On The Ecological Environment Damage Liability's Damage Facts Element And It's Determination

In domestic law cases the meaning of “ecological environment” is basically equivalent to natural environment,and comparing with the meaning of “environment”,the former is closer to the perspective view of ecology and is lean to systematic thought.Ecological environment damage refers to unfavorable changes made to ecological environment as a result of environmental pollution or ecological damage,which could pose threats to the ecosystem's existence and continuance or weaken its service features.Liability for ecological environment damage refers to civil legal obligations that tortfeasor should bear because of his pollution or vandalization that caused damage to the ecological environment.There exist quite some differences between liability for ecological environmental damage and liability for tort in aspects of mechanism of occurrence,their functions and way of undertaking responsibilities.However,domestic juridical practice and legislation tendency embraced the former into the scope of the latter,which makes liability for ecological environment damage a special sort of liability for tort.There are three theories such as interest theory,in defining damage fact of liability for tort,however none of them could bring a standard concept of damage to rate.A reasonable way is to return damage's nature concept to define the damage fact as interest damage.Adopting such a wide concept is helpful to involve different sorts of damage that have existed or may arise in the future.Damage fact in liability for ecological environment damage should be distinguished as damage of essential components and damage of liability scope.The function of damage is to decide whether liability establishes,while the scope of liability and its way should be decided after liability is established.Damage fact is not a sort of specific damage nor reduction of damaged environmental public interest,but reduction of whole public interest.A damage to ecological environment interest may meanwhile benefit other areas of public interest,in this situation the whole public interest may not be reduced.Liability for ecological environment damage has precautionary feature,and significant risk of damaging public interest is an alternative component of damage fact.This “significant risk” includes two aspects,the specific danger and the risk.Regarding to the specific danger,its chance of occurrence and severity of consequence could be relied on estimating the border of significance.While estimating that of risk,the degree of scientific uncertainty should be additionally considered.The determination of damage fact in liability for ecological environmental damage could be spilt into three steps.The first is to tell whether ecosystem's service features are damaged and the degree of damage,and further to determine damage of environmental public interest.The second is to determine that of whole public interest with interest balance method.The last step is to determine the savable possibility of damaged public interest,including possibility and necessity.Under a circumstance that a behavior benefits other part of public interest while damages the environmental public interest,interest balancing analysis is the basic way to judge whether whole public interest is reduced.Application of interest balance should aim at maximizing whole public interest,recognizing increased part of public interest and weighing its importance against damaged environmental public interest by specific cases from two dimensions,order of interest and level of impact,the whole public interest could then be determined as reduced or not.