Research On The Determination Of The Environmental Civil Liability Of Related Stakeholders Rather Than Polluter

The polluter is defined as the controller and emitter of pollution source in China’s tort law.But this concept can’t cover all the subjects of liability related to environmental tort.This paper introduces the concept of related stakeholders rather than polluter,and makes a typological analysis of the related subjects who bear the tort liability,such as the people who lend qualification,rent the site,contract the project and produce the pollutant,the owner or manager of pollution discharge facilities.It is conducive to standardizing the identification standards of the environmental tort liability subjects.Based on the consideration of the subjective fault,causal behavior,fair concept and other factors of the pollution related party,courts hold that related stakeholders rather than polluter shall bear joint liability,shared liability,supplementary liability or compensation liability.However,due to the uncertainty of the scope of the subject,the lack of the laws of the basis of the claim,the issue of the eligibility of the defendant in judicial practice has led to controversy.Whether the same subject bears the responsibility,how the form of responsibility is,and where the source of obligations is in similar cases have different judgments.On the one hand,related stakeholders rather than polluter bear the responsibility in the lots of environmental tort cases which are involved of this type of subjects,to remedy the interests of the victims in a weak position and eliminate environmental damage.What’s more,the practical experience of the expansion legislation of the liability subjects abroad can be used for reference.On the other hand,it is supported by its profound theoretical basis.The principle of enforcing accountability for damage has been expanded,providing guidance for the determination of the scope of the subject of responsibility.The theory of safeguard obligation provides the standard for the judgment of the illegality of the behavior.The principle of fault liability is the basis of imputation and the theory of internalization of the externality of activities strengthens the rationality.Besides,differentiated causative potency and the rules of beneficiary compensation and fair sharing of loss under the principle of fairness provide guidance for the determination of the scope of the subject of responsibility.The legality is not universal.In the reality of legislation lagging behind,we can improve the way to determine the liability of related stakeholders in environmental tort cases through the way of interpretation theory.In the case that there are clear provisions in the law,such as the responsibility of the person who owns,possesses or manages the ultrahazardous materials,the land user’s liability,the legal provisions shall prevail.In the case of lack of detailed legal expression,we should adopt the attitude of legislation on the fault attribution in the determination of the liability of related stakeholders rather than polluter and proceed from the legal facts,especially strengthen the reasoning of the duty of action,appropriately expand the obligation of safety protection.We should judge the subjective fault,then determine the behavior form of the party,like contributory infringement,separate infringement and the third party’s fault,then determine that the polluter bears the joint and several liability or partial joint and several liability or shared liability.In special cases,courts can determine the subject bear the compensation liability according to the fairness to balance the interests between the victim and the infringer.