The Determination Of The Amount Of Punitive Damages For Ecological Environmental Damage

Article 1232 of the Civil Code formally establishes the rule of punitive damages in the field of environment in the form of the law,but the regulation is not operable because of the undefined applicable conditions and lack of the method of determining the amount of punitive damages,it also bring inconvenience to the judicial organs apply punitive damages in the future.Among them,the determination of the amount of punitive compensation for ecological environmental damage is a crucial link to determine the realization of the punitive damages system function.If the amount is setting too low,the system will lose its original effect of punishment and containment,while setting too high,it will cause excessive punishment.An appropriate amount of compensation can not only make up for the reasonable losses of the infringed but also achieve the effect of deterring environmental illegal acts and curbing potential environmental illegal acts.The theoretical premise of determining the amount of punitive compensation for ecological environmental damage should clarify the scope of application of punitive compensation for ecological environmental damage first.The ecological and environmental damage includes not only the damage to the ecological system itself,but also the damage to others’ personal and property rights caused by the conduction of environmental media.The duality of ecological and environmental damage determines the diversity of the application range of punitive compensation for ecological environmental damage,so there is room for application in environmental tort litigation,environment public interest litigation,ecological and environmental damage compensation litigation and environmental criminal action additive to civil(public interest)action litigation.The punitive compensation for ecological environmental damage in essence belongs to the category of the compensation for the damage,and it has certain relation and difference with ecological environment restoration cost,service function loss,environmental administrative fine,clarify the relationship between punitive compensation for ecological environment damage and related losses and expenses is of great significance to correctly apply the punitive damage.Throughout the determination of punitive damage at home and abroad,the emphasis lies in the proper selection of the amount limit mode and the amount calculation mode.Based on the current situation of legislation and judicature in China,the determination of punitive compensation for ecological environmental damage in China can consider the legislative model of flexible amount,and on this basis,the calculation method of compensation base multiplied by compensation multiple can be adopted.At the same time,corresponding reference factors can be set to provide guidance for judges to exercise their discretion.In the selection of punitive compensation base for ecological environmental damage,the scope of compensation is also different due to the difference of damage objects,that is,different compensation bases should be determined respectively according to personal damage,property damage and ecological environmental damage.In the determination of multiple,we can try to take the discretion factors as the basis,and according to the seriousness of the situation,we can decomposition different discretion factors to determine the compensation multiple.