A Study On The Tort Liability Of The Land User For Soil Pollution

With the development of economy,environmental pollution is inevitable,which brings a lot of environmental tort problems.As a part of environmental tort,soil pollution tort shows a different liability system from other types of tort.According to the law on the prevention and control of soil pollution,when the person responsible for soil pollution cannot be identified and the land-use right holder fails to perform his obligations under the law on the prevention and control of soil pollution and causes damage to others,he shall bear the tort liability.As a kind of creation of legislation,the land-use right holders who have not carried out the soil pollution act are required to bear the tort liability,whose legal basis is state responsibility.From the perspective of the constituent elements of tort liability,it is a tort to fail to fulfill the obligations of soil pollution risk control and repair;the scope of damage includes personal or property damage,and environmental damage does not happen on the specific civil subject,so it does not belong to the protection scope of tort law,and the application of spiritual damage will lead to too strict liability,so it is not suitable to apply;in the determination of causality It can be identified by the rule of "if not",if the land user takes the responsibility of soil pollution risk control and remediation,it can prevent or stop the occurrence of damage consequences,At this time,it should be recognized that there is a causal relationship between the inaction of the land user and the result of the victim's damage,otherwise there is no causal relationship;the legal elements of illegality and the low risk of behavior jointly determine that the principle of liability fixation is suitable to adopt the principle of fault liability.In terms of the application of law,the way that the land-use right holder bears the tort liability can be applied to any way stipulated in the tort liability law in theory,but some ways have no applicable space due to the characteristics of soil pollution tort.Restitution can be applied when the land-use right holder bears the tort liability.Because of the prevention obligation arising from the fact of land management,the liability arising from the enjoyment of land benefits and the possibility of liability arising from the possession of restitution benefits,restitution not only includes the compensation for the interests of the victim,but also includes the repair of the contaminated soil.The system of land use right holder's responsibility for soil pollution tort has improved the mechanism of pursuing responsibility for soil pollution tort,is conducive to the protection of soil environment,is conducive to the protection of the interests of the victims,and is of great significance for the improvement of the system of responsibility for environmental tort in China,and is a place worthy of affirmation.However,in the future development,we should also consider the different management and control ability of land-use right holders and different responsibilities,refer to the system of innocent land owners in the United States,and build a system arrangement of exemption under specific circumstances;at the same time,we can also consider the establishment of environmental damage compensation fund,the establishment of environmental pollution liability insurance system and other ways to establish a reasonable loss sharing mechanism.