Article 1235 of the Civil Code stipulates that the infringer must compensate the losses and expenses caused by environmental pollution and ecological destruction.

term of a statute

Article 1235 of the Civil Code on the Liability for Ecological Environment Damage

Article 1235 Where a violation of state regulations causes damage to the ecological environment, an organ prescribed by the state or an organization prescribed by law has the right to demand compensation from the infringer for the following losses and expenses:

(a) losses caused by the loss of service function from the destruction of ecological environment to the completion of restoration;

(two) losses caused by the permanent destruction of the ecological environment function;

(three) the cost of investigation, identification and evaluation of ecological environmental damage;

(four) the cost of cleaning up pollution and repairing the ecological environment;

(5) Reasonable expenses incurred to prevent the occurrence and expansion of damage.

Lawyer's explanation

Before the promulgation of the Civil Code, the Supreme People's Court stipulated the contents of compensation for ecological environment damage through judicial interpretations in different fields, such as environmental tort litigation, environmental civil public interest litigation and ecological environment damage compensation litigation.

The Judicial Interpretation of Environmental Civil Public Interest Litigation, which was implemented on June 20 15, stipulated the reasonable litigation expenses such as the cost of ecological environment restoration, the loss of service function during the period when the ecological environment was destroyed to its original state, inspection and appraisal fees, and reasonable attorney fees.

The Judicial Interpretation of Environmental Tort Disputes, which came into effect on June 20 15, stipulates that the victims of environmental tort litigation can claim compensation for personal and property losses, ecological environment restoration expenses and emergency disposal expenses.

The Regulations on Compensation for Ecological Environment Damage, which came into effect in June 2009, clarified that the plaintiff can investigate, inspect and identify the emergency disposal expenses, ecological environment repair expenses, service function loss from ecological environment damage to the completion of repair, losses caused by permanent damage to ecological environment function, compensation consultation and litigation expenses for ecological environment damage on the basis of the provisions of the Reform Plan for Ecological Environment Damage System of General Offices of the General Office of the Central Committee of the CPC and the State Council.

As can be seen from the above provisions, with the firm promotion of the construction of ecological civilization and the continuous improvement of the legal system of ecological environment in China, the content and scope of judicial practice on ecological environment damage and its legal compensation are also expanding day by day, and the provisions on compensation for ecological environment damage have reached a relatively perfect level. Comparatively speaking, the five aspects of compensation for ecological environment damage stipulated in this article of the Civil Code are basically consistent with the Reform Plan of Compensation System for Ecological Environment Damage and the Provisions on Compensation for Ecological Environment Damage, which responds to the practical needs of compensation for ecological environment damage and fully absorbs the experience accumulated in judicial practice in recent years.

One is the loss caused by the loss of service function during the period from the destruction of ecological environment to the completion of restoration.

During the period from the destruction of ecological environment to the completion of restoration, the loss caused by the loss of service function is called period loss. From the perspective of environmental law, the functions of eco-environmental services include providing services (such as providing food and water), regulating services (such as regulating climate and controlling floods), cultural services (such as spiritual entertainment and cultural benefits) and supporting services (such as maintaining the nutrient cycle of the earth's living environment), including not only the function of serving people, but also the function of serving other eco-environmental elements. The Recommended Method for Identification and Assessment of Environmental Damage (Second Edition) defines the period damage as the loss or reduction of services provided by the ecological environment to the public or other ecosystems due to changes in its physical, chemical or biological characteristics, that is, the loss of ecosystem services provided by the damaged ecological environment from the time of damage to the time of restoration to the baseline state. The Technical Guide for Identification and Assessment of Ecological Environmental Damage defines the period damage as the loss or reduction of services provided by the ecosystem to the public or other ecosystems during the period from the occurrence of ecological environmental damage to the restoration of the ecological environment to the baseline. The loss caused by the loss of service function, that is, the loss caused by the loss of all or part of the above functions from the beginning of the destruction of the ecological environment to the restoration of the original state, belongs to the scope of compensation stipulated in this article. It is worth noting that the provision for soliciting opinions from the society is "the loss caused by the loss of service function during the restoration of ecological environment", and it was "the loss caused by the loss of service function during the period from the destruction of ecological environment to the restoration" when it was submitted to the First Session of the 13th National People's Congress for discussion. Compared with the final draft, it can be seen that legislators intend to modify it. First, it highlights the scope of the restoration period, from the destruction of the ecological environment to the completion of the restoration; The second is to define the scope of the period loss from the perspective of repair, and the period loss can be calculated before the repair work is completed; Thirdly, it shows that the restoration of ecological environment is not measured by restoration, but by restoration to the original level of ecological function. By reducing this statement with quantitative indicators, it is further clear that the ecological environment cannot be restored to its original state.

Second, the loss of permanent damage to the ecological environment function.

The Recommended Method for Identification and Assessment of Environmental Damage (Second Edition) defines permanent damage from the perspective of technical specifications, which means that "the damaged ecological environment and its functions are difficult to recover, and the ability to provide services to the public or other ecosystems is completely lost". Permanent damage is not absolutely irreversible, but "difficult to recover". Because the recoverability of damage needs to consider not only the technical feasibility of restoration engineering measures, but also the economic rationality of restoration engineering measures, that is, cost-benefit analysis is needed. Some environmental pollution and ecological destruction are irreversible, because the limitations of current scientific and technological cognition and the lack of technical means make recovery difficult to achieve. Although some damage consequences caused by environmental pollution and ecological destruction can be repaired, the cost of the restoration project is far higher than the ecological service function value of the destroyed ecological environment, so we may not choose to repair it in a short time. For this part of the damage, in environmental litigation, the specific amount of damage is generally determined by means of judicial expertise, evaluation or reference to expert opinions.

Three, the ecological environment damage investigation, identification and evaluation costs.

After the occurrence of environmental pollution and ecological damage, the competent departments of environmental protection, agriculture, forestry, grassland, fishery, ocean and so on often organize the investigation of ecological environmental damage, and finally form an incident investigation report through various technical means such as inspection, detection and evaluation. Social organizations and people's procuratorates will also conduct pre-litigation investigations and collect evidence to understand the damage to the ecological environment. In addition, in order to determine the ecological environment damage, it is necessary to use means such as identification and evaluation. These tasks can't be completed by the parties alone, and often need to rely on third-party professional institutions, and may also use related professional instruments and equipment, which will generate corresponding expenses. It should be noted that for administrative organs, the investigation stipulated in this regulation is a special investigation conducted by administrative organs after the occurrence of ecological environment damage, which is different from the general administrative law enforcement behavior of administrative organs. The investigation work carried out by the people's procuratorate and social organizations should be in a certain form. If two or more people hold corresponding identification certificates to carry out the investigation work and issue an investigation report, the expenses incurred should have corresponding bills.

Cases of environmental pollution and ecological damage often involve specialized issues such as pollutant identification and loss assessment, which require expert opinions from judicial authentication institutions. Appraisal refers to that a professional or institution with corresponding ability and qualification, entrusted by an individual, department or institution with corresponding power or management function, puts forward an objective, fair and authoritative technical arbitration opinion on something based on conclusive data or evidence and corresponding experience and analysis as evidence or basis for the entrusting party to handle related contradictions or disputes. Appraisal and evaluation of environmental damage refers to the process that appraisal and evaluation institutions comprehensively use science and technology and professional knowledge to evaluate the scope and degree of environmental damage caused by environmental pollution or ecological damage, determine the causal relationship between environmental pollution or ecological damage and environmental damage, determine the restoration measures to restore the ecological environment to the baseline state and compensate for the losses during the period, and quantify the amount of environmental damage. It should be noted that, generally speaking, the parties can apply to the people's court for appraisal and evaluation on the related issues of ecological environment damage in the course of litigation. However, many ecological and environmental damages are sudden and immediate, and if the evidence is not fixed quickly, the damage consequences may be fleeting. Therefore, if a party conducts appraisal and evaluation of ecological environment damage before litigation and obtains appraisal report and evaluation report, it can be submitted as evidence in the course of litigation, and the people's court can accept it after cross-examination meets the standard of evidence. The parties may also require the infringer to bear the appraisal and evaluation fees.

Fourth, the cost of cleaning up pollution and restoring the ecological environment.

This item only refers to the cost of ecological restoration stage, including two parts, one is the cost of pollution removal, and the other is the cost of ecological environment restoration.

After the occurrence of environmental pollution and ecological damage, according to the results of field investigation and preliminary environmental damage monitoring, the pollution factors, pollution types and pollution objects are initially determined, and the damage scope is determined according to the diffusion route of pollutants, so as to carry out environmental damage assessment in the emergency disposal stage. After quantifying the damage, judge whether to start the medium and long-term damage assessment and repair work. The expenses for cleaning up the pollution and restoring the ecological environment mentioned in this item refer to the expenses incurred for restoring the ecological environment damage when the concentration level of pollutants in the environmental medium exceeds the baseline level and it is difficult to restore the baseline level within 1 year, or when the potential threat to public health or the ecological environment caused by the secondary pollution caused by the emergency disposal action is not completely eliminated. Therefore, the above two types of expenses stipulated in this item are different from the emergency disposal expenses stipulated in item 5 and should be distinguished.

1. In order to standardize and guide the environmental damage assessment in the emergency disposal stage of environmental emergencies, the Ministry of Environmental Protection organized and compiled the Recommended Methods for Environmental Damage Assessment in the Emergency Disposal Stage of Environmental Emergencies (Huanban [2065 438+04] 165 438+08). Research purposes: To preliminarily evaluate the scope and degree of personal injury, property loss and ecological environment damage caused by sudden environmental incidents, calculate the quantifiable emergency disposal expenses, personal injury, property loss, ecological environment damage and other direct economic losses in the emergency disposal stage, and divide the degree of ecological function loss. According to the recommended measures, emergency disposal expenses refer to the expenses incurred by actions and measures taken by governments at all levels and relevant units to reduce or eliminate the harm to public health, public and private property and ecological environment in the process of emergency disposal of environmental emergencies, and to deal with possible or already occurred environmental emergencies. In other words, emergency disposal expenses refer to the expenses incurred to prevent the damage from happening or expanding, and this pollution removal expense refers to the expenses incurred by taking necessary and reasonable measures to eliminate and clean up the consequences caused by environmental pollution in a timely and effective manner.

2. If the damaged ecological environment can be repaired, the defendant shall bear the responsibility of ecological environment repair. After the damage to the ecological environment occurs, the infringer's primary responsibility is to repair the damaged ecological environment, not just to compensate for the losses. Article 1234 of the Civil Code has made it clear that if the ecological environment can be repaired, it should be repaired as much as possible; if it cannot be repaired or completely repaired, it should pay the expenses needed to repair the ecological environment. Therefore, the ecological environment restoration cost is the ecological environment restoration cost that the infringer should bear on the basis of not fulfilling the restoration obligation. According to the provisions on judicial interpretation of environmental civil public interest litigation and compensation for ecological environment damage, the cost of ecological environment restoration also includes the cost of formulating and implementing the restoration plan, the cost of monitoring and supervision during the restoration, the cost of acceptance after the restoration is completed, and the cost of post-evaluation of the restoration effect.

5. Reasonable expenses for preventing the occurrence and expansion of damage.

The reasonable expenses incurred to prevent the occurrence and expansion of damage belong to the expenses of preventive measures in emergency disposal, which refers to the expenses incurred by necessary and reasonable measures or measures to be taken to prevent and contain the occurrence and expansion of environmental damage. After the occurrence of environmental emergencies, all relevant localities, departments and units shall, according to the needs of the work, organize and take measures such as on-site pollution disposal and transfer of resettlement personnel. Enterprises, institutions or other producers and operators involved shall immediately take measures such as closing, stopping production, blocking, enclosure, spraying and transfer to cut off and control pollution sources and prevent the spread of pollution. At the same time, do a good job in the collection, cleaning and safe disposal of toxic and harmful substances, fire fighting wastewater and waste liquid. When the enterprises, institutions or other producers and operators involved are unknown, the local competent department of ecological environment shall organize an investigation on the pollution sources, identify the units involved, determine the types and scope of pollutants, and cut off the pollution sources. The people's government at the place where the incident occurred shall organize the formulation of a comprehensive pollution control plan, and track the diffusion route and scope of polluted gas through monitoring, simulation and other means. Take sewage interception, diversion, dredging and other ways to prevent water pollution from expanding; Take the methods of isolation, adsorption, salvage, redox, neutralization, precipitation, disinfection, decontamination, temporary storage, microbial digestion, water transfer and dilution, transfer to other places for disposal, temporary transformation of pollution disposal technology or temporary construction of pollution disposal projects to dispose of pollutants. When necessary, ask other sewage units to stop production, limit production and discharge, and reduce the environmental pollution load. The expenses incurred by taking the above measures, except the pollution removal expenses in Item 4, belong to the "reasonable expenses incurred to prevent the occurrence and expansion of damage" as stipulated in this Item.

It should be pointed out that after an environmental emergency, it is necessary to repair or restore the ecological environment, and the repair or restoration scheme can be completed within the time limit specified in the environmental damage assessment at the emergency disposal stage, the ecological environment damage is calculated according to the implementation cost of the ecological environment repair or restoration scheme, and the ecological environment damage calculated according to the repair or restoration cost is included in the direct economic loss. In this way, it also belongs to the losses and expenses that can be claimed in this item.

In addition to the losses and expenses in the above five aspects specified in this article, the reasonable legal fees and other reasonable expenses incurred by the organs or organizations specified by the state for exercising the right of claim for environmental public welfare tort liability can of course be required to be borne by the infringer who violates the state regulations and causes damage to the ecological environment.

Six, the management and use of ecological environment restoration costs

The primary responsibility of environmental public welfare infringement is to repair the ecological environment. The cost of ecological environment restoration is based on the principle that it is actually used for ecological environment restoration. According to Article 1234 of the Civil Code, if the infringer fails to repair the ecological environment within a reasonable period of time, it can be repaired by an organ prescribed by the state, an organization prescribed by law or a third-party repair institution, and the required repair expenses shall be borne by the infringer and paid to the subject who actually performs the repair obligation. In the trial practice, local courts have explored diversified ways of fund management and use, set up public interest litigation funds, or set up special fund accounts for public interest litigation and provincial soil pollution remediation funds by local financial departments. Therefore, the relevant restoration expenses will be put into the above-mentioned accounts or funds, and with the supervision and participation of people's courts, ecological environment supervision and management departments, procuratorial organs, social organizations and the public, the funds will be really used for ecological environment restoration.

Seven, the management and use of ecological environment damage compensation.

All kinds of losses stipulated in this article belong to the category of compensation. According to the provisions of this article, the liability for damages borne by infringers who pollute the environment and destroy the ecology can be divided into two categories. One is the loss of ecological environment service function, including 1 ~ 2 items, which are the loss caused by the loss of service function during the period from destruction to completion of restoration and the loss caused by the permanent destruction of ecological environment function; Second, the actual losses caused by the organs and organizations stipulated by the relevant state to deal with environmental pollution and ecological damage and repair the damaged ecological environment include the expenses stipulated in items 3 to 5 of this article, that is, the expenses for investigation, appraisal and evaluation of ecological environmental damage, the expenses for cleaning up pollution and repairing the ecological environment, and the reasonable expenses for preventing the occurrence and expansion of damage. The compensation for the damage of ecological environment service function is the compensation fee for the damage of ecological environment, not the personal and property losses of a specific natural person, legal person or unincorporated organization. Therefore, relevant damages should be paid to the national treasury or public interest litigation funds, special fund accounts, provincial soil pollution remediation funds, etc. As a loss of public interest, and used for the overall ecological environment protection. The second category of expenses stipulated in this article refers to the expenses paid by the relevant subjects dealing with pollution, destruction and restoration of the ecological environment-organs stipulated by the state and organizations stipulated by law. Such compensation expenses should be paid to specific subjects to make up for the property losses that have occurred.

Eight, the management and use of ecological environment damage compensation funds

Eco-environmental damage compensation fund is a proprietary concept based on the reform plan of eco-environmental damage compensation system. According to Article 2 of the Measures for the Administration of Compensation Funds for Ecological Environment Damage (Trial) (Ministry of Finance, Ministry of Natural Resources, Ministry of Ecology and Environment [2020] No.6) jointly issued in March 2020, "The compensation funds for ecological environment damage mentioned in these Measures refers to the ecological environment damage. After the incident, the ecological environment damage cannot be repaired or completely repaired, and the compensation obligor fails to perform or not fully perform his obligations.

According to the second paragraph of Article 6 of the Measures for the Administration of Compensation Funds for Ecological Environmental Damage (Trial), "the compensation funds for ecological environmental damage, as non-tax revenue of the government, shall be collected by the state treasury in a centralized way and turned over in full to the state treasury of the departments and institutions designated by the compensation obligee, and shall be included in the general public budget management". Accordingly, in the case of compensation for ecological environment damage, in addition to the compensation obligor repairing or entrusting a social third-party organization with repairing ability, in the case that the ecological environment damage cannot be repaired or can not be completely repaired, and the infringer fails to perform his obligations or fails to fully perform his obligations, the repair fees and damages collected according to the effective judgment of the court shall be turned over to the state treasury. Provincial, municipal, prefecture-level governments and their designated departments and institutions are responsible for the use and management of compensation funds for ecological environment damage, and coordinate the local ecological environment restoration work. The people's court shall do a good job in the implementation of the effective judgment and put the compensation fee for ecological environment damage in place.

In addition, article 15 of the Measures for the Administration of Compensation Funds for Ecological Environmental Damage (Trial) also makes reference to the applicable provisions. "In environmental civil public interest litigation, the compensation funds for damages determined by the effective legal documents of the people's court that the ecological environment can't be repaired or can't be completely repaired, and the expenses for repairing the ecological environment that should be paid when the compensation obligor fails to perform or fails to fully perform his obligations can be managed with reference to the provisions of these measures; If it is necessary to restore the ecological environment, the people's court shall promptly transfer it to the provincial and municipal people's governments and their designated relevant departments and institutions for implementation. " This provision provides an additional channel for the management and use of the repair compensation fees determined by the effective judgment of environmental civil public interest litigation. Local people's courts should continue to explore the establishment of public trust funds in combination with the needs of ecological environment protection and restoration and the specific circumstances of environmental civil public interest litigation cases, support the financial departments to set up special funds accounts for public interest litigation and provincial funds for soil pollution restoration, or implement general public budget management with reference to the Measures for the Administration of Compensation Funds for Ecological Environment Damage (Trial), and manage and make good use of the compensation funds for environmental civil public interest litigation restoration.

It should be noted that, based on the professional, complex, systematic and overall needs of ecological environment restoration, Article 2 1 of the Provisions on Compensation for Ecological Environment Damage stipulates that "if it is necessary to restore the ecological environment, the provincial and municipal people's governments and their designated relevant departments and institutions shall organize the implementation according to law". Referring to the Measures for the Administration of Compensation Funds for Ecological Environmental Damage (Trial), when managing the compensation funds for environmental civil public interest litigation, "if it is necessary to repair the ecological environment, the people's court shall promptly transfer it to the provincial and municipal people's governments and their designated relevant departments and institutions for implementation".