环境侵权行为违法性要件判断的困境与调适

The Dilemma and Adjustment of Judging the Illegal Elements ofEnvironmental Tort

最高院提出环境侵权责任构成应具有违法性要件,认为任何违反民事私益的行为都具有违法性。但是违法性判断并没有明确规定是以行为不法或者结果不法为标准,并且无过错归责原则在立法理念上与违法性要件不相匹配。违法性适用要基于环境侵权类型化的基础,基于原因行为不同将环境侵权划分为生态破坏和环境污染,在生态破坏领域中以保障利益的不同,分为生态私益破坏和生态环境损害,而在环境污染领域基于科学基础分为实质型污染和拟制型污染,在四分环境侵权行为上,对违法性判断进行调适。

The Supreme People's Court proposed that the constitution of environmental tort liability should have an illegal element,and held that any behavior that violates civil private interests is illegal.However,it does not clearly stipulate the standard of the judging of illegality:wrongful conduct or illegal result,and the principle of no-fault imputation does not match the requirements of illegality in the legislative concept.The application of illegality should be based on the categorization of environmental torts.Environmental torts are divided into ecological destruction and environmental pollution based on different causes and behaviors.In the field of ecological destruction,the protection of interests is divided into ecological private benefit destruction and ecological environmental damage.The field of environmental pollution is divided into substantive pollution and fictitious pollution based on the scientific basis.Regarding the four-point environmental tort,the judgment of illegality is adjusted.