【作者】 张宇；

【导师】 范海龙；

【作者基本信息】 吉林大学 ， 法律， 2005， 硕士

【摘要】 本文主要从环境侵权的概念和特征、环境侵权民事责任的归责原则、环境侵权的构成要件和环境侵权民事责任的承担方式四个方面进行论述,结合国内外环境侵权的研究成果,试图对我国民法中的环境侵权民事责任谈一些个人看法。环境侵权是指因行为人从事生产生活造成环境污染,使他人人身、财产和其他权益遭受损害,依法应当承担民事责任的行为。环境侵权具有主体实际地位不平等、经济上的合理合法性、间接性、广泛性、潜伏性和长期性的特点。环境侵权民事责任的归责原则,经历了过错责任原则的不断修正和发展,最后过渡到无过错责任原则的过程。无过错责任不考虑侵权人的过错,因果关系是决定责任的关键因素;在无过错责任原则指导下,环境侵权行为人的免责事由包括不可抗力、受害人过错和第三人过错;另外环境侵权无过错责任原则的适用对保险等损害分担制度产生了很大的影响。环境侵权的构成要件,是指构成具体环境侵权所必须具备的条件,也是判断侵权行为人是否应负侵权民事责任的根据,它包括污染环境的行为、损害事实和因果关系三个方面。环境侵权民事责任的承担方式按照我国《环境保护法》的规定,主要是排除危害和赔偿损失。结合我国《民法通则》的规定,排除危害还可以包括停止侵害、排除妨碍、消除危险三种责任承担方式。赔偿损失是承担民事责任的基本方式,可以使受害人得到最直接、最有效的救济。最后,对我国环境侵权民事责任的承担方式提出了完善建议。更多还原

【Abstract】 In the theoretical circle of China’s civil law, research about environmental tort appears and develops as environmental problems become more and more serious. The research work and its application can also improve civil subject’s environmental protection cognition. Therefore, it makes contribution to the balance and harmony of China’s ecology environment. This research paper consists of four chapters. In the first chapter, the author expound the notion and characteristics of environmental tort. Firstly, the notion of tort is defined. By comparison and analysis, the notion of environmental tort is defined: environmental tort is the conduct that tortfeasor should undertake civil liabilities because he damaged the victims’personal rights or property rights through environmental pollution by his productive or daily activities. When clarify the notion of environmental tort, the author don’t approve the ideology that regards environmental rights to be the object of environmental tort, because the range and notion of environmental rights are theoretically debatable and problematic, moreover, they have not been ratified by the legislation. Secondly, the author clarify the legal characteristics of environmental tort. The economic status of tortfeasor and victims is not equal. The conduct of environmental tort is reasonable and legal because the aims of the actors are to develop economy and to improve people’s living level. Thirdly, the tortfeasor do not harm the victims directly by his conduct in specified areas, so, it is indirect and widely existent. The damage can only be found by victims after a long time accumulation, thus, it possesses the potential and long-rang characteristics. Because of the characteristics mentioned above, the confirmation of environmental tort causation owns its speciality compared with other torts. The second chapter argues about the criterion of liability of environmental tort. Criterion of liability, as the core of civil liability, are the basis of all the rules in tort law. Therefore, environmental tort, as a branch of torts, should be under the control of criterion of liability. The first part of this section illustrates three systems of the criterion of liability. The writer think that fault liability and no-fault liability which keep both of dual liability theory to match the infringement conduct method of development trend, have the explicit law according to logical and tight, therefore is also a reasonable. In the second part, the developmental process of criterion of liability of environmental tort is reviewed. The criterion includes four stages, which are fault liability, fault objectivity, fault deduction, and finally no-fault liability. The developmental process on the one hand obviously manifests the developmental features of tort law criterion of liability, on the other hand, shows that the further understanding about environmental tort accelerates the research about tort law. Generally speaking , no-fault liability refers to the circumstance that tortfeasors, regardless of whether they have fault or not, should undertake civil liability for the destruction or harmful results caused by their conduct, as long as law suggests that they should be responsible. The essence of no-fault liability is that if there is damage, then be responsible; if not, then no responsibility. The essence emphasizes the protection of social benefits through law. Therefore, the features of no-fault liability and its reasonable application in environmental tort law are explicated. The last, the exemption premises for no-fault liability is illustrated, including force majeure, victims’fault and a third party’s fault. Force majeure mainly refers to insurmountable natural disasters and war; victims’fault means that the victims cause the occurrence of the environmental pollution whether intentional or serious negligent. If pollution is caused by victims intentionally, the tortfeasor doesnot bear civil liability. If victims are serious negligent, the civil liability of the tortfeasor may be reduced. Fault of a third party means that the pollution or damage are completely caused by a third party deliberately or mistake, then the third party should bear civil liability. The third chapter discusses the essential constituents of environmental tort. The constituents refer the factors of which (and only of which) a tort is composed. They are the basic foundations for undertaking civil liability. The constituents of environmental tort includes in three organic parts: conduct of environmental damage; the damage; the causation. Conduct of environmental damage is conceptualized as environmental polluted or harmful conduct caused by tortfeasor’s social production which outlets industrial waste, radioactive substances, noises, vibration or even electromagnetic wave radiation, etc. the conspicuous difference between environmental tort and other torts lies in the indirectivity between the tortfeasor and the victims. The harmfulness of the conduct presents through media or long-time accumulation. Damage is the improfitable results caused by environmental tort, such as property damage, or mental damage. Causation refers to the objective connection between the tortfeasor’s conduct and the victims’destruction. The causation in environmental tort law is confirmed by deduction principle, which is as long as the victims can prove that they were harmfully affected while the tortfeasor was performing certain act, they were allowed to bring a lawsuit. The victims are not required to prove the causation between tortfeasor’s conduct and the results, which is assumed to be deduced by the judge. In this principle, the method of indirect counter-evidence is applied. The method means that after an accuser has proved that the defendant has conduct causing pollution which harms the accuser, the defendant should bear responsibility for proving the non-existence of the causation. If the defendant can not prove the non-existence of the causation, the defendant should bear corresponding更多还原