deterioration and death of fish in the fish pond. Although the plaintiff has the fact of damage, there is no conclusive evidence to confirm the specific amount of compensation, so it is impossible to determine the amount of compensation. Therefore, the judgment rejected the plaintiff's claim.

Zhong Tao refused to accept the appeal, saying that the court of first instance admitted the facts of damage and accepted the testimony of relevant witnesses, but it was difficult to determine the amount of compensation, and the appeal demanded that the sentence be changed according to law. On February 1 1, 2004, I applied in writing for the stationmaster of the local fishery supervision and management station and others to conduct on-the-spot inspection in the fish pond, and made detailed inspection records, and determined that the loss of our household was 32,992 yuan. According to the Inspection Record of Fishery Supervision and Management Station, since February 20, 2003, the water surface of the pond contracted by this farmer is about 15 mu. According to the field investigation, 5,000 Jin of finished fish was seriously smelly and inedible due to industrial wastewater pollution, resulting in an economic loss of 32,992 yuan.

The local municipal company argued that the evidence of fish damage submitted by Zheng Tao could not identify its loss status. Although there were damage facts, there was no causal relationship. In addition, the sewage pipeline was built by Huaxing company, and it was not explained to the relevant departments during the construction, so it could not be included in the municipal management. This pollution has nothing to do with the municipal company, and the main body of infringement is the sewage unit. Even if the pollution source spreads due to the negligence in the management of the municipal company, it can only reduce the responsibility of the pollutant discharge unit, but it cannot be exempted from its responsibility.

Fourth, the gist of the judgment of second instance

The court of second instance held that the local municipal company was responsible for the pollution discharge within its jurisdiction, and should be liable for compensation if its sewage pipeline ruptured and caused damage to others. After the fish pond was polluted, Zheng Tao applied to the local fishery supervision and management station for an inquest into the pollution of the fish pond, and estimated the loss according to the average output of the local similar fish pond, which was objective and true. The municipal company denied it in the absence of evidence to the contrary, and the court of first instance refused to accept it. The evidence was improper and should be corrected. Regarding Zheng Tao's claim that the second loss is 7,000 yuan, he should bear the losses caused by blindly buying fry and stocking them without completely solving the pollution of fish ponds. On June 26th, 2004, 10, the court of second instance changed the judgment: the original judgment was revoked, and the municipal company compensated Zheng Tao fish pond for the loss of 32,992 yuan within 10.

Comments on verbs (abbreviation of verb)

In civil compensation cases, environmental pollution is a special tort. This case is special because it is difficult to determine the causal relationship of environmental pollution. To determine the compensation for environmental pollution damage, we must first determine the causal relationship between environmental pollution behavior and the consequences of pollution damage. Environmental pollution damage often involves a certain scientific and technological content, which is usually not mastered by ordinary people, so it is difficult for ordinary people to make an intuitive judgment on this causal relationship. Therefore, the law of such cases stipulates the inversion of the burden of proof. "the Supreme People's Court on the application of

In this case, the plaintiff contracted a large number of finished fish in the fish pond and died. Witnesses have proved that when the pollution happened, the number of dead fish was as high as 500 Jin and as low as 200 Jin every day, and eyewitness testimony said that because of the fishy smell, others bought it at a low price of one yuan A Jin. The local fishery supervision and management station also conducted on-site inspection, which proved that the fish lost more than 30,000 yuan. It can be said that the plaintiff has fulfilled the burden of proof and proved that he has suffered huge losses, which constitutes the basis of litigation and the premise of claim. Personally, it is not easy for the victim to do this, and the judge should not ask too much for the standardization of evidence. In judicial practice, we should not only consider the cultural knowledge, legal literacy and production and living habits of rural farmers, but also consider the horror of pollution and the urgency of dealing with problems. As long as there is preliminary damage, the defendant will provide evidence as to whether it was caused by the defendant. The principle of "inversion of burden of proof" applies to environmental pollution damage compensation litigation. The court of first instance in this case adopted the principle of "whoever advocates gives evidence" and found that the specific amount of the plaintiff's claim was not confirmed by conclusive evidence, but the judgment rejected the original application and demanded that the evidence be standardized. It is more objective and fair for the court of second instance to estimate the loss according to the records of the local fishery supervision and management station and the average of the average output of the same local fish pond. Existing losses should be compensated. Article 124 of China's General Principles of Civil Law stipulates: "Whoever violates the state's regulations on environmental protection and pollution prevention and control, pollutes the environment and causes damage to others shall bear civil liability according to law." Article 4 1 of China's Environmental Protection Law stipulates that "those who cause environmental pollution have the responsibility to eliminate the hazards and compensate the units or individuals directly damaged". China's water pollution prevention law also has similar provisions. Articles 55 and 56 of this Law stipulate that units that cause water pollution hazards have the responsibility to eliminate the hazards and compensate the units or individuals that have suffered direct damage; If the water pollution loss is caused by the third party's intention or negligence, the third party shall bear the responsibility; The water pollution loss is caused by the victim's own reasons, and the pollutant discharge unit is not responsible; If water pollution losses cannot be avoided due to irresistible natural disasters and reasonable measures are taken in time, the liability shall be exempted.

In this case, the sewage pipe of the local municipal company is broken, and the sewage pipe is used by the municipal company. Due to its management negligence, pollution sources spread to fish ponds, causing harm to people. The court ruled that the municipal company should bear the responsibility. The subordinate unit of the municipal company is the Municipal Construction Committee, which belongs to the statutory public welfare organization. In judicial practice, the damage compensation of non-profit organizations is regarded as civil compensation in the general sense. However, the author believes that this kind of service public welfare company is not a general company and cannot simply apply private law. The "behind-the-scenes government behavior" of these non-profit organizations is self-evident and an "outstretched public hand". The damage caused by the infringement of non-profit organizations includes the nature of state administrative compensation. The complexity of real life, the diversity of administrative management and the difficulty of unification of administrative subjects often make administrative compensation and general civil damage compensation cross each other. But in any case, environmental pollution liability belongs to the category of strict liability, and it is no-fault liability. Only when the defendant proves that the pollution is caused by force majeure or by the victim and the third party can he be exempted from the liability for damages.

In fact, in this case, who is the real polluter? Need further clarification. The municipal company assumed the responsibility of manager, and in order to eliminate the harm, the sewage pipeline was set up again. But the real polluters are nearby enterprises. The pollution source lies in domestic sewage or industrial wastewater, not in the drainage ditch itself. If it can really be found out which enterprise or enterprises discharged sewage beyond the standard, which caused the fish to die, then the real sewage unit should be responsible for compensation. Of course, the defendant still bears the burden of proof, and the defendant must prove that there is no causal relationship and be exempted from liability.

(The party in the text is a pseudonym)

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