Common Violations of Environmental Requirements and Implementation Mechanism

Paper Keywords: common violations to achieve environmental joint tort system
Abstract: In this paper, the theory of general Civil tort together, combining the characteristics of joint tort environment, discusses environmental law on the common response to the traditional Civil law tort of several break points, and constructed according to a new theoretical model to explain Tort Liability of environmental common implementation mechanism should be contingent.

First, the Civil law tort theory of common
Common violations of traditional Civil law, refers to the behavior of two or more people, and based on a common fault caused by the intentional acts of harm to others. Civil Code Article 130 states: "two to joint tort causes damage to others, should be jointly and severally liable. "Tong said that the academic and common violations should have the following characteristics: (1) is subject to infringement of two or more persons. (2) the number of actors have a common fault among the subjective, which has common intent or negligence. (3) behavior of commonality, that is, the behavior of several people linked to form a unified cause for the cause of damage. (4) a number of acts of human behavior and the damage has a causal relationship between the results.

Different from the ordinary tort common violations is the key to the "common" understanding. Here, "common" word, the original out of the German Civil Code Article 823. According to that Article: "several people due to the common damage caused by violations, each of the damage it suffered as the victim held the responsibility. "scholars of the" common "means has always been two different theories: (1) subjective said. lies in the essential characteristics of the common acts of infringements In the subjective world of common fault, which is the virulence of each actor acts together into a whole, jointly and severally liable by their common foundation, so the number of people without means contact each infringement can only be identified as the general tort . (2) objectivism. In this view, common violations found not to act or fault on the subjective meaning of liaison elements. If the complex behavior of offenders causing the same damage, although no common links between the various actors and seek common understanding, shall constitute a joint tort. This doctrine, focusing on the victims of civil liability for damage inspection fill function. Most scholars agree that China " common "meaning, is the common subjective, that is a common essential feature of tort cause damage to several others.

Common and civil law violations often examine the other two constituent elements are similar to the type of violations can easily stick confusion, that the common meaning of risk behavior and non-infringement contact several people.

Common risk behavior, also known as quasi-common violations is the index of the implementation of the risk behaviors of people are likely to cause harm to others, but the victim's actual damages caused by the specific person is unable to verify the legal presumption of the number of damage inflicted per capita in the I behavior. common risk behavior and increase share common violations are people that have a common fault. From the results point of view, the per capita should bear joint and several tort liability. Therefore, the traditional civil law, common violations include generalized common risk behaviors. However, Strictly speaking, the common risk behavior and common tort is different. The main difference is:
1. Whether the meaning of common contact. In the case of joint infringement, although not required to have contact with the meaning, but in most cases, you need to contact the mean. However, in the case of common danger, must not have meant contact. Once an interesting liaison between the various actors to constitute a joint tort.

2. In determining the specific aspects of virulence of different people. In the case of joint infringement, all violations are specific, clear, and in the common risk behavior, determine the scope of only the perpetrators, who must be one of the specific violations a person or persons, but the real people in virulence is not possible under the conditions before the proof.

3. Causation from the point of view. Common infringement of human behavior and harm, between a certain, direct causal relationship; the common risk behavior, risk behavior of each person's behavior and the causal consequences of the damage relationship is a legal presumption is an "alternative causal relationship" and therefore, solely from the identification of the causal relationship to study, common risk behavior adopted more liberal than the standard common violations.

Contact the number of people without meaning infringement, is no mean index of human behavior prior to contact that may cause the same damage results to the same victim. No mean number of people contacted in the number of infringement there is no common not only intentional tort, and there is no common fault. Under normal circumstances, a number of actors do not even have any identity between the relations and other linkages among and even know each other, and therefore can not know the nature and consequences of the actions of others, simply because external, objective, accidental factors make all acts of unconscious contact with the same damage caused by the results.

Second, the environmental violations constituted the common elements of a breakthrough in the traditional civil law
Environmental violations are infringed by the common environment of this special indirect effects on the victims of the media, with the general tort different from the salient features:
(1) complexity. In the traditional segmentation behavior, harm and damage behavior of the fact that both the extent and after a relatively clear, and therefore generally easier to prove negligence; and environmental violations, because the behavior often involves deep knowledge of technology ridiculed The reason for the facts and the extent of the damage occurred, the relationship between content and through the often unclear, the fact that proof of fault is extremely difficult.

(2) latent. In general tort, the infringement ceased, the results can harm immediately or shortly after presentation; but environmental violations as an indirect effect on the victim's self-purification capacity of the environment can absorb some pollutants, only when pollutant emissions in excess of a certain self-purification capacity of the environment, the environment can not absorb that pArt of the pollutants will be gradually accumulated, its after a certain amount of damage will occur.

(3) Multiple pArticipation. Pollution which, although bone pain Toyama disease, the water only to patients in Kumamoto, Niigata, Agano water diseases such errors cause the kind of business activity from a single cause, but modern pollution is usually business activities of enterprises with more reasons for the occurrence of the so-called composite pollution.

The violations were common features of the environment, I am the door is not difficult to find common violations of traditional civil law theory has been difficult to deal with the increasingly serious environmental common assault, the urgent need for environmental law violations have been common to adjust based on the theory to address the need for regulatory co-infringement. In my opinion, can be broadly from the following aspects:
1. In the "common" understanding of the meaning, the shift to "objective that" the view that an objective result elements, regardless whether the perpetrator subjective meaning of common contact. Environmental violations despite the common objective common cause against the results, but against a different cause environmental pollution in the subjective is to seek its own interests, the infringement of a third party between the psychologically speaking, have no common purpose, if the traditional joint tort theory to understand the environment of its responsibilities under the ownership of multiple violations, the victims were only able to claim the rights of the aggressor is not conducive to the protection of victims. Therefore, regardless of whether the co-perpetrators with a common purpose between, as long as the objective of the commonality of their behavior, it should be jointly and severally liable to the benefit of protecting interests of the victims. Reposted elsewhere in the Research Papers Download http://www . hi138.com 2. not to have identified the environment as a common law tort of one of the elements. the traditional common law tort theory to behavior as a result of the damage caused by the nature of the possible infringement of the standards. But the environment for common violations act itself has social utility, the state response to the general provisions of the polluting behavior of social tolerance at least, under the limits of environmental violations are not prohibited. And it is common for numerous violations "legitimate 'acts of blending together caused the damage occurred.

3. Change the causal relationship between that standard. Our judicial practice in civil litigation against the compensation has been based on strictly objective necessity of the causal relationship as the standard, the burden of proof on the issue by both parties throughout the claims on the same burden of proof of negative by the court and be fully the responsibility to collect and examine evidence. but because of environmental violations and indirectly, complexity, and uncertainty of the latent characteristics of the relative identification of the causal relationship in terms of not only the more general tort by the technological level restrictions, but also greatly improved the difficulty of proof. Therefore, the environmental causation theory of contributory infringement in violation of the specific characteristics must be integrated to be improved to be more conducive to the protection of the interests of victims. At present, the main innovation of this theory, including probability theory , epidemic causality concept and indirect evidence to the contrary theory that the causal relationship between cause and effect of these three criteria. causal relationship between these three theories are not mutually exclusive, but complement each other. In one case, often with the use of two or even Three causal theory, its purpose is to reduce the victim as the plaintiff's burden of proof to expand tort law and the damage results in the possibility of contacting the internal implementation of damages in tort for social sharing.


In summary, the environment has been a common violations of the constituent elements common significant breakthrough in the traditional theory of tort limits caught, developed a special environmentally common violations, the new identification standard. "To make the composite hazards the relief of victims easily, requiring broader application of the provisions of common violations, "the article could be considered the beginning of the three listed types of violations, that is common violations, and common risk behaviors, unconscious violations have contacted several people Common violations included in the environment to be laid, it actually adopted the "objective that" the inevitable result. comprehensive study, may constitute violations of environmental elements together as the following: 1. there are two or more the tort. This is the "common" the meaning of the .2. Two more persons have been implemented to cause the same damage consequences. conduct does not require a common human fault and awareness of contact, and not to conduct a .3 for the element of illegality. infringement and the damage of a causal relationship between the results. Does not require the kind of causal relationship between the results of strict tort and damages, direct correspondence, the presumption of causality method can be identified.

Third, the environment, the realization of a common mechanism of Tort Liability
Joint tort environment, the accountability, in fact, double the responsibility involved in relations between the perpetrators and the victims and the perpetrators of external responsibilities of the internal burden-sharing between the issues.

In the issue of external accountability, according to the traditional theory of joint infringement, and common people bear joint and several tort liability. Obviously, the joint and several liability is a statutory responsibility to, not because of the common people against the change within the agreement, for the protection of interests of the victims is very beneficial. It not only damages the victim request is simple, reducing the burden of proof in many, but also the realization of the right to make claims with sufficient protection. the victims who do not have to because of the involvement of common violations level, and their behavior on the role of damage difficult to be sure, common violations or because one or a few people who do not have sufficient financial resources to conduct compensation and impede its full amount of compensation should be. Therefore, the regulation of environmental law Key start, to strengthen the protection of the interests of victims, the environment should insist on joint and several liability tort principles.

In the joint and several liability applies under the conditions of the victims may not have to consider all offenders the proportion of the role of the damage occurred. But, thus creating a common violations are the responsibility of all at once borne by a business risk, therefore, with the this dangerous regime, for the enterprise is by no means an ideal system. especially for those who play a role in the damage of the small enterprises is very low class to the common tort is indeed too harsh Shi. Fair share of responsibility to consider a uniform standard should be determined to solve the problem of responsibility of the perpetrator, that the perpetrators of shared responsibility between the internal problems. Countries in the judicial practice is mainly used to solve this problem in several ways :
(1) determine the extent of liability under the scope of infringement. That the behavior of the perpetrator to be examined separately, the actor who causes damage to the consequences of the behavior of strong and weak points; the actors involved in the degree of infringement of the size of the points, strong, and the larger and more sharing of some responsibilities, otherwise less commitment;
(2) According to the causal relationship between the perpetrator to determine the share of liability. This is a joint tortfeasor on the damage caused can be divided into various parts of the premise, damage can be divided, then the actors bear their respective responsibilities;
(3) According to the average number of common violations of people sharing responsibility. That is not considered a common level of violations against human size, and its behavior results in damage to the role played by the strength and other factors, should be equally shared liability.

Generally agreed that the first method is preferable, and in judicial practice is also more commonly used, how will each act in violation of degree of participation in specific, and then calculate the perpetrators should bear tort liability can be materialized, the existing scholars put forward the "proportional division of compensation" system, advocates should be involved in virulence of the various actors in proportion to the size of the extent to liability. In general, the study level of emissions is a measure of the size of virulence good standard. because The way to help overcome the equally bear the liability of the disadvantages of joint infringement to remedy environmental inseparability inadequate.

In view of our environmental laws and regulations related to tort liability for environmental problems common legislative gaps, it is proposed to amend the environmental laws and regulations, the response to the environment how to bear the responsibility of joint infringement, the perpetrator is responsible for such issues as how to give a clear requirement. Reposted elsewhere in the Research Papers Download http://www.hi138.com