Study On Application Of Interest Balancing In Environment Tort

Since the reform and opening-up, China has accelerated its pace of industrialization which leads to conflicts of interest all spheres of social life, especially ones in environment tort cases. More and more environment tort cases result in series of social problems. Environment tort and its relief caused by pollution and ecological damage has become a major social problem. The promulgation of Chinese tort law helps the completion of liability clause of Chinese environment tort, and benefits the victim in claiming relief and compensation. As for current related legislation of environment tort, there are weak points in the definition of environment violations, criterion of environment liability, causality, the methods of bearing tort liability, interest balancing. In reality, legal rights of the general public is severely violated, an increasing number of such cases are accepted by the people's court. As for the increasingly environment tort cases, traditional interest balancing theory focusing on social benefit protection to solve crisscross conflicts of interest cannot works well because of its inherent theoretical shortcomings.Currently, the particular problem is that countries like Japan emphasize the need for interest balancing, while Chinese people's courts do not lay stress on strict application and theoretical study of interest balancing when deciding whether to apply to the form of injunction. The verdict of some cases has showed the judgment against application of injunction based on the consideration of relevant factors such as the usefulness and localization of the accused companies. This does not define interest balancing in real sense, but reflects the thought that priority shall be given to economic development. Therefore, interest balancing theory, as a kind of legal analysis methodology, was introduced to China and then draws increasing attention in theory and judicial practice, and is applied in judicial practice. However, the present law has not clearly prescribed the applicability and conditions of interest balancing, which is easy to lead to application disorder. Therefore, there exists strong need to improve China's traditional interesting balancing theory, so as to solve touchy environment tort and to realize legal justice.This paper focuses on some outstanding problems; discuss the application of interest balancing in China's environment tort. Interest balancing theory as a traditional civil theory is mainly applied in judicial adjudication, and shows the judge's discretion. Based on the particularity of environment infringement cases, this paper has researched on the application of interest balancing. The whole paper is divided into four parts. The first part of this paper discusses the logical starting point, which is introduced by analyzing how two similar cases are handled and analyzing the basic conditions of interest balancing applied. The second part mainly discusses the application of interest balancing and legislation of environment tort in foreign countries such as USA, Germany, and Japan, which is beneficial to China. The third part mainly discusses the necessity and feasibility of application of interest balancing in environment tort, which will help the introduction and improvement of interest balancing theory. The fourth part, basing on the three parts above, combining the legislation of environment tort with the judicial practice, analyzes the shortcomings of application of interest balancing in judicial practice of environment tort and provides my own thoughts on these problems. Hope this paper will be helpful.