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Transplanting Civil Law Models in China: Compensation of Personal Damages Caused by Environmental Pollution
- Edited by Barbara Pozzo, Valentina Jacometti
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- Book:
- Environmental Loss and Damage in a Comparative Law Perspective
- Published by:
- Intersentia
- Published online:
- 26 May 2021
- Print publication:
- 13 January 2021, pp 331-354
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Summary
INTRODUCTION
China is today facing very high levels of pollution and its associated large human and economic costs, because of the burden placed by environmental pollution on both natural resources and on the population's well-being and health.
Although the problem of environmental pollution has traditionally been largely neglected in China, even when the Chinese environmental situation sharply deteriorated as the consequence of the fast industrial development of the country at the end of the last century, it must be highlighted that that enduring attitude has recently undergone a profound change. Indeed, probably as a consequence of the increased general awareness of the dangers of environmental pollution and of the huge economic development enjoyed by the county, the new century has brought with it a different political approach to the issue.
That different approach started in 2014 with the declaration of war on pollution by Li Kequiang and was shortly after confirmed during the 19th National Congress of the Communist Party of China, in October 2017, when President Xi Jinping clearly reaffirmed China's commitment to sustainable development and a “beautiful China”. On that occasion, in fact, President Xi Jinping affirmed that “[t]he modernization that we pursue is one characterized by harmonious coexistence between man and nature” and that “[i]n addition to creating more material and cultural wealth to meet people's ever-increasing needs for a better life, we need also to provide more quality ecological goods to meet people's ever-growing demands for a beautiful environment”.
The seriousness of the government's intentions was soon revealed by the efforts dedicated to the task, the successes already acquired and the severe enforcement of administrative violations by central authorities. In practice, the actions of the central government aimed at reducing environmental pollution are apparently reaching their goals.
Unfortunately, the goal of compensating the victims of the same pollution have apparently not yet been attained, although the same central government enacted rules aimed at that purpose. It is interesting to observe that those rules are shaped on civil law models, following traditional paths of negligence and strict liability. Those rules have features that have proved to work well, or at least to be sufficiently satisfying, in many civil law countries, where they are routinely applied to compensate damages caused by environmental pollution.
Chapter 5 - Risk and Italian Private Law
- from Part I - Risk Overviews
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- By Nadia Coggiola, University of Turin, Bianca Gardella Tedeschi, Università del Piemonte Orientale – UPO (University of Eastern Piedmont)
- Edited by Matthew Dyson
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- Book:
- Regulating Risk through Private Law
- Published by:
- Intersentia
- Published online:
- 13 October 2018
- Print publication:
- 31 January 2018, pp 113-138
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Summary
The Italian Civil Code (c.c.), the main source of law for extracontractual liability (for present purposes, equivalent to ‘tort’), does not specify risk-taking or -producing as a source of extracontractual liability. On the other hand, risk has long been well known to specialists of contract law, as it was the main component of ‘aleatory contracts’, that is, contracts that have as their main goal to shift risk from one party to another. We can therefore find in Italian contract law detailed provisions on risk shifting and disclosure of information from the insured party to the insurer (arts. 1882 – 1914 c.c.), and some provisions about the aleatory contract of sale (art. 1472, paragraph 2). After World War II, the thinking about risk has extended to extracontractual liability. This has been driven primarily by scholars and judges, building risk into the Civil Code provisions on extracontractual liability. The result is that ‘liability for risk’ is now well established in its substance in Italian law. The result is not a clear-cut category of ‘risk’, but nonetheless legal actors are able to reason in respect of ‘risk’, and not only of fault, when ascribing liability.
This chapter is divided into two sections. In the first, we will show how the concept of risk entered into the field in extracontractual liability through two main devices: negligence and liability for dangerous activities. In the second section, we will address more specific liability for dangerous activities, questions related to civil procedure and liability for endangerment.
RISK IN THE EXTRACONTRACTUAL DOMAIN
The Italian Civil Code was enacted in 1942; it shows strong French roots, but the drafters of the Code took a substantively new approach on issues regarding extracontractual liability. This was in part because the industrial revolution was only just beginning in Italy, but also because they sought to incorporate developments from decades of case law. The result for extracontractual liability was one very basic article – article 2043 – that illustrates the conditions for establishing liability, coupled with original and specific articles on special liabilities.
Article 2043, which sets out the basis of tort liability, reads:
‘Q ualunque atto doloso o colposo che causa ad altri un danno ingiusto obbliga colui che ha commesso il fatto a risarcire il danno’.