以“生态恢复论”重构环境侵权救济体系

Reconstructing Environmental Tort Relief System through“Ecological Recovery Theory”

从我国环境侵权制度的实践出发,可以考察和梳理司法、立法的现实做法并梳理其背后蕴含的理论逻辑。经过四十年的实践发展,环境侵权制度在行为认定上从单一的环境污染转向环境污染与生态破坏的双重认定,在救济对象上从单一的私益转向私益与公益的双重保护,在救济方式上从传统的民事救济到以生态修复为主的综合救济。丰富的实践背后蕴含着损害理论的重大转变,即从传统侵权损害论逐渐分化,形成环境侵权的专业救济理论——生态恢复论。该理论以整体主义环境哲学为基础,将生态环境整体作为调整对象,以修复为主要救济方式。以问题为导向的理论创新为法律制度建构提供了基础,在民法典及环境法规范中应进行基于理论分离的重构,实现协调基础上的制度分离。

Setting out from the practice of the Chinese environmental tort system, we investigate its actual judicial and legislative conduct and sort out the theoretical logic underlying it. Following forty years of practice and development, the identification of behavioral standards in the environmental tort system has changed from focusing solely on environmental pollution to focusing on both environmental pollution and ecological damage;the targets of relief have changed from focusing solely on private interest to the dual protection of private interest and public welfare;and the manner of relief has changed from traditional civil relief to comprehensive relief based on ecological restoration. Underlying this substantial amount of practice is a great change in the theory of damage, that is, from a gradual division of traditional tort damage theory to the formation of specialized relief theory, i.e., the ecological recovery theory of environmental tort. Based on a holistic environmental philosophy, the new theory takes the whole ecological environment as the object of adjustment, and restoration as the main means of relief. Problem-oriented theoretical innovation provides a basis for the institutional construction of the legal system. In terms of the civil code and environmental law norms, we should engage in reconstruction on the basis of the separation of theories, so as to achieve system separation on the basis of coordination.