On The Private Law Relief Model Of Ecological Environment Damage

The mutual penetration of public and private law has become an important trend in the development of modern law.As environmental public welfare,ecological environment is related to the public interest of many subjects,and it is mostly remedied by environmental law and administrative law.However,the traditional public law relief is mainly punitive,the amount of punishment does not match the serious consequences of the damage,it is difficult to fill the damage,but also has a certain lag,it is difficult to play the purpose of protecting the ecological environment.The damage filling function and prevention function of private law can effectively make up for the defects of public law regulation and avoid the tragedy of public land.The civil code(Draft),published in December 2019,provides for "ecological environment damage",reflecting the changing trend of private law relief for ecological environment damage.However,the right standard of private subject in private law and the characteristics of ecological environment damage seem to be incompatible.There are huge obstacles in the theoretical basis,the subject of claim,the constitutive elements,the damage assessment,the way of relief of ecological environment damage in environmental tort law,which affect the relief of ecological environment and the realization of the goal of "beautiful China".When the environmental tort stays in the ecological environment itself and does not cause damage to the rights and interests of specific subjects,how can the ecological environment damage get relief within the framework of private law is the premise of the discussion of civil liability for ecological environment damage.It has its limitations to endow the subject qualification of ecological environment,to transform it into the damage of property rights and interests and to the theory of state ownership of natural resources.The environmental right belongs to the emerging right in our country,and the damage to the ecological environment is essentially the damage to the public environmental right.The theory of environmental right is the approach that private law can be used in the field of ecological environmental damage.The private law relief mode of ecological environment damage has space and necessity in the case of the failure of environmental administrative means,and gives full play to the filling function of private law.The litigation of compensation for ecological environment damage and the litigation of environmental public interest are both litigation systems designed for ecological environment damage,but the system and rules are different,and the procedure is difficult to apply.Therefore,it is particularly important to build and clarify the civil liability system of ecological environmental damage.In the aspect of responsibility constitution,due to the particularity of ecological environment damage,the legal relief system of ecological environment damage in China should be reshaped,the principle of fault liability should be established,the illegality should be taken as the precondition of ecological environment damage relief,the burden of proof of causality should not be inverted,and the balance between economic construction and development and environmental protection and restoration should be realized.In the aspect of relief methods,the restoration of ecological environment is the core and purpose of civil liability for ecological environment damage,establishing the concept of ecological restoration,and realizing the prevention and filling of ecological environment damage.The scope of application of punitive compensation is limited to "serious personal injury",and the ecological environment damage relief is not applicable to punitive compensation.The remedy of private law is not enough.To realize the remedy of ecological environment damage,it is not enough only to rely on the remedy of private law,but also to play a good role together with the regulation of public law.