The Research On Causation Presumption In The Tort Of Ecological Environment

With the rapid development of industrialization, the tort of ecological environmental happens more and more, which has become an inconvenient social problem. However, the tort of ecological environment is different from general infringement cases, and it has its characters. First, the parties’status is inequality. One party is often powerful enterprises, but the other party is just the ordinary people. Second, the infringement itself is complex. Violation is the result of a long-standing effect, and the influence may suddenly appear. The tort may indirectly affect the personal and property through certain media. Third, the infringement has high technological factor. Therefore, for the affirmation of causation of the ecological environment infringement, the traditional causality theory exposes its defects. In order to deal with this problem, the countries in the world, especially Japan proposed the theory of causation presumption and a number of different ways, including probability theory, epidemiology causality and indirect counterevidence theory, and each theory has the advantages and disadvantages. For the application of theory of causation presumption, first, three conditions are required to apply this theory, including the existence of basic facts, probable contact of the facts and presumption fact, and no evidence to overthrow the basic facts and presumption fact; to apply this theory also follow three steps, the first, the victim prove based facts; second, presumption; third, the offender rebut. For the present situation of the tort of causality presumption of the ecological environment in our country, the system is not written in the legislation, but the legislature took the difficulty of causality proof in tort of ecological environment in consideration and the ways of causation presumption have been tried but not mature in practice. Then, there are obstacles of applying causality presumption theory in our country, including disharmony with existing systems, the unclear definition ecological environment tort, lack of systemic research of causality presumption theory and environmental law personnel and so on. Finally, according to the applicable situation and the existing obstacles of causality presumption in our country, some perfecting suggestions are proposed. Including, causality presumption system should be ruled and redesigned in the legislation; the standard of proof should be multi-level; the applicable conditions and scope of causality presumption theory should be limited and the judicial personnel of the ecological environment tort cases should be adjusted.