Is the right of lighting, ventilation and tranquility an environmental tort or a general civil tort?

search

The concept of environmental tort? ... spread out

View all 3 answers.

Anonymous user

20 13- 1 1- 19

Environmental tort is evolved from the concepts of nuisance, interference and adjacent nuisance in traditional civil law. Environmental tort refers to a special tort that causes environmental pollution and destruction due to human activities, thus causing damage to others' property rights, personal rights and environmental rights, and should bear civil liability according to law. Compared with traditional tort, environmental tort has the following characteristics:

First, inequality. In environmental tort, the main position of legal relationship is often unequal. The perpetrators are mostly enterprises and institutions with strong economic strength and strong scientific and technological strength, and the victims are mostly citizens who are in a weak position and lack the ability to resist. Due to the great difference in status and strength between the two parties, it is difficult to realize the legal relationship of subject equality in civil law.

Second, indirectness. In environmental tort, the injurer often infringes on the rights and interests of others indirectly through the intermediary of the environment, rather than directly acting on the injured party, which is very different from ordinary tort. Environmental tort itself is a concentrated summary of various environmental tort phenomena such as air pollution, noise pollution and water pollution, and it is through these media that the injurer infringes on the rights and interests of the victims.

Third, complexity and delay. The victim cannot bear the responsibility of proving the fault of the actor because of the limitation of his own knowledge ability and information acquisition conditions.

Fourth, the universality of the object of infringement. The object of environmental infringement is generally an unspecified person or thing, and the infringed rights are also a number of rights including the right to life, health, property rights and other environmental rights.

The constitutive elements of environmental tort should include the following three aspects: the behavior of pollution destroying the environment, the fact of damage, and the causal relationship between the behavior of pollution destroying the environment and the fact of damage.

1 Environmental damage caused by pollution

The behaviors that pollute and destroy the environment mainly include three wastes pollution (waste water, waste gas and waste residue), noise, solid waste, electromagnetic radiation and natural factors.

Subjective fault is not a necessary element to identify environmental damage caused by pollution. There are three reasons: first, most pollution damage is not caused by the intention or fault of the polluter, and its harm range is very wide, which also threatens people's health and survival. In this case, the most important thing is to protect the environment and the legitimate rights and interests of the victims, and the subjective intention or fault of the perpetrators should not be considered; Second, due to the high specialization and complexity of modern enterprises and the high development of science and technology, it is difficult for the victim to prove the fault of the perpetrator; Third, generally speaking, the operation and profit of polluting enterprises are based on polluting the environment and causing some damage to others, so only adopting the principle of no-fault liability can conform to the principle of fairness.

2 damage the facts

According to the basic requirements of the compensation function of tort law, there is no relief without damage, and the fact of damage is a necessary condition for civil liability of environmental tort. The fact of damage mainly refers to the personal injury and property loss caused by the victim's illness, disability and death, and should also include mental damage and environmental right damage, the latter two items are often ignored. Environmental rights mainly include lighting rights, quiet rights and ventilation rights. These are all new contents in the fact of environmental damage. The damage consequence of environmental tort is similar to other tort, but it also has its particularity. Its * * * performance is that it is the consequence of infringing on legitimate civil rights and interests, with legal compensation, objective authenticity and certainty. Its particularity is manifested in the potential consequences of damage and the universality of the infringing object.

Causality between the behavior of polluting and destroying the environment and the fact of damage

The theory of causality includes the chronological order of cause and effect, the objective truth in fact, the necessary conditions of cause and effect, and the supplementary test of elements. Because of the complexity, potential and universality of environmental tort, it is more difficult to identify the causal relationship than ordinary tort. In this case, sticking to the original theory of causality will inevitably deny the victim's claim for compensation because of its difficulty in proof, so many countries adopt the principle of presumption of causality instead of direct and strict determination of causality. In the field of judicial practice, the principle of presumption of causality has been widely recognized in environmental pollution cases.

In China's environmental law, the principle of no-fault liability for environmental tort is also clearly defined. The Law on the Protection of Marine Environment (1982) is a pioneer in establishing the no-fault liability system in China's environmental legislation, and Article 42 of this law is the earliest provision on the no-fault liability for environmental tort. 1984 article 4 1 of the law on the prevention and control of water pollution has absorbed this provision of the marine environmental protection law, and established the legislative model of the no-fault liability system for environmental tort, followed by the environmental protection law and other environmental pollution prevention and control laws. These provisions provide an environmental law basis for the principle of no-fault liability for environmental tort in China.

Part of it is taken from Wen Qi Cai Ying Vocational College Forum, No.3, 2007 (serial No.8), Research on Several Issues of Civil Liability for Environmental Tort.

Answer on 2013-11-19.

Agree 9

The next answer

The next article

Click to enter the environmental monitoring center.

I recommend it to you according to the environment mentioned in the article.

Environmental monitoring company, focusing on global safety production standardization, so professional-all-inclusive service! 45 days to complete! To provide enterprises with high-quality technical consulting services for safety production standardization. Welcome to consult at any time!

Huainan jiude environmental protection technology co., ltd.. advertisement

In case of patent infringement, please ask Gao Wo Law Firm to help you analyze the case.

According to the environmental infringement mentioned in the article, I recommend it to you.

How to solve patent infringement disputes? Looking for Beijing Gaowo Law Firm, a well-known patent lawyer in China, specializing in patent infringement and trademark infringement litigation, fully safeguarding the legitimate rights and interests of the parties, and having many years of winning experience.

Advertisement of Beijing Gaowo Law Firm

Professional team of patent infringement! More than ten years of experience! The chief lawyer consults directly!

Patent-related information recommendation worth seeing.

Entrusted by people, be loyal to people! -A team of senior patent lawyers in Beijing, with rich experience, real cases and high success rate!

Zhaojiangang advertisement

Everyone is still searching.

Tort compensation standard

infringement of copyright

Criteria for determining copyright infringement

Picture infringement

Environmental tort

The concept of environmental damage

Tort lawyer consultation

Online consultation of laws and regulations

How to judge the environmental pollution case? How can we reduce sentencing?

Advertisement of Beijing Du Jing Law Firm

The difference between environmental tort and environmental damage

Legal analysis: environmental tort refers to the tort that the property right, personality right and environmental right of others are damaged because of the pollution of the environment by the actor, and should bear civil liability according to law. Environmental damage includes damage to the environment and damage to people. Damage to people includes property damage, personal damage and mental damage; Damage to the environment includes environmental pollution, ecological damage and other acts that harm the public's environmental interests. Legal basis: Article 1229 of the Civil Code of People's Republic of China (PRC). If environmental pollution or ecological destruction causes damage to others, the infringer shall bear the tort liability. Article 1230 Where a dispute arises due to environmental pollution or ecological damage, the actor shall bear the burden of proof in case of non-liability or mitigation of liability as stipulated by law, and there is no causal relationship between his behavior and the damage. Article 1231 Where two or more infringers pollute the environment and damage the ecology, their respective scope of responsibility shall be determined according to the types, concentrations and emissions of pollutants, the way, scope and degree of ecological damage, and the role played by their actions in the consequences of the damage. Article 1232 If the infringer intentionally pollutes the environment and destroys the ecology in violation of the law, thus causing serious consequences, the infringed party shall have the right to demand corresponding punitive damages. Article 123 If environmental pollution or ecological damage is caused by the fault of a third party, the infringed may claim compensation from the infringer or the third party. After compensation, the infringer has the right to recover from the third party. Article 123 If 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 require the infringer to bear the responsibility for repair within a reasonable period of time. 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 to do so, and the expenses required shall be borne by the infringer.

Guoxing lawyer

2022-0 1- 19 answer.

435 browse

Characteristic content of environmental pollution infringement

Environmental pollution infringement has different characteristics from general infringement, which determines the burden of proof in environmental pollution infringement litigation and reveals the reasons for implementing the principle of no-fault liability and presumption of causality in environmental pollution infringement litigation. The characteristics of environmental pollution infringement are as follows: (1) the subject is unequal and unspecified. In environmental pollution infringement, the strength of both sides is very different. The victims are often companies, enterprise groups and even multinational companies registered by the state with economic, technological and information strength, while the victims are mostly ordinary farmers, fishermen or citizens who lack the ability to avoid and resist. Compared with traditional tort, the power between subjects is not equal. In some cases, the subject of infringement and the subject of infringement are not specific. Environmental pollution is a "by-product" accompanying economic development, and many of them are caused by the accumulation of daily behaviors that most people can't understand. For example, in photochemical pollution incidents and other compound infringement incidents caused by automobile exhaust, it is very difficult, if not impossible, to find the perpetrators. Victims are often more difficult to determine, such as 1986 Chernobyl nuclear accident in the former Soviet Union, which caused hundreds of people to get cancer and will endanger future generations. (2) Environmental pollution in the process of indirect and compound infringement is indirect infringement. Most of the injures of the injurer do not directly affect the victim or his property, but cause damage to the people or things living in it through the intermediary of "environment", and the process shows extremely obvious indirectness. At the same time, all kinds of pollutants come from a wide range of sources and have different properties. After they enter the environment, they often have complex physical, chemical or biochemical reactions with each other and with environmental elements, and migrate, diffuse and enrich through various natural laws, which makes the damage process extremely complicated and has obvious compounding. (3) Sustainability of damage results and continuous discharge of potential pollutants will continue to occur. Even if the discharge of pollutants is stopped, the pollution damage will not disappear immediately, but will last for a long time in the environment. Damage caused by environmental pollution, especially disease damage, is often not found in time by victims, and often has to be hidden for a long time. Even if it is found, it cannot be eliminated quickly. In other words, victims are often hurt unconsciously, and the consequences of environmental pollution infringement damage are obviously latent and lagging. Osteodynia, for example, was discovered in Japan in the 1970s, with an incubation period of more than ten years. Since 1955, the zinc-lead smelter on the bank of Shendaochuan in Toyama Prefecture, Japan has continuously discharged cadmium-containing wastewater into Hanoi. Coastal residents drink cadmium-containing water and eat rice irrigated with cadmium-containing wastewater. Cadmium gradually accumulates in human body until more than ten years later, which eventually leads to human bones deformation and atrophy.

Lawyer Wang Huankun

2022- 12- 13 answer.

Methods to control formaldehyde pollution-Measure the methods in in addition to formaldehyde to see which ones are useful.

Recommended formaldehyde-related information worth seeing.

Guangzhou Man Ku Network Consulting Service Advertisement

Catalytic combustion equipment all-in-one industrial purification activated carbon thermal storage organic waste gas treatment environmental protection device

500 yuan, 500 yuan

buy

Simba.taobao.com advertisement

Recommend more exciting content for you-

Jiang Wen and Hans Zhang made the same attack on the chest. Why are the comments completely different?

Because Jiang Wen's salty pig hand at that time was completely needed by the plot, both the actors and the audience could understand the play, and it was blatant, but

I'm teacher Qian.

Answer in September 2022-15

454 browse

What's the difference between people who insist on drinking two or two liquors a day and those who don't touch alcohol?

Nowadays, drinking two or two glasses of white wine every day is of great benefit to the normal circulation of the body. Many people in life will try this method, especially some social groups.

Yue automobile

2022- 10- 16 answer

1 like 426 browsing

Top Ten Notebooks in China-Top Ten Office Computers in JD.COM. Come and have a look!

JD.COM advertisement

Chris Lee revealed for the first time that he had ankylosing spondylitis. Is it possible to cure this disease?

Video answer

Mobile phone users 15 127

2022- 1 1-08 answer.

48 comments

Be alert! The pimple on a woman's nose is actually cancer. What acne does she have on her face to be alert to?

There are many pimples on my face, which may be caused by using inappropriate cosmetics or contacting with irritating substances, or by not paying attention to maintaining my skin at ordinary times.

What a coincidence! Little Zixuan!

2022- 10-28 answer

17 1 browse

This year's new notebook, what brand is good, recommended by the leaderboard, which is more popular?

Notebook computer equipment related information recommendation

Zhoushan Zhongyun network science and technology advertisement

"Aircraft worshippers" became popular. What exactly do they do?

Video answer

Estelle 456

2022- 1 1-08 answer.

48 comments

Why did the imperial concubine An Lingrong in the palace lose her fighting spirit after giving birth?

An Lingrong shut himself up in his room all day after giving birth, and his morale was completely lost. Why? In my opinion, there are three main reasons.

Lenny White

July 2022 answer-15

2 comments 457 browse

Huainan in addition to formaldehyde method quickly solves the problem of ammonia nitrogen exceeding the standard

In addition to formaldehyde's recommended materials worth seeing.

Twenty-nine people called to ask questions this month.

consult

Luoyang An Baili Environmental Protection Technology Co., Ltd. Advertisement

Why did Zhao Gou defend the Jiangshan, was scolded by the dog blood spray head, Chongzhen lost Jiangshan but was pitied?

Two emperors, one lost his country and the other kept it, but they had different reputations. Although Zhao Gou saved his country, he was selfish.

Intimate sister, teacher Ma Xiao.

Answered on September 26, 2022

558 browse

From a care worker to a billionaire, how is Zheng Yongshi, who was kicked out of the gambling king's house, doing now?

After the death of Stanley Ho, how to distribute his property has been the object of heated discussion. In fact, they have been assigned, and among many children,

Travel notes of bingbing entertainment

Answer on 2021-11-07.

2 comments on 09,000 views

Notebooks suitable for college students at present. What are the notebooks with high cost performance and good reputation in 2022?

Notebook-related information recommendation worth reading.

Changsha diruan network technology co., ltd.. advertisement

Chris Lee revealed in an interview that she has ankylosing spondylitis. Why is this disease called "immortal cancer"?

Video answer

Qingyun 8h

2022- 1 1-08 answer.

48 comments

There is no question that Zheng Jun dare not answer! Why did he dare to say that?

Video answer

Wrong vg929

2022- 1 1-08 answer.

1 Like 48 comments

Invite you to answer.

Is it illegal for hotel employees to collect money privately?

Law hotel reply.