Abstract
Litigation for ecological and environmental damage compensation is an important achievement of China’s environmental justice reform in recent years, and an important component of China’s ecological civilization system reform. As a special civil environmental public interest litigation (EPIL) system, it has a unique operating mechanism. In terms of the liability mode, priority should be given to ecological environment restoration and compensation for ecological environment damage. In the connection with China’s civil EPIL, the principle of “special before general” should be followed, and the factors of unification of adjudication standards and conservation of judicial resources should also be considered. The development of the ecological and environmental damage compensation litigation (EEDCL) system is deeply influenced and shaped by China’s effort to reform the environmental rule of law, which more directly reflects the progress made in environmental legislation and justice in China in recent years. Of course, this system needs to be tested and improved in practice.
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Notes
- 1.
Chen (2018), pp. 20–27.
- 2.
Hu Jintao, We will unswervingly advance along the path of socialism with Chinese characteristics and strive to complete the building of a moderately prosperous society in all respects - Report to the 18th National Congress of the Communist Party of China. 2012-11-19, http://www.beijingreview.com.cn/18da/txt/2012-11/19/content_502297.htm.
- 3.
Xinhua News Agency (2012).
- 4.
Wang et al. (2021).
- 5.
The principle of liability for damage refers to that when the actor causes damage due to the behavior of polluting the environment and destroying the ecology, the actor shall bear legal responsibility according to law.
- 6.
The SPC (2020), p. 2.
- 7.
Article 1234 of the Civil Code of the People’s Republic of China provides that: ‘Where a tortfeasor causes damage to the ecology and environment in violation of the State regulations and restoration is possible, the State authorized agencies or the organizations authorized by law have the right to request the tortfeasor to bear the responsibility for restoration within a reasonable period of time. Where the tortfeasor fails to restore it within the time limit, the State authorized agencies or the organizations authorized by law may initiate the restoration on its own or entrust it with others, provided that any expenses thus incurred shall be borne by the tortfeasor’; Article 1235 provides that: ‘Where ecological and environmental damage is caused in violation of the State regulations, the State authorized agencies or the organizations authorized by law have the right to request the tortfeasor to compensate the following losses and expenses:
-
(1)
losses caused by loss of service function from the time the ecology and environment are damaged to the time the restoration is completed;
-
(2)
losses caused by permanent damage to ecological and environmental functions;
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(3)
expenses of investigation, appraisal and assessment of ecological and environmental damage;
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(4)
expenses of pollution cleanup and ecological and environmental restoration; and
-
(5)
other reasonable expenses incurred to prevent the occurrence or aggravation of the damage.’
-
(1)
- 8.
Notice of the Decision on Amending the Provisions on the Causes of Civil Cases Issued by the Supreme People’s Court, https://www.court.gov.cn/fabu-xiangqing-282031.html, 2020-12-30.
- 9.
Gong (2019), pp. 127–147.
- 10.
Wang (2019), pp. 11–22.
- 11.
Chen (2018), pp. 20–27.
- 12.
Wang (2019), pp. 11–22.
- 13.
(1) The Reform Plan IV (2) identifies the obligor of compensation. Units or individuals who violate laws and regulations and cause ecological and environmental damage shall bear the liability of compensation for ecological and environmental damage and make full compensation;
(2) Article 2 of the Civil Code stipulates the Civil Law shall adjust the personal and property relations among natural persons, legal persons and non-legal organizations of equal subjects;
(3) Article 1of the “Several provisions (trial)” stipulates one of the following situations, or the government at the provincial or municipal level and specified in the relevant departments, agencies, or entrusted by the State Council, exercise the national department of all natural resources assets ownership with the ecological environmental damage caused by natural persons, legal persons or other organizations failing to reach an agreement through consultation or unable to negotiate, Can act as a plaintiff to file a lawsuit for ecological and environmental damage:…… .
- 14.
(1) Article 1,234 of the Civil Code stipulates where the violation of State regulations causes damage to the ecological environment and the ecological environment can be repaired, the organ prescribed by the State or the organization prescribed by law shall have the right to request the infringer to assume the responsibility for restoration within a reasonable time limit. If the infringer fails to make repairs within the time limit, the organ prescribed by the state or the organization prescribed by law may make repairs by itself or entrust others, and the expenses required shall be borne by the infringer;
(2) Article 12 of the “Several provisions (trial)” stipulates if the damaged ecological environment can be restored, the people’s court shall judge the defendant to bear the restoration liability according to law, and at the same time determine the ecological environment restoration expenses to be borne by the defendant if he fails to perform the restoration obligation.
Ecological environmental restoration costs include the costs of formulating and implementing restoration plans, monitoring and supervision costs during restoration, acceptance costs after completion of restoration, and evaluation costs after restoration effects, etc.
Where the plaintiff requests the defendant to compensate for the loss of service functions during the period from the damage to the ecological environment to the completion of the restoration, the people’s court shall make a judgment according to the specific case.
Article 13, Where the damaged ecological environment cannot be repaired or cannot be completely repaired, and the plaintiff requests the defendant to compensate for the loss caused by permanent damage to ecological and environmental functions, the people’s court shall make a judgment according to the specific case.
- 15.
Article 1235, Civil Code of the People’s Republic of China.
- 16.
Article 14, Several Provisions of the Supreme People’s Court on Hearing Cases of Compensation for Ecological and Environmental Damage (Trial).2020.
- 17.
Technical guidelines for identification and assessment of environmental damage—General principles and key components—Part 1: General (GB/T 39791.1-2020), 8.1.p8-9 issued by the Ministry of Ecology and Environment and the State Administration for Market Regulation in 2020.
- 18.
Ibid.
- 19.
Article 1,165 of the Civil Code stipulates that where an actor infringes upon the civil rights and interests of another person through fault and causes damage, he shall bear tort liability.
If the actor is presumed to be at fault in accordance with the law, and he cannot prove that he is not at fault, he shall bear tort liability.
Article 1,166: Where an actor causes damage to the civil rights and interests of another person, whether or not the actor is at fault, and the law provides that he shall bear tort liability, such provisions shall prevail.
- 20.
Article 1229 of the Civil Code stipulates that where environmental pollution or ecological destruction causes damage to others, the infringer shall be liable for tort.
Article 1,230 of the Civil Code provides that in the event of a dispute arising from environmental pollution or ecological destruction, the actor shall bear the burden of proof in respect of the circumstances under which he is not liable or mitigates liability as prescribed by law and the absence of a causal relationship between his act and the damage.
- 21.
The Handling Rules for Ecological and Environmental Damage Compensation Cases of Guizhou Province (Trial) (Qian Huanfa (2021) No. 1).
- 22.
Measures for the Administration of Blacklist of Trust-Breaking in Ecological and Environmental Protection of Guizhou Province (Qian Huantong (2019) No. 178).
References
Chen H (2018) Reflection and reconstruction of the ecological and environmental damage compensation system: from the perspective of constitutional interpretation. Oriental Law 6:20–27
Gong G (2019) Reflections on the positioning of the nature of environmental civil public interest litigation. Chin J Law 3:127–147
The SPC (2020) Environment and Resources Adjudication in China (2019). People’s Court Press. September 2020, p 2
Wang X, Wei W, Liu X, Liu H (2019) Understanding and application of “several provisions (trial)” on hearing cases of compensation for ecological and environmental damage. People’s Judicature 34:31–38
Wang X, Liu Y, Lin X, Make the clear waters and lush mountains benefit the people and benefit their children and grandchildren, Summary of General Secretary Xi Jinping’s important discourse on ecological civilization construction, Xinhua News Agency, People’s Daily, 2021-06-03, http://v.sjzntv.cn/sy/folder1733/folder1830/2021-06-03/796336.html
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Luo, W. (2023). Litigation for Ecological and Environmental Damage Compensation in China: EPIL with Typical Chinese Characteristics. In: Wang, X., Zhao, X., McNamara, N. (eds) Environmental Public Interest Litigation in China. Springer, Cham. https://doi.org/10.1007/978-3-031-26526-6_8
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