论环境侵害排除与利益衡量

Environmental injunction based on interest weighing

环境侵权是一种新型侵权行为 ,排除侵害是环境侵权的主要救济方式之一 ,由于排除侵害权利的行使往往影响到产业的发展乃至存废 ,因此通常须辅以利益衡量原则的运用。文章分析了排除侵害的意义与适用的困难 ,考察了利益衡量原则在国外环境侵害排除中的运用以及我国环境侵害排除的现状 ,最后对完善我国的相关立法提出几点建议。

Environmental nuisance is a new type of nuisance, and injunction is among ways of its remedy. Since the exercise of the right of injunction involves the continual existence, development or extinction of a trade, it is thought proper to resort to the principle of interest weighing as a reference. This paper makes an analysis of the significance of injunction as well as the difficulty in its application, then goes on to investigate both the present situation of environmental injunction in China and the application of the principle of interest weighing in environmental injunction abroad, and presents proposals about its legislative improvement.