环境侵权司法鉴定问题研究
发布时间：2018-08-11 19:27
【摘要】：环境侵权司法鉴定,是指在环境侵权诉讼活动中,依法取得有关环境司法鉴定资格的鉴定机构和鉴定人,接受法院或当事人委托,依据环境保护法律法规和有关国家、部门、行业标准以及有关环境科学知识,对影响环境的物理指标、化学指标和生态系统等环境侵权纠纷诉讼涉及的专门性、专业性问题进行检验、鉴别和判断,并向法庭提供鉴定意见的活动。近年来,我国环境形势严峻,环境污染和生态破坏现象触目惊心,由此而导致的环境纠纷案件也急剧攀升。各地法院顺势而为,纷纷设立了专门性的环境保护审判机构,意欲集中审理各类环境案件。然而,环境侵权的受害人真正通过诉讼途径解决问题的情况却少之又少。其中重要的原因就是我国环境侵权司法鉴定立法的严重滞后,以及学术研究成果的极度匮乏,导致了实务中环境侵权案件立案难、举证难、定损难以及责任认定难的局面。本文试图在考察两大法系环境侵权司法鉴定制度和实践,并分析我们环境侵权司法鉴定现状和存在问题的基础上,提出可行性建议和立法构想。本文分引言、正文和结语三个部分。引言部分,主要是引出问题,并简要分析我国环境侵权司法鉴定的现实状况和问题,并简要阐述了我国环境侵权司法鉴定的立法状况和学术研究情况。第一章,关于环境侵权司法鉴定的基本理论。笔者主要分析了环境侵权的概念和特征,司法鉴定的概念、特征、分类、原则以及鉴定意见的证据属性,环境侵权司法鉴定的概念、特征、内容、层次及研究内容。第二章,我国环境侵权司法鉴定的发展与现状。通过对环境形势严峻导致环境纠纷频发,但通过诉讼途径解决的却比较少这个现实矛盾和困惑,笔者详细分析了我国鉴定机构的发展现状及现行环境侵权司法鉴定制度。第三章,我国环境侵权司法鉴定之完善。在前文对现状分析的基础上,笔者探讨了我国环境侵权司法鉴定制度存在的诸多问题。通过调研和文献研究的方法,分析了我国个别法院审理环境侵权案件的实践创新。针对现存问题和实践创新,结合两大法系的环境司法鉴定制度和实践,从立法、鉴定管理、鉴定实施、鉴定责任以及鉴定意见适用等角度提出了一些完善我国环境侵权诉讼法律制度的立法构想。
[Abstract]:Judicial identification of environmental tort means that in environmental tort litigation activities, institutions and experts who have obtained the qualification for environmental judicial expertise in accordance with the law accept the entrustment of the court or the parties and, in accordance with the laws and regulations of environmental protection and the relevant countries and departments, Industry standards and relevant environmental scientific knowledge, to examine, identify and judge the specific and professional issues involved in environmental tort litigation such as physical indicators, chemical indicators and ecosystems that affect the environment, And providing an expert opinion to the Tribunal. In recent years, the environmental situation of our country is severe, the phenomenon of environmental pollution and ecological destruction is shocking, and the cases of environmental disputes caused by this phenomenon also rise sharply. According to the trend, local courts have set up specialized environmental protection judicial institutions to try all kinds of environmental cases. However, the victims of environmental infringement really through the way of litigation to solve the problem is rare. One of the important reasons is the serious lag of the legislation of judicial identification of environmental tort in our country, and the extremely lack of academic research results, which leads to the difficulty of filing environmental tort cases in practice, the difficulty of proof, the difficulty of determining damage and the difficulty of determining liability. On the basis of investigating the system and practice of judicial identification of environmental tort in two legal systems, and analyzing the present situation and existing problems of judicial identification of environmental tort, this paper puts forward some feasible suggestions and legislative ideas. This article is divided into three parts: introduction, text and conclusion. In the preface part, it mainly introduces the problems, and briefly analyzes the current situation and problems of the judicial identification of environmental tort in China, and briefly expounds the legislative situation and academic research of the judicial expertise of environmental tort in China. The first chapter is about the basic theory of environmental tort judicial identification. The author mainly analyzes the concept and characteristics of environmental tort, the concept, characteristics, classification, principles and evidential attributes of appraisal opinions, and the concept, characteristics, contents, levels and research contents of environmental tort judicial identification. The second chapter, the development and present situation of environmental tort judicial identification in China. Through the serious environmental situation leading to frequent environmental disputes, but through the way of litigation to solve a relatively few of this realistic contradiction and confusion, the author analyzed in detail the status quo of the development of our country's authentication institutions and the current system of judicial identification of environmental tort. The third chapter, our country environment torts the judicial appraisal consummation. On the basis of the analysis of the present situation, the author discusses the problems existing in the judicial identification system of environmental tort in China. By means of investigation and literature research, this paper analyzes the practice innovation of environmental tort cases in individual courts in China. Aiming at the existing problems and practice innovation, combining the environmental judicial identification system and practice of the two legal systems, from the legislation, appraisal management, appraisal implementation, This paper puts forward some legislative ideas to perfect the legal system of environmental tort litigation in China from the point of view of appraising responsibility and the application of appraisal opinions.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923;D926
本文编号：2178013
[Abstract]:Judicial identification of environmental tort means that in environmental tort litigation activities, institutions and experts who have obtained the qualification for environmental judicial expertise in accordance with the law accept the entrustment of the court or the parties and, in accordance with the laws and regulations of environmental protection and the relevant countries and departments, Industry standards and relevant environmental scientific knowledge, to examine, identify and judge the specific and professional issues involved in environmental tort litigation such as physical indicators, chemical indicators and ecosystems that affect the environment, And providing an expert opinion to the Tribunal. In recent years, the environmental situation of our country is severe, the phenomenon of environmental pollution and ecological destruction is shocking, and the cases of environmental disputes caused by this phenomenon also rise sharply. According to the trend, local courts have set up specialized environmental protection judicial institutions to try all kinds of environmental cases. However, the victims of environmental infringement really through the way of litigation to solve the problem is rare. One of the important reasons is the serious lag of the legislation of judicial identification of environmental tort in our country, and the extremely lack of academic research results, which leads to the difficulty of filing environmental tort cases in practice, the difficulty of proof, the difficulty of determining damage and the difficulty of determining liability. On the basis of investigating the system and practice of judicial identification of environmental tort in two legal systems, and analyzing the present situation and existing problems of judicial identification of environmental tort, this paper puts forward some feasible suggestions and legislative ideas. This article is divided into three parts: introduction, text and conclusion. In the preface part, it mainly introduces the problems, and briefly analyzes the current situation and problems of the judicial identification of environmental tort in China, and briefly expounds the legislative situation and academic research of the judicial expertise of environmental tort in China. The first chapter is about the basic theory of environmental tort judicial identification. The author mainly analyzes the concept and characteristics of environmental tort, the concept, characteristics, classification, principles and evidential attributes of appraisal opinions, and the concept, characteristics, contents, levels and research contents of environmental tort judicial identification. The second chapter, the development and present situation of environmental tort judicial identification in China. Through the serious environmental situation leading to frequent environmental disputes, but through the way of litigation to solve a relatively few of this realistic contradiction and confusion, the author analyzed in detail the status quo of the development of our country's authentication institutions and the current system of judicial identification of environmental tort. The third chapter, our country environment torts the judicial appraisal consummation. On the basis of the analysis of the present situation, the author discusses the problems existing in the judicial identification system of environmental tort in China. By means of investigation and literature research, this paper analyzes the practice innovation of environmental tort cases in individual courts in China. Aiming at the existing problems and practice innovation, combining the environmental judicial identification system and practice of the two legal systems, from the legislation, appraisal management, appraisal implementation, This paper puts forward some legislative ideas to perfect the legal system of environmental tort litigation in China from the point of view of appraising responsibility and the application of appraisal opinions.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923;D926
【参考文献】
相关期刊论文 前1条
1 袁春湘;;2002年—2011年全国法院审理环境案件的情况分析[J];法制资讯;2012年12期
，本文编号：2178013
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