THE STUDY ON THE INTERPRETATION METHOD OF ENVIRONMENTAL TORT IN THE CIVIL CODE: FROM THE PERSPECTIVE OF ILLEGALITY

Cai Chang

TABLE OF CONTENTS

I. RELEVANT PROVISIONS OF ENVIRONMENTAL TORT UNDER THE SYSTEM OF CIVIL CODE

II. THE FAULT PATH AND ILLEGALITY PATH FOR REGULATIONS INTERPRETATION

A. Apprehension Path of Fault Element

B. Apprehension Path of Illegality Element

III. THE SUPPORTIVE REASONS OF CHOOSING THE ILLEGALITY PATH TO INTERPRET ENVIRONMENTAL TORT

A. The Distinction of Tortious Act of Environmental Tort Makes the Constitutive Elements Be More Specific and Detailed

B. Promote the Systematic Understanding and Application of the Civil Code and Special Law on Environment

C. Illegality Has the Function That Fault Cannot Replace

D. Illegality Provides the Oretical Basis for Environmental Tort Liability

IV. JUDGMENT ON ILLEGALITY OF DIFFERENT TYPES OF ENVIRONMENTAL TORT

A. Judgment on Illegality of Pollution Action

B. Verification of the Illegality of Ecological Damage

V. THE THINKING OF COMBINING THE INFRINGED RIGHTS AND INTERESTS WITH TORTIOUS ACTS TO VERIFY THE ILLEGALITY OF ENVIRONMENTAL TORT RESPECTIVELY

A. A Comparative Law Study

B. The Path China Should Choose

VI. REMAINING THEORY

A. Factors Influencing the Judgment of Environmental Illegality

B. The Judgment of Illegality and Its Other Functions

Environmental tort is regulated by the environmental tort chapter of the Civil Code and other relevant specific laws about the environment. There are two different ways to apprehend the constitution and type of tortious act, fault element and illegality element. Selecting the path of illegality interpretation can promote the constitutive elements of environmental tort liability to be more targeted and detailed, at the same time coordinating the Civil Code with specific law system about the environment. Illegality has the function that cannot be replaced by fault, and can provide a critical basis for the undertaking of tort liability. It is suggested to distinguish the infringed rights and legal interests, combine the classification of contamination behavior and ecological damage behavior and their rights and interests protection to determine the illegality of environmental tort.

I. RELEVANT PROVISIONS OF ENVIRONMENTAL TORT UNDER THE SYSTEM OF CIVIL CODE

The Chapter of Liability for Environmental Pollution and Ecological Damage (hereinafter referred to as the environmental tort chapter) of Book Seven Tort Liability in the Civil Code of the People’s Republic of China (hereinafter referred to as the Civil Code) is a general provision on environmental tort liability. Compared with the Tort Law, the important change in this part is the addition of ‘ecological damage behavior’ to ‘environmental contamination behavior’. This paper intends to carry out researches from the perspective of illegality of environmental tort combining the special law of environmental tort and the provisions of the Civil Code.

Since the environmental tort is a particular category of civil tort, the provisions of the Civil Code on environmental tort are needed to be understood and applied in the overall environmental tort system composed of Civil Code and environmental law, so as to prevent one-sided and partial understanding. The same is true of the interpretation of environmental tortious act.

As a special type of civil tort environment infringement,  the provisions of the environmental tort in the Civil Code needs to be understood and applied in the civil law and the environmental law in environmental tort system, in order to prevent the understanding of the one-sided and locality. The same applies to the interpretation of environmental tortious act.

Environmental tortious acts are stipulated in the Civil Code and other special environmental protection laws on ecological protection and natural resources legislations, including the Book of Tort Liability of the Civil Code, Environmental Protection Law, Air Pollution  Prevention and Control Law, Solid Waste Pollution Prevention and Control Law and other laws. Some laws require that the tortious action constitutes a violation of relevant national standards or special provisions of laws, such as  the Solid and Water Conservation Law,  Forest Law, the Law on the Prevention and Control of Environmental Noise Pollution and other laws, which require ‘violation of this law’ in the provisions of the liability composition. According to the Law on the Prevention and Control of Environmental Noise Pollution, it defines noise pollution as the discharge of noise exceeding the national standard. Some environmental torts, such as heavy metal pollution, soil pollution and other pollution, have no specialized law to regulate. Different environmental torts should be determined by combining specialized law and the Civil Code. The specific provisions and contents of environmental tort are as follows:

Table 1: The Specific Provisions and Contents of Environmental Tort

II. THE FAULT PATH AND ILLEGALITY PATH FOR REGULATIONS INTERPRETATION

As the table above demonstrated, there is a requirement of ‘violation of state regulations’ in the article on responsibility for ecological damage in the chapter of environmental tort of the Civil Code, but there is no special provision for environmental pollution behavior. Special law has special provisions on ‘violating national regulations’ and ‘exceeding national standards’ for some specific environmental torts. There are differences in the interpretation of whether this kind of provision is fault or illegality in the constitution of environmental tort liability.

A. Apprehension Path of Fault Element

The first path is to take ‘violating the provisions of this law’ and ‘exceeding the national discharge standards’ as the fault elements to understand. That is to say, the general imputation principle of environmental tort is no-fault liability, and the environmental torts with special requirements are fault liabilities.

For those pollution behaviors via legal fiction, such as the pollution constitution of sound, light and electricity and so on, they should exceed the national standards. When we take the relevant environmental standards as the basis to judge whether the tortfeasor has the fault or not, which is the objectification process of objective fault elements. Some scholars hold that the first paragraph of article 55 of the Water Pollution Prevention and Control Law of 1996 is the combination of fault liability and no-fault liability, and insist which should be based on the legal standards while determining whether the tortfeasor is liable or not, virtually a method to judge fault. According to the typical cases published by the Supreme People’s Court, the fault liability is applicable to the pollution behavior of legal fiction. Some scholars follow the fault thinking to understand the legal practice of ecological damage liability, believe that cases are more inclined to apply the principle of faulty liability while shouldering the responsibility to restore the damaged ecology, in principle, the constitutive elements require the defendant is aware of the existence of illegal action and environmental damage.

B. Apprehension Path of Illegality Element

The second way of interpretation takes specific requirements as the conditions for judging the illegality of environmental tort, that is, ‘violating the provisions of this law’ and ‘exceeding the national emission standards’ as the elements of illegality.

From the development process of legal norms, article 124 of the General Principles of the Civil Law requires that the act of environmental pollution should be in compliance with ‘the violation of state’s provisions of on environmental protection and prevention’, which is regarded as an element of illegality. However, due to the wrong understanding of the concept of illegality, equate tortious act violating provisions with the concept of illegality, and it is believed that no violation of the provisions is not illegal, resulting in incorrect understanding and application between theory and judicial practice. Article 1(1) of the Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Environmental Tort Liability Disputes emphasizes fault in its expression, but in essence, it is more accurate to understand it as illegality, that is, the judgment of illegality is not based on emission complying with the standard.

The judgment of illegality, the choice between revisionism and utilitarianism, is an important issue among environmental tort liabilities. Scholars disagree with the concept that the constitutive elements require only damage fact and causality for environmental damage compensation liability, and do not need the elements of illegality. The excessive emission is regarded as an important factor to judge the illegality, they establish various ‘pollution’ constitutive criterion for different emission behaviors. The no-fault liability of environmental tort, the difference is that the identification criteria of pollution behaviors are different. This idea is the basic proposition of illegality path.

Through comparative law investigation, scholars find out that illegality has different meanings in different legal systems and is the decisive constitutive element of legal tort liability among various countries. On the selection of interpretation path for environmental tort in China, the dispute on whether the illegality is an independent constitutive elements stems from the differences between ‘the three elements theory’ and ‘the four elements theory’. Scholars who deny the elements of illegality believe that the elements of fault can include illegality, and the illegality itself indicates that the actor has the intention or at least negligence subjectively. Some textbooks of environmental law hold the view of denying illegality.

‘Four elements theory’ affirms the illegality of tort liability. In theory, the general theory in China holds that the act of the tortfeasor must be illegal before the tort liability can be established. According to the interpretation of illegality path, the environmental tort rules of the Civil Code are regulated generally, which is no-fault liability; in particular, the requirements of violation of relevant national standards and relevant laws are the standards for determining the illegality of tortious act, and special environmental tort is still a no-fault liability.

III. THE SUPPORTIVE REASONS OF CHOOSING THE ILLEGALITY PATH TO INTERPRET ENVIRONMENTAL TORT

The following section will discuss the reasons for the interpretation and application of ‘violation of the provisions of this law’ and ‘exceeding the national emission standards’ in environmental tort.

A. The Distinction of Tortious Act of Environmental Tort Makes the Constitutive Elements Be More Specific and Detailed

The distinction between illegality and fault is helpful to accurately determine the constitutive elements of special torts, and is conducive to the realization of legislative policies. The path of illegality can facilitate to paraphrase the rules of environmental tortious act more objectively and precisely. The acknowledgment of illegality is conducive to designing rules that do not take fault as the constituent elements, and to making categorized provisions for other acts other than absolute rights. Article 1229 of the Civil Code is a general provision of environmental tort, which adopts the criterion of no-fault liability, which protects both absolute right and civil legal interests. The article distinguishes legislation on the two kinds of tortious acts, environmental pollution and ecological damage, ecological degradation is also within the scope of its relief.  The Environmental Protection Law and other special laws also adopt the legislative mode of distinguishing different tortious acts. The interpretation path of illegality can help to understand the different grades of risk and the way of harm caused by environmental tort, moreover, and distinguishing different environmental tort can more accurately understand the elements of environmental tort liability.

The path of illegality is conducive to distinguishing the different characteristics of different types of environmental torts. According to the differences in tort modes, whether ‘directly act on people’ or not, the pollution act can be divided into pollution act via legal fiction and substantial pollution act. The pollution tort mode via legal fiction is ‘emission act—human’, and the substantial pollution damage mode is ‘emission act—environment—human’. The interpretation path of illegality can distinguish different tortious acts, determine and explain its constitutive elements according to their different tortious characteristics. This approach is supported by comparative law. In the German Environmental Liability Law, the constitutive requirements of environmental damage caused by the function of environmental agent are different from tort liability via legal fiction. The legislative process chooses the responsibility model which is called ‘action responsibility’ or ‘cause responsibility’. ‘Action responsibility’ is to target the danger that human actions may produce. In Japanese law, the elements of environmental damage such as noise and vibration are different from those of general environmental tort.

The interpretation path of the illegality elements is valuable to understand the actions of ecological destruction. The concept of ‘ecological damage’ has not been finalized in the current theory and practice for tort liability, and the composition of ecological damage liability needs further studies. The reason lies in the ambiguous definition of ecological destruction. Scholars divide environmental damage into resource destruction and ecological damage (narrow sense). Each of them includes many concrete forms. As there are no relevant legal provisions on the act mode and characteristics for ecological damage actions, it is still questionable to determine the elements of liability only by judicial interpretation and some existing practices. Because of the complexity and diversity of ecological damage, it is difficult to balance the rights and interests of victims and the freedom of action by taking a single component. Scholars claim that in order to avoid future conflicts, the provisions of tort liability and the provisions of environmental law on ecological damage can be linked through the causation clause. The elements of illegality provide space for determining the constitutive elements according to the characteristics of ecological damage actions.

B. Promote the Systematic Understanding and Application of the Civil Code and Special Law on Environment

In the existing judicial practice, there is a conflict between the general provisions of environmental tort and special laws. Scholars analyze the environmental tort verdicts under the framework of tort liability law, and draw a conclusion that the court mostly applies no-fault liability to the cases of air, water, soil and solid waste pollution; while for the cases of noise, light and electromagnetic radiation pollution, the reason why the judge rejects the victim’s claim is that it does not exceed the relevant standards and does not meet the requirements of tort liability. Though the principle of no-fault liability is theoretically taken as imputation principle in determining the responsibility of ecological environment restoration through investigating ecological restoration cases, the principle of fault liability is applied to specific cases, and the existence of illegality and environmental damage are known as the subjective elements.

The existing interpretation path for judicial practice is different, which leads to the phenomenon of different judgments in the same cases. In practice, cases are determined according to the criterion whether the discharge substantially exceeds the standard or not. The court denies the existence of the illegality of substantial pollution in cases in which the tortfeasor puts chemical fertilizer into the reservoir to raise fish. Though the water quality does not meet the drinking standard, it does not exceed the environmental protection standard for fishery water. Therefore, the tortfeasor does not bear the damage of duck death (duck breeder). The interpretation of illegality is helpful to avoid such conflicts in the implementation of Civil Code and to coordinate the theory and practice of the Civil Code and special law on environment.

Under the system of the Tort Law, the judicial interpretation is generally applicable to the environmental tort cases, which brings about the general rules of the Tort Law to be hollow and remote. As the ordinary law of environmental damage liability, the tort liability chapter of the Civil Code is consistent with the Tort Law, which means the issue that the environmental tort judgment under the tort liability law will still be faced in the process of implementation process of Civil Code.

Converting to the interpretation path of illegality, taking noise pollution as an example, article 2 of the Law on the Prevention and Control of Environmental Noise Pollution sets the criterion that the noise pollution should exceed the standard. Therefore, the relevant standards in the special laws on environment are applied to ascertain specific and different tort acts. It is not that different types of environmental pollution apply different imputation principles, but to establish different standards to determine whether emissions constitute tort or not. This will avoid special laws to ignore and deviate from the interpretation of the general law, and make the provisions of the Civil Code on environmental tort and the provisions of special laws on environment to understand and apply more harmoniously.

During the application of law, the mindset that the fault absorbs the illegality, and considers that the pollution via legal fiction belongs to the fault elements, and the environmental tort is a dual liability system composed of the fault and no-fault liability. According to the Civil Code, environmental tort implements the imputation principle of the unitary and no-fault liability, which leads to the conflict between legal interpretation and judicial practice. The Civil Code and the Environmental Protection Law belong to the same hierarchy law promulgated by the National People’s Congress. To solve this kind of conflict, we should insist on the principle of ‘special law is superior to common law’. Consequently, the issue of the special law on environmental tort ignoring and deviating from the environmental tort provisions of the Civil Code will continue.

The evaluation criteria for the interpretation and application of the environmental tort rules in the Civil Code are to make the legal decision-making easy to operate, easy to observe the decision-making process and predict the outcome. In the application of environmental tort chapter, we should clarify the different constituents of different tortious acts, subsequently complying with the criterion. The environmental pollution tort liability takes the illegality as the essential element, what is the illegality and how to judge the illegality are the problems that need to be determined. In order to maintain the integrity of the system, the tortious act should be consistent with the revision of environmental law in the future.

C. Illegality Has the Function That Fault Cannot Replace

From the perspective of legal ethics, comparative law and legal history, scholars believe that illegality is of great significance in the damage imputation and the liability establishment, and cannot be replaced by fault. Illegality is useful to some extent.

Denying illegality is the viewpoint of constitutive element of environmental tort liability, the existing logical problems are either narrowly equating ‘illegality’ as ‘law breaking’, or ignoring the social value of ‘environmental tortious act’. The claim that illegality is absorbed by fault is due to adopting objective criteria to judge negligence, which confuses fault and elements of illegality. Therefore, fault cannot replace the function of illegality, and fault cannot absorb illegality.

According to Rudolph von Jhering’s theory, objective illegality is illegality, and subjective illegality is fault. This theory still dominates the German legislation, theory and practice. Environmental tort belongs to no-fault liability, and there is no issue of fault absorbing illegality. Fault liability includes action evaluation, and environmental tort belongs to no-fault liability and needs to be evaluated. The distinction between illegality and fault is conducive to highlighting the evaluation function of illegality. The same standard of judgment does not prove that one of the elements of negligence or illegality can replace the one and another. The two have different targets of judgment. Illegality is used to judge the objective attribute of an act, and negligence is used to judge the subjective attitude of the tortfeasor. With the help of fault and causality, it is difficult to prove the legitimacy of the liability if the damage consequence is attributed to the actor, and increasing the elements of illegality can provide sufficient discussion space for theory and practice.

There are two main functions of illegality in Switzerland, Turkey, Austria, Greece and other countries: to solve the indictable problem of inaction and to help explain ‘lack of legitimacy’. In Switzerland, illegality is one of the elements of the claim for damages and spiritual solatium, which is applicable to both fault liability and no-fault environmental tort cases. In environmental tort cases, most of them belong to the category of inaction tort because the tortfeasors fail to use purification devices or take measures to prevent damage. The path of illegality can solve the problem of litigability and legitimacy for this kind of environmental tort.

Illegality has the function of value judgment. Illegality denies the action itself, and fault is used to judge the subjective reproach. The distinction between illegality and fault is the premise to regulate illegal but no-fault actions. For the illegal but no-fault actions, the legal consequences other than damages can be set.

D. Illegality Provides the Oretical Basis for Environmental Tort Liability

The related tortfeasors of environmental tort are usually enterprises engaged in legal operation. The production and operation activities of enterprises have more positive effects than negative effects on technological progress and economic development. The state sets the emission scopes according to the environmental capacity limit, however, the actions that meet the discharge standards also cause damage to others’ lives, properties and ecology. In some environmental torts, the actors do bear the tort liability even they meet the control standard of administrative law. This kind of action is in line with the concept of human fairness and justice, but is a dangerous action in the process of social and economic development, consequently ‘to a certain extent, it has the nature of preventing illegality’. The traditional general tort action is fault liability. In the principle of no-fault liability, the liability for damages does not depend on subjective fault, but to seek grounds for damages from the illegality of action.

Illegality helps to determine the basis of liability when civil rights and interests are infringed. Illegality plays an absolute role in the infringement of rights and interests other than absolute rights. The infringement of environmental tort includes personal and property legal interests other than absolute rights, including public law interests such as ecological damage. Therefore, when such legal interests are infringed, illegality is an important basis for their responsibility.

It is the special function of illegality that makes it a tool to adjust the conflict of interests between the tortfeasor and victim, many countries adopt the elements of illegality. Article 823(1) of the German Civil Code distinguishes fault from illegality. Paragraph 1 of clause 1 of article 184 of the Civil Code of the Republic of China stipulates illegality. The Italian Civil Code requires illegal damage and improper action in the lawsuit of tort. Article 41 of the Swiss Debt Act of 1911 is amended as ‘any intention or negligence causes damage to another person in an illegal manner shall be liable for compensation. Any person who intentionally causes damage to others through improper conduct shall also be liable.’ In essence, it is to adopt the way of distinguishing illegality from fault.

IV. JUDGMENT ON ILLEGALITY OF DIFFERENT TYPES OF ENVIRONMENTAL TORT

According to different types of environmental tort, it adopts different methods to judge illegality.

A. Judgment on Illegality of Pollution Action

The significance classification for judging the illegality is substantive pollution and pollution via legal fiction. The distinction is based on the tort mode of ‘whether it directly acts on people’. The two kinds of actions have different tort styles and degrees of danger to others, leading to the differences in the composition of tort actions. The tort action of substantial pollution (air pollution, water pollution, etc.) is characterized by the existence of agent pollution, the victim’s exposure to the polluted agents, and personal and property damage. The damaging process caused by the discharge of waste liquid, waste gas, waste residue and other substantial pollution actions is ‘discharge action,environmental agent pollution, and personal and property damage’. The pollution action causes damage to the ecological environment, and the victim suffers damage because of being in the polluted environment. Humans inevitably expose themselves to the polluted environment in their work and life for the environmental pollution caused by this kind of pollution actions, consequently they are risky to humans.

Sound, light and electricity are torts via legal fiction, noise pollution is physical pollution, and the impact is a sensory disturbance. The tort style is the direct impact on the victim, and the damage result emerges only when it exceeds the limit of human senses or body. The pollution action via legal fiction is physical and has the characteristics of local, instantaneous and sensory. Because in the daily environment, sound, light and electricity are essential, but not all sound, light and electricity will incur human damage, such action is low risk. The liability for damage caused by environmental pollution is a kind of risk liability, which is not the sanction of illegal acts, but the distribution of unfortunate damage. Noise pollution mainly affects people’s peaceful environmental interests, without ‘environmental damage’.

The significance of distinguishing the substantive pollution action and fictitious pollution one via legal fiction is the different controlling standard which brings various impact on the illegality judgment. The reason for this difference incurred is that the risk degree of action is different. One of the legitimate causes of environmental tort is the danger of tort. No matter it is called no-fault liability, strict liability or danger liability, the cause of liability is not fault but danger. The danger should be understood as the tort that brings risk to others, that is, the hazard of a tort action. Risk liability is the accountability of risk, and the purpose of this kind of responsibility is to realize social equity. The grade of hazardous action is classified according to the illegality of different environmental tort actions, China’s judgment shows if the material pollution is heavy, so long as there is pollution consequence, it is necessary to bear the liability for damages, even if the discharge is up to the standard, consequently the substances discharged by such pollution actions are hazardous to the environment and human body, and it is unnecessary to consider whether the relevant emission standards are violated while judging the composition of human damage caused by environmental pollution. If the national standards and other emission standards do not affect the composition of tortious act, it should refer to the substantial pollution actions. Damages incurred when the pollution via legal fiction exceeds human tolerance.

The differences of the elements of illegality between the pollution act via legal fiction and the substantive pollution act are that the equality and interchangeability, which has no variations among the environmental torts such as sound, light and electricity, so there is no need for special imputation. When the equality and interchangeability of a certain kind of tort for the tortfeasor and the victim change, and the application of fault liability will lead to unfair results, we should consider the application of no-fault liability. The common characteristics for the application of no-fault liability accident include the universality and seriousness of the damage, the irreversibility of the victim’s damage, the disappearance of the interchangeability and equality between the victim and the tortfeasor’s status, and the difficulty in submitting evidence of the tortfeasor’s negligence. The basis for the severity of risk liability includes the starting and making of dangerous sources, the ability to control risks, the principle of profit and loss sharing the same destiny and the possibility of distributing responsibility. However, pollution actions via legal fiction do not meet these conditions. 

B. Verification of the Illegality of Ecological Damage

Chapter 8 of the Tort Law is not applicable to the relief of environmental and ecological function damage. The Civil Code has added the tortious actions of destroying ecological environment, the judgment of the illegality of this kind of actions needs to be analyzed from the way of harm incurred. There are two ways for tortious actions to damage the ecology: the first way is the tortious act causes ecological damage. Ecological damage is a phenomenon that human beings exploit and utilize environmental factors unreasonably, which leads to the destruction or reduction of environmental efficiency and ecological imbalance, furthermore to endanger the survival and development of human beings and other creatures. The second one is that the tortious act causes ecological damage, and then causes personal and property damage.

The provisions on the illegality of the damaging ecology are special, and there are some illegality elements of ‘breaking national regulations’ in the Civil Code, which are applicable to special circumstances. Among them, ‘violation of state regulations’ in article 1234 is the constituent element of the responsibility for restoring the ecological environment, while ‘violation of state regulations’ in article 1235 is the constituent element of requesting tortfeasor to compensate for losses and costs by organs or organizations prescribed by law. That is to say, in the cases of the negative consequences of ecological damage incurred from the tortious act, and then causing personal and property damage, the Civil Code does not clearly specify the special elements of illegality. Therefore, the factors affecting the determination of the illegality for ecological damage action are that the tortious act needs to be verified according to the infringed rights or legal interests.

To explain the rights infringed by ecological damage actions to be included in which category of the civil law, some people propose that the environmental rights should be defined as civil rights in the Civil Code, which should be juxtaposed with personal rights and property rights. The opposite stance believes that environmental rights are regarded as the concept of environmental law, which is not be proved as civil rights in the civil law, and are not real civil rights and interests. Subject, content and object of environmental right, as well as the boundary with other civil rights, are not clearly defined. The remedy of tort law to the damage caused by ecological damage is limited. The regulation on ecological damage and its relief in the book of tort liability wishes to solve the public law problems of environmental public interest litigation through tort law, a private law path, and private interest litigation cannot solve the basic problem of environmental public interest litigation in tort law. However, article 2 of the Tort Law protects a wide range of rights and interests, providing relief basis and space for the civil subjects’ personal rights, property rights and interests as well as pure economic losses. The Book of Tort Liability inherits this open attitude, and article 1164 stipulates that ‘this chapter regulates the civil relations arising from the infringement of civil rights and interests’. Among them, civil rights and interests belong to a broad concept, unnecessary to take environmental rights as civil rights to solve the relief problem of ecological damage action, personal or property damage caused by ecological damage is the relief of personal rights and property rights.

According to article 1234 of the Civil Code, which includes the requirements of violating the national regulations damaging ecological environment, paraphrasing the liability of ecological damage from the perspective of fault thinking, we can draw the conclusion that the Civil Code adopts the principle that is different from the no-fault liability taken by an ordinary environmental tort to handle ecological environment tort. However, the ‘violation of state regulations’ in article 1232 as the constitutive element of punitive damages is an illegality element, referring to violating regulatory norms for administrative prior evaluation, which is a judgment criterion in public law. This understanding is more conducive to system coordination. The ‘violation of state regulations’ is regarded as an illegality element while discussing the constitutive element of punitive damages in article 1232 of the Civil Code. Over here, ‘violation of state regulations’ in the act of damaging ecology is understood as an element of illegality, which is to judge whether it is illegality or not.

The ecological damage is diverse and complex, and the legal definition of ecological damage is not clear. Although some people mix it up, damaging ecology and ecological damage are different concepts. In this paper, ecological damage is regarded as the result of damaging ecology, one of the legal consequences of damaging ecology. The concept of ‘ecological damage’ is not definitive, which includes two categories: resource destruction of environmental tort and ecological damage (narrow sense) of an environmental tort, each category includes several specific forms. Among them, resource destruction of environmental tort can be subdivided into mineral resource damage, land resource damage, biological resource damage and specific environmental area damage, etc., and the ecological damage of environmental tort can be split into two sub-categories: pure ecological damage and mixed ecological damage.

V. THE THINKING OF COMBINING THE INFRINGED RIGHTS AND INTERESTS WITH TORTIOUS ACTS TO VERIFY THE ILLEGALITY OF ENVIRONMENTAL TORT RESPECTIVELY

As for the illegality of environmental tort, there is an opinion of verification for the sheer distinction between the tortious acts. For example, for environmental pollution tort, illegality is judged by the illegal result. This kind of distinction criterion has its rationality, but it fails to distinguish different tortious acts and fails to give consideration to the protection of rights and legal interests in different degrees. It is also proposed to define it from the perspective of violation of obligations to be performed and the tort of rights and interests to be protected. Although there are different angles between the violation of obligations and the protected rights and interests, the purpose is to protect the rights and interests, and there is still no distinction among tortious acts. Similar to the structure of ‘act, tort, and damage’ in article 823(1) of the German Civil Code, article 6(1) of the Tort Law stipulates that the direct consequence of tortious act is the infringement of civil rights and interests rather than damage, and damage is the direct consequence of infringement of civil rights and interests. Articles 1165 and 1166 of the Civil Code add the provision of ‘damage’, which is still the mode of ‘act, tort, and damage’. Initially, the idea of determining the illegality of right and interest protection from the perspective of comparative law.

A. A Comparative Law Study

The German and Japanese ideas are of great significance in comparative law. German law adopts the idea of distinguishing different rights and interests to determine illegality. The German Civil Code classifies the illegal acts with three clauses, namely, the act of infringing upon the absolute rights of others’ life, body and health, the act of violating the law for the purpose of protecting others, and the intentional tortious act against good customs and morals. As long as the rights listed in article 823(1) of the German Civil Code are violated, the tortious act is illegal and the result is illegal. The illegality in the sense of articles 823(2) and 826 is the illegality of act. Different methods are used to determine the illegality of act and outcome. Act illegality adopts the method of listing, the action is legal in principle, and then find out the exceptions with illegality according to certain standards. Result illegality uses exclusion method, initially verifies the act is illegal in principle, and then excludes the exception that does not constitute illegality.

The application scope is different between result illegality and act illegality. In Germany, the result violation theory is applicable to the rights clearly expressed in article 823(1) of the Civil Code, but not to the new rights created by the federal court in judicial practice. In the case of damage caused by tort and direct infringement, illegality is determined through the investigating results; in the field of inaction tort and indirect infringement, illegality is determined according to the violation of the actor’s obligations. According to the theory of act illegality, it should be examined from the perspective of infringing the obligation of communication (safeguard). The violation of organizational obligations can only be judged to be illegal. The organizational defects that violate the organizational obligations are indirect torts or inaction torts in the constituent elements, and are assessed as illegal according to the theory of act illegality.

Japan’s theory of illegality is deeply influenced by Germany. Article 709 of the Japanese Civil Code stipulates rights and the protection of legal interests. In terms of the judgment method of illegality, Wagatsuma Sakae advocates distinguishing different rights and legal interests, such as the infringed rights and the patterns of tort (violation of criminal law and regulations, violation of other prohibitive or regulatory provisions, violation of public order and good customs, abuse of rights, etc.), which are to be judged comprehensively with the relevant relationship theory. Even if the infringed interests are very serious, the illegality of the tortious act is rather small, and the illegality can be determined. According to the general theory in the Japanese Civil Code, the concepts of ‘tort of rights’ and illegality are interchangeable. The illegality can be understood by duality, which is divided into two categories: one is the tort against others interest, which is evaluated as illegality scenario (It is the occasion of tort against absolute rights in German law); the other occasion is even if the interests of others are infringed, the illegality determination has to resort to relevant relation theory to judge result prior.

The formulation of ‘violation of laws and regulations’ in the Japanese university bath case is closely linked to the theory of illegality. Scholar Mitsui proposed to distinguish rights and legal interests according to the types of illegality. Under the circumstance of infringement of absolute right, the violation of act should not break the general norm that the absolute right shall not be infringed, which is illegal as long as there are no justifications and exemptions. Under the circumstance of measurement, the violation of the specific duty of care is illegal. The violation of the specific duty of care is judged by the measurement and balance of the relevant relationship between the significance of the infringed interest and the form of the infringement.

Swiss legislation and judicial practice distinguish objective illegality from subjective illegality. The demonstrations of its illegality include the violation of absolute rights stipulated in a certain legal norm, absolutely protected legal interests and violation of the protective laws, which constitute illegality. Absolute rights or legal interests include life and life right, body and body integrity right, personality right and psychological integrity right, etc.

B. The Path China Should Choose

From the current legislation of China, the recognition of civil rights and civil interests are protected in various degrees by law, which lays the foundation for judging illegality by the method of distinction. The protection scope of the Book of Tort Liability includes rights and legal interests, but the degree of protection for different rights and legal interests is not the same.

On the judgment method for the illegality of environmental tort, it is recommended to distinguish different rights and legal interests, subsequently make specific judgment combining with the types of tortious acts. Even if there is no negligent liability, it also takes ‘intention activity is action’ as the essential element. One of the reasons why the traditional absolute rights are widely protected is that these contents have relatively clear characteristics, and the scope of protection is clear and obvious to the third party. A third person knows their existence and scope. Compared with rights, the judgment of illegality for the tort against legal interests is different. Extending the scope of protection from rights to legal interests, the abandoning of attaching more attention on rights in composition expands the protection scope of tort law, but also loses the normative function of the concept of rights. Therefore, the judgment of the constitution of the tort against legal interests needs to balance the relevant interests. In comparative law, the elements of tort liability in cases other than ‘physical tort against body or property’ should be judged first to determine whether there is ‘right infringement’. If not, determine whether there is a tort against interest, and if there is a tort against interest, then determine what kind of interest is infringed, and whether the tort against interest is often the key to decide whether the tort liability is established. A certain kind of interest has to go through the process of development and evolution from emergence to legal protection. Social development will make people produce new needs, subsequently, new interests to be protected. According to the needs of social life, judges may provide some means of protection for these interests in judicial practice, such as confirming that the interests protected by law are free from some tort. 

Environmental tort liability is a no-fault liability. Under this circumstance, the legal consequences of illegality are different according to the theory of illegal act or illegal result, particularly the circumstances that the rights and interests are infringed because of the action with social propriety. In this paper, the illegality of environmental tort is specifically determined according to the idea of distinguishing the rights and interests infringed and combining the types of tortious acts. According to this idea, it is suggested that the criteria and methods for judging the illegality of environmental tort in China are as follows:

Table 2: The Criteria and Methods for Judging the Illegality of Environmental Tort in China

VI. REMAINING THEORY

A. Factors Influencing the Judgment of Environmental Illegality

The special protection of different personality rights in the Civil Code makes it possible to distinguish and judge the illegality of environmental tort act according to the infringement of different rights and interests. Article 998 of the Civil Code stipulates that, in determining that the actor bears the civil liability for infringing the right of personality except for the right of life, the right of body and the right of health, the occupation, the scope of influence, the degree of fault of the actor and the victim shall be taken into account, and such factors as the purpose, manner and consequence of the act should be considered. Article 1005 stipulates that when the right to life, body and health are infringed or in danger, the relevant subjects shall help in time. It can be seen from these two provisions that the current legislation of China determines that the right to life, the right to health and the right to the body are the priority in the interest measurement of the protection of rights and legal interests. The basic spirit of the civil law is to distinguish the right to life, the right to health, the right to the body from other rights of personality and the right to property to be protected in different levels. In addition, the right to life, the right to body and the right to health are mature and well-defined types of rights in the theory of civil law in China, which are suitable for the application of the theory of consequence violation.

Illegality needs to be judged by integrating various factors and the judge should be given the space to exercise their discretion. Factors such as the severity of harmful acts, the performance of obligations, the public utility of business, etc., can help to determine the illegality of acts.

Some scholars believe that the obligation to be performed in violation of the law directly infringes the rights and interests of others, or under certain circumstances do not take measures to protect the rights and interests of others, the behavior is illegal.

The consideration of these factors is actually the specific measurement of balancing of interest. That is, starting from adjusting the legal norms of environmental infringement disputes, the problems to be solved by these norms are classified, and then the relevant interests involved in this type of environmental infringement are clarified. The consideration of the violation of the law of environmental tort is an issue that requires the court to reach a conclusion after comprehensive balance in the case, which largely depends on the exercise of scientific discretion.

B. The Judgment of Illegality and Its Other Functions

In addition to being the constitutive element of tort liability, the illegality of environmental tort has the function of controlling the size of tort liability and grade of liability. In addition to the judgment of whether there is illegality or not, the illegality judgment can evaluate the grade. The grade of illegality has a significant impact on tort liability. Under the mode of ‘act, tort, and damage’ defined in the Tort Law and articles 1165 and 1166 of the Civil Code, in addition to rights, there is also tort against legal interests. It is helpful to control the scope of liability to distinguish the degree of illegality of different rights and legal interests and to determine the liability for damages. Article 1231 stipulates that if two or more tortfeasors pollute the environment or damage the ecology, the extent of their liability shall be determined according to the type, concentration and discharge of pollutants, the way, scope and extent of ecological damage, and the effect of the act on the consequences of damage.

This is generally supported by comparative law. For example, after the EU Environmental Responsibility Directive came into effect in 2004, Finland published the Law on Remediation of Specific Environmental Damage and the Act on Remediation of Specific Environmental Damage, as well as amended the Environmental Protection Law, the Natural Conservation Law, the Water Law, the Genetic Technology Law and the Transport Law of Hazardous Goods. The Law on Remediation of Specific Environmental Damage is applicable to the treatment of water damage, species and habitat damage, while the Environmental Protection Law is applicable to the treatment of soil and groundwater pollution. Generally, the damage-causing operator should bear the cost of implementing remedial measures, as well as the assessment cost for damage and damage threats, formulation of remedial plan and supervision of implementation by the responsible authority. When the operator complies with the decision issued by the relevant authorities and causes damage due to discharge or other similar events, or the operator’s operation behavior complies with the relevant supervision and management legislation, but still causes damage, the operator shall prove that he has exercised due diligence when engaging in the above-mentioned behaviors, and its compensation liability shall be reduced or exempted accordingly.

In the implementation of the Civil Code, we should pay attention to distinguish different degrees of the illegality of environmental tortious act so as to help in determining the function toward the scope of liability for damage compensation, etc. For substantial pollution, the emission standard is not regarded as an element of illegality, but as an element of responsibility control and duty sharing. The emission standard is regarded as an element of illegality to the pollution via legal fiction. There should be a correlation between the degree of exceeding the emission standard (i.e., the degree of illegality) and the degree of responsibility. In practice, we should also explore and summarize the experiences of illegality in controlling the grade of ecological damage liability, so as to give full play to its function.

In the judgment of the illegality of environmental tort, there are still many unresolved issues, such as how to judge the illegality of joint tort. Further research is needed.