On The Application Of Restitution In Environmental Tort

With the rapid development of economy and society,the increasingly serious environmental pollution problems,the perfection of the legal system is the key step of environmental pollution control,recovery is undisturbed in environmental tort is an important means of private law to fulfill the responsibility to protect the environment,but the recovery rules in undisturbed environment right infringement in complex.Environmental tort is a special tort that the actor pollutes the environment,and then infringes the personal rights and interests of the clear civil subject,and assumes no fault liability according to law.Environmental tort pollutes the environment and infringes the civil rights and interests.Therefore,the actor should not only fill in the damage of the personal and property of the civil subject,but also bear the responsibility of restoring the original state of the ecological environment for the pollution damage under certain conditions.This article is divided into three parts:In the first part,the three problems of environmental tort liability are expounded.First,combing the disputes between civil law scholars and environmental jurisprudence in the connotation of environmental tort,based on the connotation of environmental infringement,we propose that environmental tort should be based on tort analysis.Secondly,it analyzes the legitimacy of responsibility for environmental pollution in environmental tort liability,and establishes clear environmental private rights and interests in private cases,and private law means to protect private rights and interests in accordance with legal principles.Finally,the elements of environmental tort are analyzed one by one.The second part,mainly demonstrated the necessity of restoring the original form in the environmental tort.The application of restitution in environmental tort can maintain the integrity interests of the infringed party,ensure the continuing function of the injured right,protect the environment,and have the value that other relief means do not have.It also puts forward some suggestions on the specific application of therestoration of the original situation in the environmental tort.First of all,it is clear that the main body of the environmental tort can claim the right of restitution.It is theinfringed party and the public interest litigation body.At the same time,when the court considers it necessary,it can issue judicial advice to the public interest litigation subjects.Secondly,it puts forward the "exception rules of economic rationality" and the way of decentralization through the way of environmental liability insurance.Then,on the path of restitution technology,we put forward the national environmental quality standard as the reference and the protection of the rights and interests of civil subjects as the purpose.The professional environmental institutions should formulate the rule of restoring the "original status" and "the best available technology" according to the actual situation.In addition,we also put forward other ways to recover the original form,such as public welfare work,partial restoration of the original form,the continuous restoration of the original form and the money compensation.Finally,in order to avoid the liability that the infringer should not assume,balance the freedom of action and responsibility,and restore the original status in the application of environmental tort,we should establish force majeure and victim's intention as the cause of defense.