The Research Of Environmental Tort Constitutive Requirements

With rapid economic and social development, the bearing capacity of word environment have been a challenge to human beings. In modern society, serious environment and ecological problems lead a badly circumstance which act like endlessly environmental tort lawsuit. Because of the specific characteristics of environmental tort and its constitutive requirement, the issue of environmental tort maintain a huge difference with the traditional tort issue. At this moment, the theory of environmental tort constitutive requirement is also debated extensively and deeply all around the word. However, there are three different parts of the issue seem more important as follows:the presence of illegal constitutive requirement, whether fault elements should be count for constitutive requirement, and the cognizance of the causal relationship. On the basis of the theory at home and abroad for reference, the writer analysis environmental tort constitutive requirement. This paper mainly contain the following four parts.The first part is about the abstract introduction of environmental tort. Though introducing the concept of environment, environment right and environmental tort in order to achieve the purpose of the preliminary learning and understanding of environmental tort. In contrast to previous scholars on the definition of environmental tort, come up with the affirm of environmental tort should be considered in three aspects. Besides, based on the analysis of environmental pollution, it can be divided into two very different parts: substantial pollution and artificial pollution, these two kind of pollution also should be treated differently on the constitutive requirements. Than introducing the particularity of environmental tort, because of the differences between environmental tort and traditional tort, the constitutive requirements should be different from traditional tort.The second part mainly introduces the legislative practice of environmental tort constitutive requirements under the foreign law circumstance. As we all know that, some developed countries, such as Japan, Germany and America, started really early and have great achievements on the study of environmental tort and the modification of the traditional tort constitutive requirements. The developed countries format the theory of the constitutive requirements of environmental infringement. On the one hand, in the imputation principle, mostly in the combination of no-fault liability and fault liability, to balance the environmental of the conflict between protection and normal operation of enterprises. On the other hand, most countries adopt causality presumption on the causal relationship issue. Based on the study, they form some proof theories as follows:causal relationship theory, epidemiology causality theory, indirect counterevidence prove theory.The third part is the most important part of the whole paper, detailed discussion on the environmental tort constitutive requirement of different aspects. Firstly, introducing the most impassioned controversy of illegality about environmental tort. Using two cases get the support and against view on the topic, than analysis of the illegality to get the view of myself. Then introducing the development of process on environmental tort, doctrine of liability of liability fixation which started from the principle of fault liability to no-fault liability. Finally, introducing the causality of environmental tort theory, including the probability causal relationship, epidemiology causality, indirect counterevidence theory and comment the advantages and disadvantages of these theories.The last part about this paper raising some perfecting suggestions on the theory of environmental tort about our country though the constitution of environmental tort at home and abroad. On the cognizance of causality, inevitability of causality theory and burden of proof inversion principle in our country have some disadvantages in the practice of environmental tort. So this should refer to foreign relevant theory of causation presumption, and use different cases of diversified proof method. When come to the imputation principle, artificial pollution suit for fault liability, otherwise, the substantial pollution suit for no-fault liability. Though this method can be promote the unity of theory and judicial practice.