论惩罚性赔偿在环境民事公益诉讼中的限制适用

On Limitation of Punitive Damage in Environmental Civil Public Interest Litigation

《民法典》第一千两百三十二条在环境民事侵权中创设了惩罚性赔偿制度,但该条却未直接指明惩罚性赔偿能否适用于环境民事公益诉讼。对此,学界现有持赞成观点的“肯定说”和与之相对的“否定说”。两种观点看似有着多重对立,但分歧之根本是对“惩罚是否过重”的问题有不同认识,分别代表着保护环境和保护行为人合法权益两种立场。两种学说均有不足之处,更为恰当的路径是以“肯定说”为基础,兼采“否定说”观点,提出“限制说”。“限制说”应提出体系和文义相一致的规范解释路径,正确定位惩罚性赔偿的功能,通过一事不再罚解决重复处罚的问题。在“限制说”之下,司法解释条款还应当注意尊重行政权的优先性、防止行政机关规避职责、合理确定惩罚性赔偿金数额等问题。

Article 1232 of the Civil Code has established the system of punitive damage in the field of environmental tort of damage.However,according to it,the answer to whether the punitive damage can be adopted in the environmental civil public interest litigation is not yet clarified,which leaves room for judicial interpretations.Academics have launched a debate around this question and there are two typical opinions:The punitive damage can/can′t be adopted in the environmental civil public interest litigation.Advocates of each opinion have provided their reasons from legal norms,the functions of law system and the consequences of law enforcement.The fundamental disagreement between the two opposite views is scholars giving different answers to whether the defendants suffer from excessive punishment because of their opposite standings.But both opinions have defects,and the third path could be reckoned as a better way,which can be called"the way of limitation".Under this circumstance,the supreme court should construe the appropriate function of punitive damage and avoid the second punishment by the principle of"no second punishment".Besides,they should also pay attention to the priority of administrative power,prevent administrative organs from evading their duties and determine the amount of punitive damages reasonably.