【摘要】 《民法典·侵权责任编(草案)》"一审稿"通过"生态环境损害责任"统摄环境侵害救济,选择了环境公私益损害复合性立法路径,体现了民事环境侵权立法理念的重大突破,但在法律概念界定和具体责任构成要件设计上,"生态环境损害责任"都过分强调公平与秩序,而对民事主体个人自由价值的保障不足。本文基于对环境公私益损害间差异性的辨析,建议将二者进行类型化界分,在厘清法律概念的前提下,对环境公益损害责任适用过错推定的归责原则,且因果关系证明责任不倒置、违法性要件不排除。更多还原

【Abstract】 How could the tort law relieve the pure ecological damage? This has been a long debated issue in the academic field. The Newly drafted Tort Liability Law of Chinese Civil Code( Drafe) has proposed a possible pathway to relieve the ecological damage.While adopting the dominating concept " liability for ecological damage",the draft has opted to simply mix the legal relief for the public and private environmental interest,which embodies a major breakthrough in the legislative concept of civil environmental infringement. However,in the definition of legal concept and the design of specific components of liability,the concept of " liability for ecological damage" overemphasizes fairness and order,while provides insufficient guarantee to the value of individual freedom of civil subjects. Based on the analysis of the difference between public and private interests damage to the environment,this paper proposes to classify the two. On premise of the classification,the principle of fault presumption should be applied to the liability for damage to the public interests of the environment,with the burden of proof of causality not being inverted and the elements of illegality not being excluded.更多还原