Principle of Imputation for Environmental Tort
|School||Ocean University of China|
|Keywords||Environmental tort Principle of imputation Non-fault liability principle|
Firstly, the environmental tort is an act that infringes others’ private right and should receive the " punishment" according to the private law. This infringe is done by means of damaging the environment in the production and living activities, which causes personal injury and loss of property. Environmental tort is one of special torts and it is applicable to the special legal rule.The environmental tort principle of imputation is concerned with environmental tort dispute. It is the ground on which the person who has performed the damage should be responsible for his action. Only in this way, can the "loss" be shifted to the person who has damaged the environment. This principle of imputation is the application of the civil tort principle of imputation in the field of environmental tort, and its theory and intellectual support derive from the tort law.Secondly, environmental tort principle of imputation comes into being gradually following the development of practice of environmental tort case. It once took the form of the strict liability in the British law, fault liability presumption in the French law, dangerous liability in the German law and non-fault liability in the Chinese law. Today, non-fault liability has become a common legislation system in environmental tort law all over the world.Thirdly, non-fault liability has remedied the defects of the fault liability. Various proposals have been put forward, such as "recompense doctrine", "dangerous doctrine", "fair doctrine", "doctrine of allocation of risks", and they have shown that non-fault liability is reasonable. But these comments are unable to support the non-fault strongly. I think the fundamental reason that the actors are left unpunished is the environment actor’s "original sin".Fourthly, original sin originated from religion, denoting the evil of our ancestor. Here it means environmental tort actors are bound to cause a certain "crime" of danger to the environment that can not be gotten rid of or dispelled by themselves.The original sin may be traced back to the use of the heat energy tool. Therefore, people who use the heat energy tool or utilize the product produced by the heat energy tool should be classified as those who have committed the original sin.The discovery of original sin of environment contamination has revealed the essence of the environment tort, namely the hazard to the non-public interests caused by the environmental damage. Ownership means the relationship between the certain interests and a certain social group. In the varied environment hazards caused by the environmental damager, only a part relates to specific individual or group, which is the core of the environment tort.The environmental actors commit the original sin in contamination the environment. Therefore, they should be responsible for the consequence of their own environmental behavior. These actors, when they become the environmental infringers regulated in the law, certainly should take legal responsibility for their own environmental behavior.Fifthly, environmental tort is carried out through the damage on the environment. It only includes a part of interests of the whole environmental injury consequence. Non-fault liability can not cover the un-happened environment damage consequences that have infringed others’ interests, nor the environmental hazard consequences that haven’t caused their interests damage. However, the environmental actors should be responsible for their environmental crime consequences. We call this environmental liability non-fault principle "the liability after the liability".The existence of "the liability after the liability" reveals the limitation of the civil law because the civil law and the tort law in the civil law only deal with matters in the field of civil tort. It is unable to deal with the damage of interests apart from the civil interests, although it can help the victims in the environmental infringe get some recompenses.