船舶油污论文：论船舶油污环境损害的赔偿范围.doc

船舶油污论文：论船舶油污环境损害的赔偿范围【中文摘要】自工业革命以后,海上石油运输越来越繁荣,海洋遭受的石油污染损害也日趋严重。随着国际上一系列重大油污事件的发生,海洋环境保护与船舶油污损害赔偿问题也受到国际公约和国内立法的关注,我国尚无专门的船舶油污环境损害赔偿方面立法,审判机关在法律适用上也很不统一。本文主要结合环境损害赔偿的基本理论及国内外立法,针对我国船舶油污的损害赔偿实践,探究船舶油污的环境损害赔偿范围。文章第一部分首先界定了船舶油污造成的“海洋环境损害”的法律概念。从海洋环境的概念出发,区分了海洋环境、海洋资源和海洋生态三组概念的不同,认为海洋环境包含海洋资源和海洋生态。本文认为当前应对“环境损害”概念采狭义解释,即环境损害仅指对环境本身的损害,并在此基础上以概括加列举的方式对船舶溢油造成的“海洋环境损害”进行了定义。船舶溢油引起的海洋环境损害不同于一般的侵权损害,具有涉及范围广、价值难估量、恢复周期长、评估技术性强等特点。文章第二部分主要阐述了船舶油污环境损害赔偿的理论基础。环境权理论是环境损害赔偿的权利基础,本文认为环境权既然是一项新型的权利,其权利的内容也不同于传统的人身权和财产权,是环境自身应处于良好的可持续发展的权利。公共信托理论为环境损害赔偿提供了救济权依据,是我国海洋环境保护法第九十条第二款的立法依据。损害“差额说”理论一直是大陆法系损害赔偿法领域的权威学说,该学说深刻揭示了损害事实与赔偿范围之间的关系,对于研究环境损害赔偿有重要启发作用。文章第三部分介绍了当前公约体系、美国油污法体系及我国法律体系下船舶油污环境损害赔偿范围的相关规定,认为从赔偿范围的规定和评估准则方面看,美国油污法体系较公约体系更加科学、全面,在保护海洋环境方面更有力度。在赔偿范围方面,我国法与1992CLC的规定不完全一致,本文认为发生在我国海域内的船舶油污环境损害赔偿,无论是否具有涉外因素,都应优先适用国际公约的规定。文章第四部分对船舶油污环境损害赔偿范围进行了系统的解构。认为应当采全面赔偿和限制赔偿相结合的原则进行赔偿范围的界定,在以上两原则的基础上,本文认为船舶油污环境损害赔偿范围应包括包括基本的恢复费用、恢复期间的环境价值损失、不可恢复的环境损失和评估费用。针对当前我国司法实践中存在的索赔项目存在重复的问题,本文认为应对相关评估标准进行修订；在天然渔业资源损失实际不能得到公约体系支持的现状下,本文认为应该呼吁国际社会尽快对1992CLC进行修订,以实现对船舶油污环境损害的全面赔偿。本文主要采用了历史分析、比较分析、案例分析、法律解释等方法进行研究。【英文摘要】With the flourishing of carrying petroleum by sea after the Industrial Revolution, ocean pollution is becoming serious day by day. The protection to ocean environment and the indemnity to damage from ships oil pollution have been paid attention by international convention and domestic law after sets of oil pollution event happen. From the prospective of legislation of the indemnity to damage from ships oil pollution in China, there is still no specialized regulation and displays as disunity in the application process by judgment department. With Integrating the basic theoretic in the indemnity to damage of environment and the situation of legislation in and out of China, basic on the practice of the indemnity to damage from ships oil pollution in our country, my thesis is aiming to research the range of indemnity range of damage to environment from ships oil pollution.The first part in my thesis firstly defines the legal concept of “damage to ocean environment” caused by ships oil pollution. Analyzing from the concept of ocean environment, this thesis make distinctions among ocean environment, ocean resource and ocean ecology. This thesis indicates that “damage to environment” should be explained strictly, that is,” damage to environment was just means the damage to environment but nothing else, basic on which, we could define “damage to ocean environment” caused by ships leaking oil by the way of summarization and enumeration. The places that damage to ocean environment caused by ships leaking oil difference from the other common damage are that, the former affects wider range, has inestimable value, need more time to resume and is more professional in evaluated technical area.The second part of this thesis mainly states theoretical principles of indemnity of damage to environment from ships oil pollution. Environmental right is the basic to the indemnity to damage to environment. This thesis thinks that environmental right is a new type of right, whose content is different from traditional personal right and property right, focus on the well sustainable development of environment. Public trust theory which is also the foundation of domestic “marine environmental protection law” item 2 of clause 90, is the basic and reference of right of relief for indemnity to damage to environment. Damage to be balanced which is always the authoritative theory in continental legal system deeply indicates that the relationship between damage fact and the indemnity range and is important for further researching damage to environment.The third part of this thesis introduces the conventional system now days, “American oil pollution law” system and related regulation of indemnity range of damage to environment from ships oil pollution in domestic law system. From the perspective of indemnity range and evaluated regulation, “American oil pollution law” system is more scientific and comprehensive, and it is more practical in the protection of ocean environment. From the perspective of indemnity range, domestic law is not the same as 1992CLC. But this thesis supports that, no matter the event includes overseas factors or not, international convention is prior to be applied for indemnity range of damage to environment from ships oil pollution, as long as this damage occurs in ocean area of China.The forth part of this thesis systemically explains indemnity range of damage from ships oil pollution. The indemnity range should be defined with the combined principles of comprehensive indemnity and limited indemnity, further on which, my thesis think that indemnity range of damage from ships oil pollution should includes basic resuming cost, the lost of environmental function in resuming period, lost of environmental function which could not resume and evaluation fee. Relative evaluation standard should be rectified accordingly as per the claiming items are repeated in our juridical practice; accordingly to the situation that piscatorial lost is not included in international convention, we should appeal to international society that 1992CLC should be rectified timely to realize the comprehensive indemnity of damage to environment from ships oil pollution.The author has adopted the research methods of case-analysis, comparison analysis, historical ana