Elimination Of Danger And Damages In Environmental Tort

Elimination of danger and damages is one form of the civil liabilities in environmental law.However,it has been neglected in legislation and judicial practice for long time.The liability of elimination of danger and damages was written in article 41 of 1989 environmental law.But this article was deleted in the latest amendment of Environmental Protection Law.The legislator replaced it with article 65 of Tort Liability Law,resulting in the malfunction of elimination of danger and damages liability In fact,as a preventive liability,elimination of danger has incomparable superiority and has played an important role in prevention and control of environmental pollution.First,the importance of elimination of danger and damages liability was analyzed.Then,the status quo of the elimination of danger and damages in judicial practice and the comparative experience in Germany,Japan and the US were explored.It would be better for China to make refinements to the existing rules on elimination of danger and damages.The paper is divided into three parts.Part One is explaining the connotation of elimination of danger and damages.From the perspective of legislation and doctrine,it defined that elimination of danger and damages is in the form of civil liability of environmental tort.Its extension covers "stop the infringement,eliminate the danger and prejudice" within the framework of civil law.On the other hand,the paper traced the historical development of elimination of danger and damages.Finally,it analyzes the difficulties of elimination of danger and damages in China of the application of our plight,less application,low winning rate,single responsibility form,difficult in application and more factors out of cases.Furthermore,it analyzes the reasons for these difficulties,which include imperfect legislation,configure uneven judicial resources and environmental awareness caused by lack of relevant departments.Part Two analyzes responsibility of elimination of danger and damages.It listed the legislation and judicial practice on the responsibility of elimination of danger and damages in United States,Japan and Germany and proposed the case examples to eliminate the danger and damages liability.The author elaborates the relevant laws and regulations of the US and Japan and Germany,summarizing judicial practice,offering learning in the field of legislative and judicial points.It includes the main measures in the interests of the principles applicable,such as Japan’s "stand on the limit," the interests of the United States with economic measures,providing a reference for China to introduce the principle of balancing of interests.In addition,United States,Japan and Germany enriched the specific forms of excluding the danger and damages by means of middle elimination of danger and damagesd and bans,alleviating the responsibility of elimination of danger and damagesd applies.It has brought about references in China.Part Three is dedicated to the construction of the system to eliminate the danger and damages.All in all,at the time when China learn from the advanced theory in other countries and region,we should make full account of the history and current situation in China,creating the tort system for eliminating the danger and damages suitable for China environmental.The author proposed to make an improvement from the legislative and judicial levels.For the purposes of the legislative level,China should make clear the exclude hazards for the constituent elements.Second,as for the rich exclude specific forms of harm responsibilities,the author adopted the forms of completely removing the danger,intermediate exclude harms and temporary injunction.Finally,it introduced the principle of balancing of interests,the interests of measurable criteria to quantify the provisions to prevent the wanton referee.For the purposes of judicial level,it cultivated the professional trial team,enhancing the professional judgment level,promoting the cases concentrated jurisdiction of environmental,establishing linkage mechanism of environmental protection and adequately emphasizing whether it is suitable for removing the damage liability.