Study On Soil Pollution Risk Management And Control Subjects And Their Civil Liability

Soil pollution risk control is the soil pollution prevention and control principle defined in the Soil Pollution Prevention and Control Law of the People’s Republic of China(“the Law”).This is a legal system innovation based on China’s basic national conditions and drawing on the experience of soil pollution prevention and control abroad,which is aiming to effectively deal with the serious soil pollution problem in China.However,as something new,there are many issues of soil pollution risk management and control to be further discussed,theoretically and practically.This study intends to clarify the basic connotation and extension of soil risk management and control from the theoretical level,and discuss the identification procedure of the responsible subjects and related issues of civil liability bearing in combination with judicial practice.In this study,the related concepts of soil pollution risk management and control are analyzed.Firstly,the definition and types of soil pollution risk are clarified in combination with the technical specification documents with legal normative nature.By comparing the classification methods of soil pollution risk,this study reviews the classification methods of soil pollution risk established inthe Soil Pollution Prevention and Control Law of the People’s Republic of China(“the Law”).The Lawgiven priority topersonal health and safety risks,and also given consideration to other risk comprehensive evaluation method,is based on the rational choice of China’s basic national conditions.Secondly,the principles,legal basis and methods of soil pollution risk management and control are defined in the study combining with the system of laws and technical norms.In-depth discussion on polluter responsibility and classified management,as well as analysis on risk management and control and restoration standards from the system level,will help build a systematic and integrated system for soil pollution risk prevention and control.After clarifying the related concepts of soil pollution risk management and control,the classification and identification procedure of soil pollution risk management and control responsible subjects are studied,which is the core part of this study.First,the classification principle of the liability subject is differentiated and analyzed,and the liability subject of polluter,user and successor is defined according to the relevant classification principle of the Law.In particular,limited retroactivity principle has become an important principle of soil pollution prevention and control legislation in China.However,in the future legislation,we should learn from the relevant legislative experience of foreign countries,who expand the scope of the subject of responsibility,and at the same time,from the perspectives of social fairness,transaction safety,public acceptance,law implementation cost,payattention to the reasonable setting of the limit of liability investigation,to exempt some subjects from responsibility.Second,according to the general rule of law,the identification procedure of soil pollution risk management and control responsible subjects are studied in detail.While establishing the determination procedure according to the Law,we should elaborate and standardize the determination procedure according to the generalrule of law,especially the "natural justice principle".The identification procedure of the soil pollution risk management and control responsible subjectscan be subdivided into three sub-procedures: initiation,investigation and determination,which can be improved according to different characteristics of agricultural land and construction land.At last,this study studies the responsibility of soil pollution and civil liability.First,therestoration liability standard and fund guarantee system in civil liability are studied.China should learn from the experience of soil pollution restoration standards from foreign countries,adopting the "benefit-oriented model" in soil restoration,and using the risk management and control model to determine the goal of "restoring the original state" of soilrestoration.Through the establishment of corporate legal entity to continue the system,and through the improvement of the personality denial system,bankruptcy liquidation order to improve the corporate responsibility system;By establishing a comprehensive financial security system with restoration fund as the core,and supporting the environmental liability insurance and environmental welfare lottery system adapted to China’s basic national conditions,the soil restoration fund security system is improved,so as to provide financial security for soil risk management and control and restoration.Second,the study also studies the scope of responsibility of civil liability for compensation and determines its causal relationship.We should learn from the legislative experience of foreign countries and study the possibility of the application of punitive damages.In determining the causal relationship of soil pollution,we can learn from German and Japanese environmental responsibility laws and adopt epidemic cause-and-effect theory.At the same time,in terms of the burden of proof,we should learn from the German principle of condition responsibility,given consideration to efficiency and fairness,and establish the distribution standard of burden of proof with polluter as the main burden and site controller as the supplement.