论环境损害惩罚性赔偿责任的可保性及其制度展开

On the Insurability of Punitive Liability for Environmental Damage and its Institutional Development

囿于惩罚性赔偿责任可保性的传统学理认知,环境损害惩罚性赔偿责任在“可保说”与“不可保说”之间进退维谷。剖析环境损害惩罚性赔偿责任的多重功能或可为其可保性问题寻得“二阶可保”的解释可能。基于对惩罚性赔偿责任中填补损害型责任和惩罚威慑型责任的解构,其中的填补私益损害型责任完全可保,惩罚威慑型责任完全不可保,填补公益损害型责任部分可保。环境损害惩罚性赔偿责任的二阶可保性不仅可以借助保险法理中的可保风险理论及其适当扩张得到充分性论证,而且能在以“维持制度功能”和“契合公共秩序”为主要内容的制度效益视角下获得必要性证成。为推动环境损害惩罚性赔偿责任的二阶可保性从理论落地实践,可沿着“奠定基础-搭建框架-提供保障”的思路,优化环境损害惩罚性赔偿责任,构建承保技术方案,制定配套支持措施,最终实现被保险人、保险人和社会公益的共赢。

Due to the traditional doctrine of the insurability of punitive liability,punitive liability for environmental damages is in a dilemma between"insurable"and"uninsurable".From analyzing the multiple functions of punitive liability for environmental damages,or its insurability may find the"second-order insurable"interpretation of the problem.Based on the deconstruction of the punitive liability to fill the damage type of liability and punishment and deterrence type of liability,which fill the private interests of the damage type of liability is completely insurable,punishment and deterrence type of liability is completely uninsurable,fill the public interest of the damage type of liability partially insurable.The second-order insurability of punitive liability for environmental damages can not only be fully justified by the theory of insurable risk in insurance jurisprudence and its appropriate expansion,but also can be proved to be necessary under the perspective of"maintaining the function of the system"and"fitting in with the public order"as the main content of the system′s efficiency.In order to promote punitive liability for environmental damages,it is necessary to establish that the theory of insured risk and its appropriate expansion are sufficiently justified.In order to promote the second-order insurability of punitive liability for environmental damage from theory to practice,we can optimise the liability for punitive compensation for environmental damage,construct underwriting technical solutions and establish supporting measures along the lines of"laying foundation-building framework-providing guarantee",so as to achieve the ultimate goal of"the insured,the insurance company,the insurance company,the insured person and the insurance company".In the end,the insured,the insurer and the social welfare will achieve a win-win situation.