环境污染责任之违法性判断

环境污染侵权责任需以行为人之行为具有违法性为要件。对于违法性之判断,除应考虑被害人所受损害之程度外,加害人行为对于加害人自己及社会上一般大众的效益,亦应一并予以考虑。因而违法性之判断,在纠正正义与功利主义之间,如何取舍,成为环境污染责任的重要议题。

The Judgment of Illegality of Environmental Pollution Liability

Based on the prevailing opinion on the requirement of wrongfulness of the tortfeasor’s act, this article examines the concept of wrongfulness in the case of enviromental pollution in a comparative perspective. Two theories on the wrongfulness have been developed: the serious loss theory and the utilitarianism theory. Under the serious loss theory, a tort liability shall be imposed provided that the plaintiff suffered serious loss due to the tortfeasor’s act. It argues that the tortfeasor’s act is wrongful since it incurs serious loss on the plaintiff. Under the utilitarianism theory, when deciding the wrongfulness issue, the court has to take into account the fact that the defendant’s activities might be good and beneficial to the society as a whole. The loss of the plaintiff should not be the only consideration. The article argues that the court should consider both the loss of the plaintiff and the utility of defendant’s activities in order to make a sound decision on the wrongfulness of nuisance.