Distribution Of Burden Of Proof Of Flowing Causality In Environmental Pollution Tort

Environmental pollution infringement is a special form of infringement.Taking the environment as the medium,it has the characteristics of indirect,cumulative,wide-area and so on.In order to solve the problem of proving causality in environmental pollution tort litigation,China has legislated the inversion system of the burden of proof of causality,but there is a gap between the practical trial and the current theory.Based on the temporal and spatial order of harm,the causality chain can be divided into two stages:flowing causality and damage-causing causality.The damage-causing causality focuses on whether a specific harm is the cause of personal and property damage to the victim;flowing causality focuses on whether the harmful substance reaches the place of damage after being discharged from the sewage outlet,which is also the premise to judge whether the factual causality exists.Whether the pollutants in the place where the damage occurs are discharged by the infringer is the first problem to be solved when determining the causality.However,due to the migration,transformation or purification of pollutants in environmental media,it is sometimes difficult to judge the exact path of transmission of pollutants to the place where the damage occurs.Article 6 of the judicial interpretation of environmental tort stipulates that the infringed shall provide evidence to prove the correlation between the pollutants discharged by the infringer or its secondary pollutants and the damage;Article 7 stipulates that if the infringer can prove that the discharged pollutants that can cause the damage do not reach the place where the damage occurs,it can be determined that there is no causal relationship between his environmental pollution behavior and the damage.In practice,some courts require the plaintiff to bear the burden of proof of flowing causality and meet the high probability standard,while others only require general or even low probability,which can be presumed to be established,and then the defendant gives evidence that the pollutants did not reach the place where the damage occurred.There are many ambiguities in the proof of flowing causality in the current rules,which is fundamentally due to unclear positioning of its nature.The flowing causality is interpreted as the possibility of pollution flowing the place where the damage occurs in the "relevance" proof.The plaintiff shall preliminarily prove the facts of the pollution path.Generally,it only needs to judge that the pollutants discharged by the defendant are likely to reach the environment in which the plaintiff’s person or property is located according to common sense and experience;Then the defendant shall bear the burden of proof that the discharged pollutants do not reach the place where the damage occurs from the two levels of non homology and no path possibility.