The Application Of Punitive Compensation For Environmental Tort Under The Background Of Civil Code

In recent years,with the increasing speed of China’s economic development,environmental pollution has become increasingly serious.Environmental resources,as a kind of scarce resources,need a strong institutional basis to protect them.In the Civil Code of the People’s Republic of China,the principle of punitive damages is applied to the field of environmental infringement for the first time in Article 1232,which reflects China’s emphasis on environmental protection in the construction of ecological civilization and its determination to crack down on environmental illegal acts.Because this article only makes the principle stipulation in the law requirement,it may produce the partial application problem in the judicial practice process.In order to better improve the relevant mechanism of punitive damages for environmental infringement in China and give full play to its maximum function in the field of environmental protection,it is necessary to conduct a deep exploration and analysis of this law.This paper,from the perspective of legal and economic analysis,uses the method of economic analysis to analyze the punitive damages clause of environmental tort,prospectively puts forward the possible application problems in judicial practice,and seeks for reasonable and appropriate solutions.The first part of this paper expounds the possible disputes arising from the application of punitive damages in the field of environmental tort in China.The first part is that the amount of punitive damages breaks through the "filling" compensation principle,which leads to the phenomenon of excessive litigation caused by the victim’s obtaining "unjust enrichment".Secondly,due to the trans-regional characteristics of environmental infringement,punitive damages are too high,which leads to heavy burden on enterprises and hinders economic development.Third,the complexity and difficulty in accurately assessing the damage consequences of environmental tort cases and the excessively high range of the judge’s discretion caused by the principled provisions of the provisions lead to the deformed judgment of the cases by judges.Article in the second part,from the civil code of our country environment tort law elements of punitive damages provisions,dissected from the terms of the principle of punitive damages the applicable elements of objective illegality,subjective intent,the pursuit of serious consequences and narrowed the subject of children,and by using analysis method of legal economics,with rational "economic man" as the premise,The demand of environmental resource protection in China and the necessity of applying the principle of punitive damages are expounded.The third part of the article,on the application of the first part of the problem put forward the corresponding solution under the law of economics perspective: according to "the victim" unjust enrichment "prompting rampant litigation phenomenon" problems,the use of legal economics,incentive function,improve the degree of distribution of burden of proof and the proof method is put forward to reduce the phenomenon of rampant litigation;In view of the problems of "aggravating the burden of enterprises and hindering economic development" and "the deformed judgment of judges on cases",through the application of the concept of incentive function and opportunity cost in law and economics,this paper proposes to improve the mechanism of punitive damages to solve them.Among them,improving the distribution of burden of proof includes: the principle of "who claims who presents the proof" applies to punitive damages;The degree of proof of causality should be "clear and convincing".To improve the mechanism of punitive damages includes: to determine the amount of punitive damages,select the penalty multiple within one times as the punishment range in the field of environmental infringement;Limiting the scope of the discretion of the case judge.The circumstances at the discretion of the judge include but are not limited to: the degree of the subjective malignancy of the defendant.For the subjective state of mind that is more malignant and the situation that the defendant still refuses to change after being sentenced to punishment compensation,the judge should consider taking heavy punitive damages;For environmental tort cases with excessively serious damage degree,the defendant should be punished severely,so as to achieve the effect of setting an example to others.The business scale and economic strength of the defendant took the business scale and economic strength of the enterprise as consideration factors to make discretion and distinguish different types of enterprises.