European Review of Private Law 1-2011[87–99] Ó Kluwer Law International BV | Printed in the Great Britain

Liability for Environmental Pollution within the Framework

of the New Chinese Tort Law

BARBARA POZZO & LEBING WANG

Abstract: The article aims at giving a first general introduction to the new Chinese Tort
Law, entered into force on 1 July 2010, with particular regard to the liability problem
for environmental pollution. It takes into consideration the legislative background of the
law, the general framework of the new statute and the problem of legal transplants in
the field of environmental law.

1. Legislative Background
On 1 July 2010, the new Chinese Tort Law, adopted during the 12th session of the
Standing Committee of the Eleventh National People’s Congress (NPC) on the 26th
December 2009, has entered into force. This is a further step towards realising the
future Chinese Civil Code following the enactment of the Contract Law and Real
Property Law,1 which guarantees a broader system of protection for the personal
and property rights of citizens. It has also improved the basic rules governing the
market economy.
The formulation of the rules on tort liability began in 1986 when the General
Principles of Civil Law2 were enacted. Article 106 of these Principles provides for a
general category of civil liability rules, stipulating that there are two kinds of civil
liability, the first resulting from breach of contract (section 1) and the second
deriving from ‘infringing state or collective property on the one hand, private
property or personal physical integrity, on the other hand’.
These basic rules were then followed by sectoral provisions relating to
specific types of tort liability, ranging from Environmental Protection Law3
(1989) to Consumer Rights and Interests Protection Law4 (1994) and Products
Quality Law 5(2000).

Barbara Pozzo is Professor of Comparative Law, Faculty of Law, University of Insubria, Como
(Italy), Lebing Wang is Visiting Scholar and PhD Fellow at the University of Bologna (Italy).
1
合同法, hetongfa (Contract Law), enacted on 15 Apr. 1999, and entered into force on 1 Oct. 1999;
物权法，wuquanfa (Real Property Law), enacted on 16 Apr. 2007 and entered into force on
1 Oct. 2007.
2
民法通则，Min fa tong ze (General Principles of the Civil Law), enacted on 12 Apr. 1986, and effective
as of 1 Jan. 1987.
3
环境保护法, huanjing baohu fa (Environment Protection Law), enacted on 26 Dec. 1989 and
entered into force immediately.
4
消费者权益保护法 xiaofeizhe quanyi baohu fa (Consumer Rrigts and Interests Protection Law),
enacted on 31 Oct. 1993 and came into force on 1 Jan. 1994.
5
产品质量法, chanpin zhiliang fa (Product Quality Law), enacted on 8 Jul. 2000 and came into force
on 1 Sep. 2000 and was amended on 27 Aug. 2009.

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 In addition to these special laws, the Supreme People’s Court issued various
Judicial Interpretations addressing the specifying contents of the legislative provi-
sions and the manner in which they are applied by the Chinese Courts.
Besides the Opinions of the Supreme People’s Court on Several Issues con-
cerning the Implementation of the General Principles of the Civil Law of the People’s
Republic of China (For Trial Implementation),6 specific rules concerning the inter-
pretation of the discipline on emotional distress were formulated: the so-called
Interpretation of the Supreme People’s Court on Problems regarding the Ascertain-
ment of Compensation Liability for Emotional Damages in Civil Torts.7
However, this vast body of legislation, backed up by specific regulations, has
started to display increasing problems of rule coordination and, especially over the
past ten years the need to give a general framework of tort law has become
increasingly urgent, as the data show. In fact, in China we can witness a vast
increase in tort-related litigation in the last years: 980,000 tort cases were heard
in 2007, 1,158,713 cases in 2008 and 1,268,736 cases in 2009.8 Tort litigation
represented in 2009 about 25% of all cases (5,800,144) adjudicated at first instance
nationwide.
The new People’s Republic of China (PRC) Tort Law was adopted after
having gone through three revisions. In December 2002, the Proposal for a new
Statute on Tort Law was discussed by the Standing Committee of the NPC for the
first time as part of the preliminary draft for the Civil Code. Subsequently, following
a decision to postpone the enactment of the Civil Code, the drafting work of Tort
Law resumed in 2008. In December 2008, the Standing Committee of the NPC
discussed the Tort Law draft for the second time. On 27 October 2009 this draft was
submitted to the Standing Committee of the NPC for a third reading and was
eventually approved.
The Law does not essentially amend the tort-related provisions contained in
previous legislation and Judicial Interpretations; rather it consolidates and inte-
grates the existing rules and thus becomes ‘the capstone on a huge edifice’.9

6
最高人民法院关于贯彻执行《中华人民共和国民法通则》若干问题的意（试行） , Zuigao renmin
fayuan guanyu guanche zhixing《zhonghua renmin gongheguo minfatong tongze》ruogan wenti
de yijian (shixing), Opinions of the Supreme People’s Court on Several Issues concerning the
Implementation of the General Principles of the Civil Law of the People’s Republic of China
(For Trial Implementation), which was enacted on 28 Jan. 1988 and entered into force immediately.
7
最高人民法院关于确定民事侵权精神损害赔偿责任若干问题的解释, Zuigao renmin fayuan guanyu
queding minshi qinquan jingshen sunhai peichang zeren guogan wenti de jieshi (Interpretation of the
Supreme People’s Court on Problems regarding The Ascertainment of Compensation Liability for
Emotional Damages in Civil Torts), which was enacted on 26 Feb. 2001.
8
The statistics on the number of the tort cases in the first trial in 2008 and 2009, see <www.court.
gov.cn/qwfb/sfsj/index.html> (last visited 4 May 2010).
9
On the previous drafts see CONK, People’s Republic of China Civil Code: Tort Liability Law,
Fordham Law Legal Studies Research Paper No. 892432, available at <http://ssrn.com/
abstract¼892432>; CONK, A New Tort Code Emerges in China: An Introduction to the Discussion
and a Translation of Chapter 8 – Tort Law of the Official Discussion Draft of the Proposed Revised

88
 However, it does introduce some new institutions into positive law, such as mental
damage, and pays greater attention to the needs of civil society.10
The approval of the new comprehensive Tort Law offers a strong protective
wall for private rights, as the citizens will be able to rely on it, in order to get a
better protect for their rights.11

2. The New Law on Torts: An Overview

The new Law contains 92 articles, divided into 12 chapters. As is the case with every
Chinese law, there is a first chapter dedicated to the purpose of the legislation
(General Provisions), followed by chapters which regulate the way in which liability
is vested and assumed (Chapter II), the circumstances in which liability can be waived
and mitigated (Chapter III), special provisions on tortfeasors (Chapter IV), product
liability (Chapter V), liability for motor vehicle traffic accidents (Chapter VI), liability
for medical negligence (Chapter VII), liability for environmental pollution
(Chapter VIII), liability for ultra-hazardous activity (Chapter IX), liability for harm
caused by domestic animals (Chapter X), liability for harm caused by objects
(Chapter XI), and additional provisions (Chapter XII).
The Law lays down the general principle that any person who infringes and
damages ‘civil rights and interests’ of other persons, shall assume tort liability. The
law also provides a list of protected civil rights and interests, including rights to
health, name, reputation, privacy and property (Article 2).
Under the Law, there are three categories of tort liability: (a) fault liability,
which arises where ‘anyone who is at fault for infringing a civil right or interest of
another person shall be subjected to tort liability’ (section 1, Article 6); (b) presumed
fault liability when ‘anyone who is at fault, within the meaning of the relevant
statutory provisions and is unable to prove the contrary, shall be subject to the laws
of tort liability’ (section 2 Article 6); and (c) strict liability which applies in the
following circumstances:

Anyone who assume tort liability for infringing the civil right or interest of
another person, regardless of whether that person is at fault or not as provided
for by law, shall be subject to the tort liability inherent in these legal provisions
(Article 7).

Civil Code, Fordham Law Legal Studies Research Paper No. 1015041, available at <http://ssrn.
com/abstract¼1015041>.
See also the comment on China Law Blog at <www.chinalawblog.com/2010/03/psst_china_
has_tort_laws_oh_an.html> (last visited 7 May 2010).
10
杨立新，法官适用侵权责任法应当着重注意的几个问题； YANG LIXIN, ‘On Several Questions of the
Judge’s Application of the Tort Law’, Journal of Law Application 2, no.3 (2010): 32. See also the
comments of Prof. Long Weiqiu in the ‘Seminar regarding the enactment of the new Tort Law’.
Prof. Long sheds light on the way in which tort law takes into account the citizen’s daily life. See
<www.civillaw.com.cn/article/default.asp?id¼47545> (last visited 4 May 2010).
11
王利明， 《侵权责任法》的中国特色解读；LIMING WANG, ‘Analysis about Its China’s Character of the
Tort Liability Law’, Law Science Magazine 2 (2010): 1.

89
 Tort liability is, accordingly, based on three essential elements: (1) infringe-
ment of civil rights and interests; (2) loss (consequences of the infringement);
(3) causation between the infringement and the loss caused.
From a general point of view, we have to underline that in the new Law the
element of fault has lost its central role in tort liability and cannot normally be
regarded as a necessary element. On the contrary, the new Law introduces a variety
of specific provisions under which the citizen shall assume tort liability, even in the
absence of fault.
Cases of strict or ‘no-fault’ liability, where the plaintiff has only to prove
damage and causation without being required to provide evidence of any negligence
on the part of the defendant, are quite numerous. Apart from the issue of environ-
mental liability – which will be discussed below – these special torts arise in the
following areas: product liability; high risk and dangerous activities (explosives,
poisons, radioactive material) and damage to property or personal injury which
arises from building work. In these cases the law-making authority has emphasized
that the social consequences of the tortfeasors’ activities, as is clearly expressed in
the wording of the Law: (in fact, Article 7 utilizes the word ‘impair’ (损)) rather
than the expression ‘infringe’ (侵害12 which is used in Article 6.13).
Articles 8–14 of the new Law introduce an interesting new approach towards
the liability of multiple tortfeasors, which constitutes a profound innovation in
relation to the general clause which had already been contained in Article 130 of
the General Principles of Civil Law. The latter stated: ‘Where two or more persons
jointly infringe another person’s rights and cause him damage, they shall bear joint
liability for such infringements.’
More particularly, the provision now contained in Article 8 of the new Law
on Torts restates the general principle contained in Article 130: ‘Where two or more
persons jointly commit a tort, causing harm to another person, they shall be liable
jointly and severally.’
This general provision is followed by other detailed provisions that present a
radical innovation in the Law in this field and that – at first sight – seem to recall, at
least in essence, the provisions contained in the Principles of European Tort Law
that have been translated into Chinese already in 2005.14
In particular, Article 9 of the Chinese Law states that ‘Anyone who abets or
assists another person in committing a tort shall be jointly and severally liable with

12
It is notable that in the English version that we can find until now, the translator utilizes the same
word ‘infringe(侵害)’in Arts 6 and 7. But in the official Chinese version, different words are utilized.
13
王利明，论中国侵权法的特色；Liming WANG, On the characteristics of the tort liability law of
China, <www.civillaw.com.cn/article/default.asp?id¼48091> (last visited 4 May 2010).
14
Principles of European Tort Law, Text and Commentary, European Group on Tort Law, (Wien-
New York: Springer Verlag, 2005). A full text of the Principles and their accompanying commentary
are available in Chinese from Law Press China. The Chinese translation of the European Principles
is also available at <http://civil.udg.edu/tort/Principles/>.

90
 the tortfeasor.’15 This provision further takes into consideration the possibility of
one of the tortfeasors having limited legal capacity.16
Where the damage has been caused by multiple tortfeasors, Article 10 lays
down that there is a partial or individual liability if ‘the specific tortfeasor can be
determined’, otherwise the tortfeasors shall be all jointly liable.17
Article 11 lays down a joint liability regime where the tortfeasor causes the
same loss, but there is no joint infringement: ‘Where two or more persons jointly
commit a tort causing the same loss, and each tort was sufficient to cause the entire
loss, the relevant tortfeasors shall be liable jointly and severally.’ This article follows
the provision of the Principles of European Tort Law, contained in Article 3:102.18
The provision contained in Article 12 seems to be the more intricate and
complicated to understand, one of the reasons being that the currently available
English translation does not correspond exactly to the original meaning as
expressed in the Chinese language.19
The first part of the article lays down a ‘shared’ or ‘partial’ liability regime,
stating:

Where two or more persons commit torts respectively, causing the same harm, if
the seriousness of liability of each tortfeasor can be determined, the tortfeasors
shall assume corresponding liabilities respectively where the responsibility for
each tortfeasor can be established.

As will be noted below, this provision has been subject to more detailed
application in the field of environmental pollution, in Article 67.20
The second part of Article 12 is the most difficult to unravel, given that the
same words in English employed in the translation of the rule do not have a well

15
Article 9:101 of the European Principles of Tort Law states among others – that ‘Liability is solidary
where: a) a person knowingly participates in or instigates or encourages wrongdoing by others which
causes damage to the victim.’
16
Article 9(2) of the Chinese Tort Law: ‘One who abets or assists a person who does not have civil
conduct capacity or only has limited civil conduct capacity in committing a tort shall assume the tort
liability; the guardian of such a person without civil conduct capacity or with limited civil conduct
capacity shall assume the releVANt liability if failing to fulfill his guardian duties.’
17
Article 10 of Chinese Tort Law: ‘Where two or more persons engage in a conduct that endangers the
personal or property safety of another person, if only the conduct of one or several of them causes
harm to another person and the specific tortfeasor can be determined, the tortfeasor shall be liable; or
if the specific tortfeasor cannot be determined, all of them shall be liable jointly and severally.’
18
Article 3:102 of the European Principles on Tort Law states: ‘Concurrent causes – In case of multiple
activities, where each of them alone would have caused the damage at the same time, each activity is
regarded as a cause of the victim’s damage.’
19
WANG ZHU, ‘Analysis about the Legislative System of the Tort Liability Division and the Regulations
in China Tort Liability Law’, Law Science Magazine 3 (2010).
20
See infra, under 3.2.

91
 established or clear technical meaning, but must be understood in that specific
context. The rule states: ‘if the seriousness of liability of each tortfeasor is hard to be
determined, the tortfeasors shall evenly assume the compensatory liability.’
In this provision ‘evenly’ means ‘the same share, the same amount’ and
‘compensatory liability’ is the liability for paying the compensation, independently
from any consideration as far as the fault is concerned.21 In other words, where it is
difficult to ascertain the contribution of each tortfeasor, liability for compensation
will be divided by the number of the tortfeasors and each tortfeasor will bear the
same share of liability.
Article 13 concerns the right of the victim, in the event of joint and several
liability, to require any one or all tortfesors to bear the liability for the loss caused.22
Article 14 finally establishes the relationships between the various
tortfeasors.23
The new statute on Tort Law further devotes a key provision to the various
kinds of remedy that the tortfeasor may be required to offer. Article 15 lists eight
methods which can be applied separately or jointly, including (1) cessation of the
infringement; (2) removal of the obstruction; (3) elimination of the danger;
(4) return of the property; (5) restoration to the original status; (6) compensation
for loss; (7) apology; (8) elimination of the consequences and restoration of the
reputation.
As we can see, the list includes remedies that are a well-established feature of
Western legal systems, as well as the typical remedy of Chinese law in the shape of
an ‘apology’.
In certain circumstances, liability can be mitigated or waived, including
cases where: (1) the harm has been caused intentionally or negligently by the victim;

21
As far as the meaning of the term ‘compensatory liability’ is concerned, this is a concept that rarely
features in traditional textbooks on tort law. It is nonetheless a term that has acquired a specific
meaning in some special statutes, such as those governing environmental issues, for example, the
American Oil Pollution Act. It should also be stressed that the same terminology appears in some
textbooks generally referring to the issue of liability in its social context. See for example, ALLAN V.
HORWITZ, The Logic of Social Control (New York: Plenum Press, 1990), 47: ‘Compensatory liability
usually features a connection between an act and some harmful outcome rather than some mental
state producing the act. Liability accrues from an external relationship between an offense and a
responsible party rather form a particular state of mind of an offender.’
22
Article 13: ‘Where the joint and several liability shall be assumed by the tortfeasors according to
law, the victim of torts shall be entitled to require some or all of the tortfeasors to assume the
liability.’
23
Article 14 of the new Chinese Tort Law: ‘The compensation amounts corresponding to the tortfea-
sors who are jointly and severally liable shall be determined according to the seriousness of each
tortfeasor; and if the seriousness of each tortfeasor cannot be determined, the tortfeasors shall evenly
assume the compensatory liability. A tortfeasor who has paid an amount of compensation exceeding
his contribution shall be entitled to be reimbursed by the other tortfeasors who are jointly and
severally liable.’

92
 (2) the harm has been caused by a third party; (3) the harm has been caused by a
force majeure; (4) the harm has been caused by self-defence; or (5) the harm has
been caused when acting in an emergency.
Chapter IV of the Law focuses on various areas involving liability. In this
respect, these articles seem to be part of the general provisions. However,
the provisions in this Chapter should in fact be regarded as rules belonging to the
special part, because they lay down specific types of liability which are related to the
activities in question. For example, the law vests a specific liability in the guardian
for any loss caused to other parties by the person under his guardianship who has
either no or merely limited legal capacity (Article 32); another example of these
special types of liability is that which results from the duty to ensure safety protec-
tion on the part of the manager of a public venue (such as an hotel, a shopping
centre, bank, a station or place of entertainment) or of the organizer of a mass
activity: he assumes liability for any harm caused to another person as a result of his
failure to fulfil his duty to ensure safety protection (Article 37).
As regards the special part, from Chapters IV to XI, the Law lists eight
special types of tort liability based on strict liability or presumed fault liability,
including liability for motor vehicle traffic accident, for medical negligence, for
environmental pollution, for high-risk activity, for harm caused by domestic
animals, and for harm caused by object in a person’s custody. In this part, the
relevant tort law restates and adopts the provisions contained in the special laws
and judicial interpretations which were issued before the Statute on Tort Law was
enacted.
Of particular interest is the inclusion of punitive damages in the new
provisions concerning protection against defective products. The introduction
of punitive damages has been interpreted as a response to the various conse-
quences of loss arising from defective product which have emerged in recent
years, such as the Sanlu tainted milk incident, which left at least six infants dead
and roughly 300,000 others suffering from lingering health problems.24 Under
the new Law, claimants may seek damages from the producers or sellers of the
products, regardless of whether either party is at fault (Article 43). Where a seller
is able to show that the product contained a pre-existing defect, the seller has the
right to seek a contribution from the producer, assuming that the latter is identifi-
able (Articles 42–43). Third parties in the product distribution chain can also be
affected, as the tort law states that if the injuries to other persons result from third
party transportation or storage services, the producer and the seller of the defec-
tive product have the right to seek a contribution from the third party responsible
(Article 44).

24
The number of the victims has been estimated by the vice president of the Supreme People’s Court
of China, Shen Deyong. See <www.chinadaily.com.cn/hqcj/zgjj/2010-04-26/content_214152.html>
(last visited 7 May 2010).

93
 3. Liability for Environmental Pollution: From the General Principles to the
New Statute on Tort Law
The Chinese legal system seems in recent years to have invested a tremendous
amount of effort in seeking to protect the environment by means of several
instruments.
Since the Constitution of 1978, subsequently revised in 1982, a special
constitutional provision devoted to this objective has been inserted. In particular,
Article 26 lays down that:

The state protects and improves the living environment and the ecological
environment, and prevents and controls pollution and other public hazards.
The state organizes and encourages afforestation and the protection of forests.

Chapter VIII of the new statute on Tort Law, devoted to the problem of
liability for environmental pollution, appears to go in the same direction, providing
new instruments for the protection against loss caused by pollution.
In order to understand how innovative the new regime is, Chapter VIII needs
to be seen in conjunction with some of the provisions contained in Chapter IX of the
same statute, which concerns liability for ultraharzadous activities, as it is clear that
most of the loss arising from pollution is the result of ultra-hazardous activities.
Furthermore, in order to have a clear image of the rule-making framework,
we should also recall that Article 124 of the General Principles of the civil law of the
People’s Republic of China, enacted in 1986, had already established a general
principle in this field, under which:

Any person who pollutes the environment and causes damage to others in
violation of state provisions for environmental protection and the prevention of
pollution shall bear civil liability in accordance with the law.

The aim of this paragraph is, accordingly, to describe briefly the previous
liability régime for environmental pollution under the General Principles of the civil
law of the People’s Republic of China, in order to be able to assess the innovations
introduced by the new statute on Tort Law.

3.1 Liability for Environmental Pollution in the General Principles of 1986

The PRC General Principles of 1986 were drafted following the German model of
the Allgemeiner Teil zum BGB,25 but the rule contained in Article 124, which
introduces a specific type of liability in the field of environmental pollution, is

25
Cf. XIANZHONG SUN, ‘Rezeption der westlichen Zivilrechtswissenschaft im modernen China: Analysen
aus der rechtsvergleichenden Perspektive’, ERPL (2010): 901.

94
 not to be found in the German archetype and should instead to be regarded as an
innovation introduced by the Chinese law-making authority.
Article 124 imposes civil liability for loss caused to others, where the pollu-
tion has been committed in violation of state provisions on environmental protec-
tion or the prevention of pollution, but without establishing which kind of remedy
the polluter is obliged to perform.
The environment in this case is not the subject matter per se: the relevant
loss is in fact that which is caused to the rights or interests of ‘others’ through the
discharge of polluting substances into the environment rather than the loss caused
to natural resources, which are not covered by the General Principles.
During the last decades of last century the Chinese Government enacted a
prominent series of statutes concerning environmental protection and the preven-
tion of pollution, such as the Law on Marine Environmental Protection of the
People’s Republic of China (1982, revised in 1999), the Law on the Prevention of
Water Pollution of the People’s Republic of China (1984, revised in 1996), the Law
on the Prevention and Control of Atmospheric Pollution of the People’s Republic of
China (1987, revised in 1995, and in 2000), the Environmental Protection Law
of the People’s Republic of China (1989), the Law on the Prevention and Control of
Environmental Pollution by Solid Waste (1995, revised in 2004), the Law on
Prevention and Control of Pollution from Environmental Noise (1996), the Law
on the Prevention and Control of Radiation Pollution of the People’s Republic of
China (2003).
These statutes generally contain special provisions establishing the kind of
remedy the polluter should perform.
For example, Article 41 of Environmental Protection Law of the People’s
Republic of China,26 provides: ‘A unit that has caused an environmental pollution
hazard shall have the obligation to eliminate it and make compensation to the unit
or individual that suffered direct losses’, thus ensuring a cleaning process and the
payment of compensation.
The same remedies are laid down in, for example, Article 55 of the Law of
the People’s Republic of China on Prevention and Control of Water Pollution27 (‘The
unit which has caused a water pollution hazard has the responsibility to eliminate it
and make compensation to the unit or individual that suffered direct losses’); in
Article 62 of the Law on the Prevention and Control of Atmospheric Pollution28

26
Adopted at the 11th Meeting of the Standing Committee of the Seventh National People’s Congress
on 26 Dec. 1989 and ratified by Order No. 22 of the President of the People’s Republic of China on
26 Dec. 1989.
27
In force since 1 Nov. 1984.
28
Law of the People’s Republic of China on the Prevention and Control of Atmospheric Pollution,
Revised and adopted at the 15th Meeting of the Standing Committee of the Ninth National People’s
Congress of the People’s Republic of China on 29 Apr. 2000, and the revised edition is hereby
promulgated and shall enter into force as of 1 Sep. 2000.

95
 (‘Any unit that has caused an atmospheric pollution hazard shall have the respon-
sibility of removing the hazard and of making compensations to the units or indivi-
duals that have suffered direct losses’ ); and in Article 84 of the Law on the
Prevention and Control of Environmental Pollution by Solid Wastes29 (‘Entities
and individuals that have suffered damages caused by solid waste pollution shall
have the right to claim/according to law’ ).
Accordingly, in the event of litigation, all these special statutes aiming at the
protection of the environment provide a general clause regulating the assessment of
the compensation, generally stating that where a dispute over liability or the
amount of compensation arises, this may – at the request of the parties – be settled
by the appropriate environmental protection department. If a party refuses to
accept the decision, he/she may bring suit before a People’s Court. The party in
question may also bring an action before the People’s Court directly.30
In other words, these provisions provide a dual track system: it is in fact
possible to use alternatively the administrative or the judicial procedure. This
possibility is linked to, inter alia, the as yet incomplete status of the Judicial
Reform, which is still in action.
From a comparative point of view the provision contained in Article 124
seems to share the approach that is common to some European legal systems which
have adopted special statutes on civil liability for environmental harm.31
In particular, the German Environmental Liability Act (Umwelthaftungsge-
setz) of 10 December 1990, provides in Article 1 that ‘if a person suffers death or
injury to his body or health, or if property is damaged, due to an environmental
impact that issues from one of the facilities named in Appendix 1, then the operator
of the facility shall be liable to the injured person for the damage caused thereby.’
The real difference between the Chinese legal context and one of the most
advanced legal systems in Europe may depend, not on the wording of the law, but
on its actual enforcement.32

29
Amended and adopted at the 13th session of the Standing Committee of the Tenth National People’s
Congress of the People’s Republic of China on 29 Dec. 2004, and the amended Law of the People’s
Republic of China on the Prevention and Control of Environmental Pollution by Solid Wastes is
promulgated on 29 Dec. 2004 and shall come into force as of 1 Apr. 2005.
30
‘A dispute over liability to make compensation or the amount of compensation may, at the request of
the parties, be settled by the competent environmental protection department or by the navigation
office of the competent communications department. If a party refuses to accept the decision, he may
bring suit before a people’s court. The party may also bring suit before the people’s court directly.’
31
Cf. POZZO, ‘The Liability Problem in Modern Environmental Statutes’, ERPL 4 (1996): 111–144.
32
Cf. WANG CANFA, ‘Chinese Environmental Law Enforcement: Current Deficiencies and Suggested
Reforms’, Vermont Journal of Environmental Law 8 (2006–2007), <www.vjel.org/journal/VJEL
10058.html>.

96
3.2 Liability for Environmental Pollution as Regulated by the New Statute
The New Chinese Tort Law devotes four important rules (Articles 65–68) to the
problem of liability for environmental pollution.
In the new Law, as well as in the General Principles of 1986, the loss taken
into consideration does not so much concern harm caused to the environment as
harm caused by the environment to the ‘civil rights and interests’ covered by
Article 2. In other words, the term ‘environmental pollution’ here denotes the
intermediary role played by the environment.
Among the ‘civil rights and interests’ specifically taken into consideration,
life, health and property will play the most important part in the field of environ-
mental pollution. ‘civil rights and interests’.
In particular, Article 65 of the new statute establishes the general principle
that ‘Where any harm is caused by environmental pollution, the polluter shall
assume the tort liability.’
With reference to the provision previously introduced by the General Prin-
ciples of the civil law, it appears that this new article widens the scope of liability,
since liability for environmental pollution will be established even where there has
been no ‘violation of state provisions for environmental protection and the preven-
tion of pollution’.
Liability for the loss arising from environmental pollution will be established
without the need to ascertain fault, as Article 65 does not mention the latter
explicitly. The same type of strict liability regime also applied in relation to all
ultra-hazardous activities covered in Chapter IX.
Furthermore, the new statute does not even require the proof of causation, as
Article 66 lays down in this regard that:

Where any dispute arises over an environmental pollution, the polluter shall
assume the burden to prove that it should not be liable or its liability could be
mitigated under certain circumstances as provided for by law or to prove that
there is no causation between its conduct and the harm.

The shift in the burden of proof of causation is something which can also be
found in some European environmental legislation. In fact, in the example quoted
above, that is, that which concerns the German Umwelthaftungsgesetz, a similar
provision is found in Article 6, which imposes a particular presumption of
causation:

If a facility is inherently suited, on the facts of the particular case, to cause the
damage that occurred, then it shall be presumed that this facility caused the
damage. Inherent suitedness in a particular case is determined on the basis of
the course of business, the structures used, the nature and concentration of the
materials used and released, the weather conditions, the time and place at which

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 the damage occurred, the nature of the damage, as well as all other conditions
which speak for or against causation of the damage in the particular case.

Article 67 deals with the issue of multiple tortfeasors in the specific area of loss
arising from pollution. It states in particular that where it is possible to ascertain the
contribution of each tortfeasor, there will be partial or individual liability which will
need to take account of the type of pollutant, volume of emission and other factors.33
Finally, the new statute on Tort Law also covers the scenario where a third
party at fault contributed to the loss.34
Where such a case arises, Article 68 lays down that:

where any harm is caused by environmental pollution for the fault of a third
party, the victim may require a compensation from either the polluter or the
third party. After making compensation, the polluter shall be entitled to be
reimbursed by the third party.

One final observation concerns the type of loss for which compensation might be
sought.
Under the previous legislation already, Chinese scholars were pointing out
that besides loss to property and losses arising from physical injury, the victim of a
pollution incident could seek compensation for loss arising from mental distress.35
This interpretation should be now confirmed by the general notion of damage
introduced by Article 22, which states now:

Where any harm caused by a tort to a personal right or interest of another person
inflicts a serious mental distress on the victim of the tort, the victim of the tort
may require compensation for the infliction of mental distress.

4. Some Final Observations

It has been already observed that the modern nature of Chinese environmental
legislation might come as a surprise.36

33
Article 67: ‘Where the environmental pollution is caused by two or more polluters, the seriousness of
liability of each polluter shall be determined according to the type of pollutant, volume of emission
and other factors.’
34
The same problem has been tackled by Directive 2004/35 on environmental liability with regard to
the prevention and remedying of environmental damage of 21/4/2004, which at Art. 8, 3 estab-
lishes: ‘An operator shall not be required to bear the cost of preventive or remedial actions taken
pursuant to this Directive when he can prove that the environmental damage or imminent threat of
such damage was caused by a third party and occurred despite the fact that appropriate safety
measures were in place.’
35
LI LUO & FENG PENG, ‘Rimedi giuridici in caso di illeciti ambientali in Cina’, Rivista Giuridica
dell’Ambiente (2007): 243.
36
PATRICK THIEFFRY, ‘La protection de l’environnement en Chine: un cadre juridique ambitieux à la
mesure d’enjeux considérables?’, Revue Juridique de l’environnement (2006): 401 ff.

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 China is party to the main international treaties on this subject,37 the
Chinese Constitution contains a specific clause relating to environmental protec-
tion, its major laws on air, water and waste, which have been revised several times,
are already accompanied by more interdisciplinary measures such as the broad
Statute on Environmental Protection in general.38
The new Statute on Tort Law appears to represent a further contribution
towards this trend, which courageously stresses the profoundly important role
which environmental protection plays in boosting economies such as that of China.
It will be crucial to examine, in few years’ time, how the new statute on Tort
Law in the field of environmental pollution will have been applied in practice, as
well as the true impact it will have had on the Chinese society, always bearing in
mind the following observation suggested by the Supreme Court of India: ‘If the
mere enactment of laws relating to the protection of environment would suffice, then
India would, perhaps, be the least polluted country in the world. But this is not so.’39

37
See for example, ZHAO JIMIN, ‘Implementing International Environmental Treaties in Developing
Countries: China’s Compliance with the Montreal Protocol’, Global Environmental Politics
5 (February 2005): 58–81. This author in particular emphasizes that China thus far has signed
more than twenty international environmental treaties, but that the extent to which it has complied
with these International Environmental Agreements and the factors that have affected its compli-
ance have not been investigated systematically.
38
PATRICK THIEFFRY, Revue Juridique de l’environnement (2006), 401.
39
Indian Council for Enviro-Legal Action v. Union of India, 1996 (5) SCC 281, 293.

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