生态环境损害责任的理论辨析与司法实践

The Liability of Ecological and Environmental Damage:Theoretical Analysis and Judicial Practice

生态环境损害责任的属性、功能以及内容均有别于民事侵权损害赔偿责任。在司法审判中生态环境损害责任已获得部分实践但仍有不少问题需要厘清。“环境修复”与“生态功能恢复”是并列关系抑或是递进关系,司法实践中的认定较为模糊。审判中以金钱给付为主的赔偿责任与修复为主的生态环境损害责任混同;具有公益性质的生态环境损害无法在私益诉讼中获得支持,分开诉讼可能导致司法资源的浪费亦或救济不足;环境行政公益诉讼除了对行政行为进行司法评价,亦应考虑生态环境修复的责任承担。在构建生态环境损害责任的诉讼制度中,对因果关系以及举证责任应给予重新界定,不宜直接适用环境侵权责任的诉讼规则。

In aspects of the attributes, functions, content and constitution, the liability of ecological and environmental damage is different from the civil liability of environmental tort.Therefore, it is necessary to establish a special liability system and its implementation mechanism to effectively guarantee the goal of ecological civilization construction.It is obvious that the rules of liability of ecological and environmental damage have been applied in the typical cases issued by the Supreme People's Court, though they are still very rough.First of all, environmental restoration and recovery of ecological functions are parallel responsibilities or progressive responsibilities, which is more confusing in judicial practice.Secondly, the liability of compensation damages focuses more on monetary payment whilst the liability of ecological and environmental damage focuses more on ecological recovery.Thirdly, ecological and environmental damage with public benefits cannot be claimed in private interest lawsuits, which may result in waste of judicial resources or lack of judicial relief if the public and private lawsuits are separated absolutely;Fourthly, the Environmental Administrative Public Welfare Litigation is a legal evaluation of administrative actions, which does not involve the liability of ecological and environmental damage.It is further illustrated that in the construction of the liability system for ecological and environmental damage, the causation and the burden of proof should be redefined, and it is not appropriate to directly apply the existing rules of environmental tort liability.