近些年來,國際社會上有關跨國環境侵權的事件頻發，但是，在全球環境持續惡化、跨國環境侵權事件層出不窮的情形下，我國關于跨國環境侵權的法律規定并不完善，特別是在跨國環境侵權的法律適用這兩方面，導致我國在處理跨國環境侵權事件時處理難度大甚至會引發國際爭端。

 
In recent years, the international community on related incidents in multinational environment tort, but, in the global environment worsening, multinational environment tort events emerge in endlessly, about multinational environment tort law is not perfect in our country, especially in a multinational environment tort law applicable to these two aspects, caused our country processing is difficult when dealing with multinational environment tort events may even lead to international disputes.
 
The international uniform substantive law field and the number of states parties involved limits, at present to solve most of the multinational environment tort dispute mainly rely on domestic laws of all countries; At the same time, the inherent in multinational environment tort particularity and complexity, such as with wider range of events, the largest number of victims, the infringement and damage results occurred not in the same place, no doubt, to add to the difficulty to solve transnational environmental infringement dispute. So our country must be perfect for the settlement of multinational environment tort laws and regulations.
 
This article mainly for multinational environment tort law applicable to this aspect were discussed, and hope to our country about multinational environment tort legislation perfect help.
 
About the applicable law of the multinational environment tort, Europe and the United States on the two aspects of the provisions of the state adopted a flexible way, this paper carried out a lot of analysis and inquiry. We can based on the experience of the European and American countries, thus to perfect our country transnational environmental tort law applicable to the two aspects of legislation.
 
Keywords: multinational environment tort law applicable to Europe and the United States
 
Multinational environment tort law applicable to the discussion
 
Generally refers to the multinational environment infringement, for within the territory of a country's environmental tort in other countries within the territory of the person, property and environment damage or damage to a dangerous situation. The general principles of the civil law of tort law concerning foreign affairs made the following provisions shall be applicable to the article one hundred and forty-six of the tort damages, apply to tort law of the place. If both parties are citizens of the same country or have established domicile in another country, the law of their own country can also be applied. The laws of the People's Republic of China don't think that occur outside the territory of the People's Republic of China is tort behavior, not as a tort. For tort how to determine the problem, China's supreme people's court in 1988 "about carrying out the < general principles of the civil law of the People's Republic of China > the opinions of the several issues (try out)" the 187th regulation: "the implementation of tort law including tort law and tort results occurred. If the two inconsistent, the people's court may choose to use." From the law, handling foreign-related tort law when used in China, both followed the tradition, to the place where the act of tort as basic principles, and absorbs some advanced at the time, have a certain flexibility factor of claims, supplemented by "common law".#p#分頁標題#e#
 
1, China about multinational environment tort law applicable to the existence of the problem
 
Legislation is more reasonable and to be advanced at the time, but with the development of economy, China's external exchanges, China's relevant foreign infringing the provisions of the applicable law is becoming obvious drawbacks.
 
(1) of each country have different understanding of the concept of the infringement, our country did not explicitly on the legislation of tort to explain, made by the court to decide. If the parties and the court's understanding of infringement to produce deviation, so the court to make decisions for the victim is obviously unfair.
 
(2) the content is not comprehensive, the only place where the act of tort damages for infringement, but the infringement problems not only damages, there are other problems, such as the cognizance of the intent and negligence, liability issues, causal relationship and so on also need law.
 
(3) lack of sufficient flexibility. The articles only adds to the "common people method" instead of the place where the act of infringement, but the common genus of the application situation of the people in the contemporary frequency is very low, and the common people method itself exists deficiency. If just rely on the common method to solve some complicated situation, it is difficult to solve the problem of today's complex international tort.
 
(4) "about carrying out the" general principles of the civil law of the People's Republic of China > the opinions of the several issues (try out) ", if the laws of the People's Republic of China don't think that happen outside of the People's Republic of China is the behavior of the infringing act, omission tort processing, should be understood as related to maintain the order of Chinese legal, but harm behavior such as in a foreign country infringe the interests of Chinese citizens or legal persons, and the foreign law and think that treatment of tort should be done, the regulations in China the victim obviously unfair.
 
Court to competition law and tort law for one hundred years, but still the place where the act of tort in an impregnable position, seems to transnational tort act of tort occurred shall be applicable to this traditional method is already unable to shake. The place where the act of tort is spread so far, mainly because of the place where the act of tort, to join points based on tort, the connection point, clear and simple, stability, predictability, and can reduce the abuses of the advantages of choosing court.
 
But in the second half of the 20th century, with the frequent exchanges between countries of, the advancement of economic globalization, transnational infringement cases is also growing, and infringement problems grew with complicated. The junction of the traditional legal relationship to list the case method to solve the problem of legal application, has shown a lot of shortcomings, such as mechanical, mechanization, blind...#p#分頁標題#e#
 
2, the European and American countries about multinational environment tort law applicable regulations
 
(1) parts of Europe about multinational environment tort law applicable regulations
 
Portugal: in 1966 the Portuguese civil code article 45: (1) the tort liability, whether arising from illegal activities, risk, or is caused by some kind of legal act, all applicable damage the main behavior of implementation method, and therefore not as a cause of tort liability, apply to those responsible for this should be the behavior of the positive behavior (behavior) method; (2) occurred as the result method of thought behavior for the infringer, even if the behavior method of implementation to don't think of infringement, should use the results occurred; (3) as the two sides share common nationality or habitual residence, is just a temporary infringement behavior occurs, in foreign countries can apply to their common national law or habitual residence.
 
Switzerland: in 1987 the Swiss federal regulations private international law "the 132th regulation: the parties may at any time after the appearance of the infringing act, agreement to elect in alternative to apply the court of law. "Swiss federal private international law" the 133th regulation: if the infringement the infringement of a legal relationship between the parties, the infringement lawsuit, apply to adjust the legal relation of the law. The 138th regulation: due to the radioactive material damage, the plaintiff shall have the right to choose the applicable law of the place where the property is of or damage to the radioactive results local law. The law the 139th regulation: based on the media, especially newspapers, radio, television or other mass media in the event legal action is the damage to the personality request, suffered harm choice, dominated by the following laws: (1) the victim habitual residence to the law of the country, if the tortfeasor shall be estimated to tort happens there; (2) the offender of business or habitual residence of the law of the country. (3) damage result occurred by the law of the country, if the offender shall be estimated to results will occur in the country.
 
Austria: in 1978, the Austrian federal regulations private international law, article 48 of the damage claims: (1) the contract, according to the behavior of such damage occurred by the law of the country; But such as per capita involved with another country law has more close contact, when using the law; (2) damages caused due to the improper competition behavior and other claims, in accordance with the law of the host countries affected by the competition of the market.
 
Britain: in 1995, the British international private law (miscellaneous provisions) "the provisions of article 11 (1) the general rule is applicable law is the cause of the illegal ACTS of infringement or event where the law of the country; (2) some factor such incidents happened in different countries, in accordance with the general rules applicable law should be: (a) to cause personal injury or death caused by personal injury lawsuits filed by, but injuries to the individual; (b) lawsuit brought by damage to property, are located at the property damage; (c) in any other case, use the most closely related to the law. Stipulated in article 12: in all cases, by the comparison of the illegal ACTS of infringement or with the general rules should apply the law of the state the importance of the associated factors and any illegal ACTS of infringement or the importance of the factors associated with other countries, if in effect more suited to apply to solve the problem in the case or any such problems, should be the law of other countries, the general rules shall be replaced, apply the law to solve all problems in other countries or a problem.#p#分頁標題#e#
 
Belarus: in 1999, "belarus private international law" the 1129th regulation: creditor-debtor relationship caused by the illegal activities (1) caused by illegal creditor-debtor relationship of rights and obligations, which apply to mention damages where behavior or the result of the law; (2) caused by foreign wrongdoing creditor-debtor relationship caused by the relations and obligations, the parties to a country citizen or legal person, determined in accordance with the law; (3) if the law of the republic of belarus which bring damage compensation act or condition not constitute a violation of the law, foreign law shall not apply.
 
Czechoslovakia: in 1964, the socialist republic of Czechoslovakia international private law, the provisions of article 17: in addition to contract the damage behavior of applicable law (1) for damage outside the contract relationship between the behavior of responsibility, including personal requirements and the scope of damage compensation, damage is located shall apply the law of the country. (2) to a ship or aircraft in international waters or high seas over the activities of the damage caused by the behavior, should use the ship or aircraft to fly the flag, the law of the country or the national emblem belongs; (3) if the offender and the victim are citizens of the same country or when they in the same country has its domicile, should apply the law. This principle also applies to its legal status shall be prescribed by the law of the country to the same enterprise or in the same country there is main place of business enterprise.
 
Russia: Russia "civil code (draft)" third volume 7 of article 1259 of this law of tort liability for: "caused by the tort liability and the rights and obligations, applicable to the behavior or claim damages incurred as a basis for countries where other matters of the law."
 
The eu: the eu commission in evaluating and summarizing American modern methods and legislative experiences in European countries, on the basis of passed in 2007, and formally implemented on January 11, 2009 "about non contractual obligations applicable law regulations, the second act. To promote the autonomy of private law, regulations allow infringement cases by the parties pursuant to article 14 after the tort happened even before all can negotiate to solve due to infringement of rights and obligations of the law. Rules to distinguish the infringement occurred before and after infringement occurs two kinds of different situation. For the former, the parties may negotiate choice; But for the latter, the parties only if in a free consultation to choose business occasions. Whether infringement before or after, the choice must be express, or according to the case and the circumstances that have a reasonable certainty; No choice may damage to third party rights, and if all factors are located in the selected case law belongs to another country outside the country, mandatory provisions, it shall not deviate from the country at the same time, it shall not deviate from the rules of ec mandatory.#p#分頁標題#e#
 
(2) of the United States about multinational environment tort law applicable regulations
 
The United States in 1971 "the second restatement conflict law" the 145th regulation: the rights and obligations of the parties in the infringement on a problem, apply to the case and the parties is most closely connected state of the local law. When determining the applicable law to be applied, the connected factors should be considered: damage occurred; Implement harm behavior; Party's domicile, residence, nationality, and to set up and operating; A link between the parties has the largest concentration of the contact. Infringement applicable is most closely connected to the case law are sure to overcome the stiffness of the traditional tort law choice, actualizing the case of justice and substantive justice, accord with modern tort law policy changes
 
3, the provisions of multinational environment tort law applicable to the comparison
 
(1) most of the countries on the basis of the general theories of tort law applicable
 
1, Portugal, Switzerland, Austria, belarus, the Czech republic have chosen to apply to the place where the act of tort.
 
The place where the act of tort can be applied, the main reasons: one is have a long history and strong theoretical foundation, the second is the theory is simple, maneuverability, etc. The place where the act of tort, to join points based on tort, the connection point, clear and simple; Help fair, that is, the same foreign cases regardless of where to prosecute, the outcome should be the same, to safeguard the interests of parties and social stability.
 
But with the continuous development of economy and the national association of frequent, tort often have chance. Infringement behavior is unpredictable, in tort law to resolve disputes, is not conducive to the processing of cases, is unfavorable to protect the interests of the parties; At the same time as countries for infringement behavior to understand the concept of different can also make the infringement is not easy to determine. In practice, the infringement could have continued in a different country, so it is difficult to determine which apply to tort law of the land. As a result, more and more scholars criticized machinery for infringement act of tort occurred shall be applicable to the earth.
 
2, Russia choose applicable law court.
 
Court to law by many countries for reference in the field of legal application reasons: one is a lot of scholars believe that the tort and criminal law crime has a lot of the same or similar in nature, because does not have the extraterritorial effect of criminal law, the place where the act of tort and when not to method adopted by the court. Therefore, a country's court can only apply its own law, and cannot apply the foreign law. Second, when the judge the application of law, not familiar with foreign laws, the applicable foreign law will be difficult.#p#分頁標題#e#
 
Apply the law of approach to court there are unreasonable place: when infringement behavior occurs, is choose by the victim in the court, where the tortfeasor is unpredictable case which is applicable law. Apply the law of practice court to increase the difficulty when the infringement disputes. And different applicable law court is different, also need not, the result of the cases that go against the verdict of fair, is unfavorable to the execution of the verdict.
 
3, Britain, Austria, the United States have chosen to apply the most significant relationship principle.
 
The most significant relationship principle of positive influence: one is conducive to the identity of applicable law. Because of the different rules of private international law, it is difficult to guarantee to do in terms of the applicable law is unified, and the core of the most significant relationship principle namely choose have the closest relations with the law, according to the most significant relationship principle shall be governed by the laws of the area, make the applicable law to the same legal relationship are the same. The second is conducive to the objectivity and impartiality of the verdict. Traditional law applicable rules of private international law has a mechanical and rigid. It in solving the problem of the specific legal relationship conflicts are based on predefined points in search of applicable law, easy to cause the unreasonable law applicable to some of the cases, thus affecting the case just settlement.
 
The negative influence of the most significant relationship principle: the most significant relationship principle has great uncertainty and fuzziness, in practice it is not easy operation, can cause gives too much discretion of the judge. Too much discretion will have the following drawbacks: one is the uncertainty and fuzziness, make people unable to determine when to engage in legal activities which have the closest relations with the case law country, leading to the instability of the applicable law and unpredictability.
 
4, Portugal, belarus, have chosen to use common belongs to the people of Czechoslovakia.
 
Choose apply the law of reason belongs to the people: for the verdict of fair case, the two parties of the case was the same nationality or domicile in the same land, choose the same country law is fair to both sides, but also to the execution of the verdict;
 
The disadvantages of the people law: common controversy of nationality and domicile has a long history, some countries nationality as one method of connection points, some countries for residence is a method of connection points. Different countries to people's understanding of the different, this makes when choosing applicable law may produce different results.
 
(2) in different countries to choose the applicable law of the flexible approach:
 
1, exempted from clause as "safety valve" (belarus)#p#分頁標題#e#
 
To waive the benefits of the applicable terms and conditions as a "safety valve" : the essence of which is national in foreign-related civil and commercial legal relationship through the conflict rules to adjust in the process of a kind of important tool to maintain the interests of the country. Using exempted from clause, it is conducive to maintaining the country's order, implement other countries' laws may be harmful to the country's public order; The second is to protect their own interests, shall be governed by the laws of other countries may damage the interests of their own; 3 it is conducive to the verdict of fair of our citizens.
 
To exempted from applicable terms as a "safety valve" adverse effect: if countries are exempted from applicable terms are used to maintain their own interests, is obviously harm the interests of other countries, it is bad for the relationship between countries. With the continuous development of economic globalization, countries in the field of law and an accompanying into contact, if countries exempted from applicable provisions, abuse will affect the normal communication in various countries, and even produce friction.
 
2, the introduction of the autonomy (the eu, Switzerland)
 
Choose to introduce the benefits of party autonomy: in terms of the applicable law admit the autonomy of the parties, to give the parties to choose the power of the law, has become the development trend of the most significant in the international community. The parties in the case of certain legal relationship, and familiar with the case, if the parties choose the applicable law, dealing with disputes. Choice of law, the parties will make the outcome justice, also won't let the parties to object to the decision, is conducive to the execution of the verdict. Choose to introduce the benefits of party autonomy: in terms of the applicable law admit the autonomy of the parties, to give the parties to choose the power of the law, has become the development trend of the most significant in the international community. The parties in the case of certain legal relationship, and familiar with the case, if the parties choose the applicable law, dealing with disputes. Choice of law, the parties will make the outcome justice, also won't let the parties to object to the decision, is conducive to the execution of the verdict.
 
Select the introduction of the disadvantages of the autonomy: in infringement cases both parties often lack sufficient knowledge of the law, if the choice which apply the law, may produce certain consequences, not conducive to the solution of the dispute. If the parties have different opinions in choosing the applicable law, and cannot come to an agreement, the adopted whose opinions would become a new problem. Select the introduction of the disadvantages of the autonomy: in infringement cases both parties often lack sufficient knowledge of the law, if the choice which apply the law, may produce certain consequences, not conducive to the solution of the dispute. If the parties have different opinions in choosing the applicable law, and cannot come to an agreement, the adopted whose opinions would become a new problem. Select the introduction of the disadvantages of the autonomy: in infringement cases both parties often lack sufficient knowledge of the law, if the choice which apply the law, may produce certain consequences, not conducive to the solution of the dispute. If the parties have different opinions in choosing the applicable law, and cannot come to an agreement, the adopted whose opinions would become a new problem.#p#分頁標題#e#
 
3, increase various connection point (USA)
 
Choose to add the effect of multiple join points methods: only to rely on a connection point to choose the law, is not conducive to solve the problem of legal application. If in one case, there are no laws in the preset points, will affect the trial process. Add the various points in the law, can make the court case in time, can effectively protect the interests of the victims the applicable law in the provisions of the state of agile practices should draw lessons from, exempted from applicable provisions to protect the interests of our country, introduce the principle of party autonomy, and is beneficial to the victim for legal justice, increase various connection point is beneficial to our country's courts timely handling cases. The way to increase the flexibility, all through the time of verification, and many countries are in use, although have a little defect, but before the premise of reasonable utilization, and help to the provisions of tort law applicable to the perfect of our country.
 
Add a variety of the disadvantages of the join way: if appear many join points in a case, this needs the trial court to make a choice, how to choose the connection point will increase the complexity of the cases. Court when screening points, will obviously increase the burden of the court's judicial, the court to countries in the pursuit of justice pay high social costs of the verdict
 
4, the principle of introduction to the victim: (Switzerland)
 
Introduction for the victim to the principle of reason: in the field of infringement, the victim is often weak side, only rely on their own strength is difficult to maintain their own legitimate rights and interests, needs the law as far as possible to protect their legitimate interests. Fully considering the rights and interests of the weak, also reflected the essence of the legal justice.
 
Disadvantages: tort belongs to the general civil legal relationships, according to the principle of "everyone is equal before the law", the infringer and the legal status of the victim should be equal, not deliberately to protect victims, the bias in favor of the victim is apparently lack of proper. Although the current international society to protect vulnerable side, as a basic principle of private international law, however, the victims in the cases of infringement is not necessarily the weak side, probably the infringer is the weak side, this bias in favor of the victim obviously is not fair for the infringer. If the victim's interests while ignoring the interests of the infringer, will lead to further intensify contradictions of parties
 
(3) summarize the rules of the European and American countries in terms of the applicable law the applicable law in the provisions of the state of agile practices should draw lessons from, exempted from applicable provisions to protect the interests of our country, introduce the principle of party autonomy, and is beneficial to the victim for legal justice, increase various connection point is beneficial to our country's courts timely handling cases. The way to increase the flexibility, all through the time of verification, and many countries are in use, although have a little defect, but before the premise of reasonable utilization, and help to the provisions of tort law applicable to the perfect of our country.#p#分頁標題#e#
 
Conclusion: most countries have to tort law as the foundation, to the common people method as an alternative rules, and to the most significant relationship principle. (Portugal, belarus, the Czech republic, Switzerland, the United States)
 
Reference to reason: the applicable law in the provisions of the state of agile practices should draw lessons from, exempted from applicable provisions to protect the interests of our country, introduce the principle of party autonomy, and is beneficial to the victim for legal justice, increase various connection point is beneficial to our country's courts timely handling cases. The way to increase the flexibility, all through the time of verification, and many countries are in use, although have a little defect, but before the premise of reasonable utilization, and help to the provisions of tort law applicable to the perfect of our country. the applicable law in the provisions of the state of agile practices should draw lessons from, exempted from applicable provisions to protect the interests of our country, introduce the principle of party autonomy, and is beneficial to the victim for legal justice, increase various connection point is beneficial to our country's courts timely handling cases. The way to increase the flexibility, all through the time of verification, and many countries are in use, although have a little defect, but before the premise of reasonable utilization, and help to the provisions of tort law applicable to the perfect of our country.
 
5, the perfect multinational environment tort law applicable Suggestions in our country
 
To sum up, applicable to the general tort law concerning foreign legislation put forward the following Suggestions:
 
1, adhere to the place where the act of tort as the basic principles of applicable law, that is, foreign infringement applicable in tort law, tort law including infringement of implementation of the local law and tort law results. If both are inconsistent, no longer through the court to select applicable, but to transfer the rights in the cases of infringement of the victim, the victim to choose and where applicable laws, to protect the interests of the victims to the greatest extent.
 
2, still belongs to the people together by the parties to replace the tort law. That is, if both parties are citizens of the same country or have established domicile in another country, or habitual residence in the same place, the law of their own country can also be applied.
 
3, the introduction of more points to increase the flexibility of the rules, such as damage results occurred; Implement harm behavior; Companies to set up and the business of the parties; A link between the parties has the contact with the most concentrated place...
 
4, introduce the principle of autonomy of the parties, namely, allowing the cases of infringement of the parties in the infringement occurred after even before all can negotiate choice to solve because of the infringement of legal relation of rights and obligations.#p#分頁標題#e#
 
5. To be exempted for terms as a "safety valve" of Chinese social order maintenance, i.e., in accordance with the above provisions, apply to the foreign law, if the following circumstances, can be exempted from the above provisions shall be applicable to fundamentally far beyond or below: (1) compensation required by the laws of the People's Republic of China appropriate compensation. (2) the claims do not belong to the scope of the law of the People's Republic of China tort compensation.
 
References:
 
(1) the monograph on new private international law, private international law, yuan according to the publishing company, 2006), p. 187.
 
(2) John, Mr Rees: "Rome ii regulation: privacy tort conflicts! For simone DE si supplement"
 
(3) chao-ching hsu: studies of private international law and comparative law,
 
(4) Zhao Xianglin editor: the private international law, China university of political science and law press, 2005), page 53
 
(5) [British] QiXiEr and noth: "private international law"
 
(6) Liu Shaoyun. Theory of the perfection of legislative provisions shall be applicable to the tort law concerning foreign affairs in China [J]. Journal of guangxi management cadre institute of politics and law, 2006, (5).
 
(7) Zhao Xianglin, du new lili. A study of the problem of private international law legislation in China [M]. Beijing: China university of political science and law press, 2002.
 
(8) of the applicable law of tort concerning foreign principle [J]. Journal of management cadre institute of politics and law in heilongjiang province, 2001, (4).
 
(9) The applicable law of foreign-related tort principle, and a review of the general principles of the civil law in our country and the relevant provisions of the private international law demonstration law [J]. Journal of guizhou university (social science edition), 2000. (01).
 
(10) of China private international law society. The People's Republic of China private international law demonstration law [M]. Beijing: law press, 2000.
 
(11) Jin Pengnian. Private international law on tort law applicable [J]. Journal of legal research, 1998, (3).