环境修复理念下环境侵权责任形式司法适用之局限与补强

The Defects and Rectification of the Forms of Environmental Tort Liability by the Request of Environmental Restorationt

作为环境法治理念的环境修复,应当贯彻于环境保护责任制度中。基于部门法的逻辑边界,虽然环境修复理念不能直接通过侵权责任法律制度实现,但可据以检视当前环境侵权责任制度的内生缺陷并予以补强。我国通过司法解释的规则创制,赋予恢复原状承载环境修复功能,恢复原状成为最具特色的环境侵权责任形式,但在司法适用中呈现出适用比例很低、适用环境侵权纠纷类型狭窄、判决的可操作性留有较大争议空间等局限性。应将恢复原状的程度拓展至私人权益所依附的环境资源,并以环境质量标准作为环境要素恢复原状的判断依据。赔偿损失是最频繁适用的环境侵权责任形式,当前的赔偿损失责任仅能救济被侵权人的财产实体损害、静态损害和预期损失,损失赔偿的范围应当拓展至环境损害、污染场地损失和交易损失,以贯彻对环境侵权损害的完全补偿原则。

As the idea of environmental rule of law, environmental restoration should be carried out in the responsibility system of environmental protection. Based on the logical boundary of the department law, although the idea of environmental restoration can not be directly realized through the legal system of tort liability, it can be used to examine the endogenous defects of the current environmental tort liability system and strengthen it. Through the creation of rules of judicial interpretation, the restitution is endowed with the function of environmental restoration, which is the most characteristic form of environmental tort liability. However, in the application of environmental tort cases, there are some limitations, such as the low proportion of application, the narrow types of applicable environmental tort disputes, and the large disputes space for the operability of judgments. The degree of restitution should be extended to the environmental resources on which private rights and interests depend, and the environmental quality standard should be used as the basis for judging the restitution of environmental factors. Compensation for loss is the most frequently applicable form of environmental tort liability, the current tort liability of compensation can only be used to relieve the physical damage, static damage and expected loss of the property of the infringed. In order to realize the full recovery principle of compensation, the scope of compensation should also be extended to environmental damage, pollution site loss and trading losses.