The Legalization Of The Tolerance Limit Theory In Environmental Tort System In China

There are two modes, socialized coping mechanism and individualized coping mechanism, to cope with environmental damage. Socialized coping mechanism includes active socialized ways to fill up environmental damage and passive socialized ways to bear environmental damage. Environmental liability insurance and other active socialized ways are in the initial stage in China, and rely on the implementation of individualized liability to work effectively. However, in present, environmental tort relief system tends to strengthen the protection of the rights and interests of victims, and imposes strict restrictions on infringers’ freedom to act by adopting the principle of liability without fault and the presumption of causality. It leads to the tendency of hypercorrection and may result in the abuse of active socialized ways. Passive socialized ways require the public to bear environmental damage to some extent, so it is necessary to link such social duty with public behavior and draw a clear line between the passive socialized ways and individualized mechanism. In other words, the extent of damage that environmental victims have to bear shall be explicit in the cognizance of environmental tort liability. In order to make up for the deficiencies of socialized coping mechanism and individualized coping mechanism at the same time and make it possible for environmental damage coping system to work orderly, the environmental tort relief system shall be reformed in the aspect of constitutive conditions by the introduction of tolerance limit theory.Tolerance limit theory plays a significant role in the environmental tort relief system in Japan. It acts as the criteria of illegality both in theory and in practice. However, illegality is not included in the constitutive conditions of environmental tort liability and the principle of liability without fault is applied. Accordingly, in order to realize the purposes of employing tolerance limit theory, the most reasonable approach is to apply tolerance limit theory in the identification of environmental damage.The determination of tolerance limit is the basic for the application of tolerance limit theory in the identification of environmental damage. The factors to be considered include background environmental pollution level, public environmental pollution level and environmental quality standards. The “limit” of tolerance is the difference between environmental quality standards and the sum of background environmental pollution level and public environmental pollution level. In practice, on the basis of the “limit”, judges are authorized to exercise the right of discretion to decide whether the damage is substantially beyond the tolerance limit of the victim according to the different types of damage, thus deciding whether the damage shall be identified.