On The Application Of Restitution In Environmental Pollution Tort

As the society develops rapidly,environmental pollution is becoming more and more serious.In addition to causing environmental damage,environmental pollution also causes damage to the subject's personal rights and interests,property rights and interests and other civil rights and interests.In the case of environmental pollution tort,if the damaged environment cannot be restored to its original state,the rights and interests of the victim are often not fully relieved.The victim wants the defendant to assume responsibility for restitution,and relieve the right and interest that has been damaged by restoring the damaged environment.However,compared with general civil torts,environmental pollution tort has special characteristics.The application of restitution in environmental pollution tort is difficult.It is less applicable in related cases,and the damaged environment in most cases is not restored.The continuation of the damaged environment not only does not provide adequate relief for the rights and interests of the victims,but may also cause new damage to the rights and interests of the victims and other civil subjects.When the number of victims is large,it may also trigger mass incidents,which will bring serious impacts to the society.The specific application of restitution is in a difficult position.The reason is that the application of restitution in environmental pollution tort is not clearly guided by legislation,judicature or academic theory.Tort Law of the People's Republic of China provides for the tort liability method of restitution,and the judicial interpretation clarifies that restitution can be applied in environmental pollution tort.However,there are no further regulations for specific operating standards such as judgment criteria,applicable conditions,restored objects,restored standards and applicable methods.The academic community still has controversy about the functions and scope of application of the restitution in the process of application,and even proposed to replace the restitution with environmental restoration,which is an independent liability mode.Author believes that it should return to the traditional theory of civil law,analyze the application of restitution in environmental pollution tort,and propose improvements based on it.First of all,through the combing of relevant cases,this paper analyzes the case's litigation request,legal facts and judgment reasons,and explores the specific problems of the application of the restitution in environmental pollution tort from judicial practice.Then,on the basis of finding out the applicable dilemma,theoretical analysis is carried out on the application of the restitution,clarifies its specific manifestation in environmental pollution tort as environmental remediation liability mode,analyzes the particularity and value of its application,its connotation and boundary,and the different situations faced when applicable,clarifies the theoretical basis for its application.Finally,based on the results of theoretical analysis,from the five aspects of judgment criteria,applicable conditions,recovery standards,implementation forms and specific programs,this paper puts forward the suggestions for improving the application of restitution in environmental pollution tort,with a view to providing reference for future legislation and judicial practice.