Judicial Application Of The Legal Base Of Ecological Environment Restoration Claims In The Civil Code

Article 1234 of the Civil Code,as a provision on environmental civil public interest torts,is in line with the trend of green civil code by setting it up for the first time.Interpreting Article 1234 of the Civil Code as a basic norm for requesting rights is a necessary means to study this norm.The structure of the ecological environment restoration request right is: the creditor requests the debtor to perform the ecological environment restoration obligation,and when he does not perform it,he bears the compound request right of the cost of performing it by a third party.Identification and assessment of ecological environmental damage should be taken as basic facts and evidence.The element of Article 1234 also requires “can be restored”,which requires preliminary judgment on restoration costs.In addition,reasonable judgment on whether interests are impaired should be applied.In ecological environment restoration cases,causation’s main burden of proof should be on plaintiff’s side but can use causation presumption theory or other scientific methods on evidentiary matters;judicial interpretation’s provisions on court’s active investigation;defendant bears not providing plaintiff’s requested data evidence or deems such evidence true still apply.Under premise that Article 1234 makes clear provisions;alternative restoration as one way to realize restoration responsibility;this judgment is misreading application scope for ecological environment restoration request right.For restoration act adjudication items;can determine execution measures for ecological environment restoration plan in adjudication items in vague way;only stipulate design for each link’s main method & each link’s goal.Determination for restoration plan;most important content is goal determination & recovery path selection.Should understand that purpose for setting reasonable period is making infringer’s act responsibility primary responsibility method;making him complete restoration responsibility more fully.Therefore reasonable period setting should consider specific plan for restoration act responsibility comprehensively & adjust flexibly.Cost range can refer to Article 1235’s provisions.Can give special treatment to ecological environment restoration request right litigation in judicial practice;adjudication item cost payment given periodic payment method.For general ecological environment restoration request right litigation;supervised by administrative organ with professional function within jurisdiction responsible for performance;At same time repair target & degree determined by professional assistant or administrative organ’s professional opinion & presented explicitly.Combining with ecological environment request right’s incidental public law obligation attribute & special fund special use demand;Adjudication item cost supervision;More appropriate for government competent fund or environmental governance special account subject to court review receiving substitute performance cost.