Empirical study of the dilemma regarding preliminary proof of causality and methods used by victims in China's environmental health litigation

Abstract

Environmental health incidents have occurred frequently in recent years; in China, however, litigation has not been effective in protecting the rights and interests of victims due to their heavy burden of proof. In order to mitigate the burden of proof for victims, the environmental judicature in China introduced the rule of inversion of burden of proof; this means that the victim only assumes the preliminary burden of proof, but in practice it has not been sufficient. Victims in environmental health litigation still face many difficulties in proving causality. Based on the statistical analysis of judicial big data, this paper demonstrates three dilemmas faced by victims. First, the preliminary burden of proof of causality has a high standard. Second, the victim's ability to produce evidence is low. Third, the casual relationship between pollution behaviors and health damage is difficult to identify. When examining the possible legal instruments, there are three aspects to the causes of these dilemmas: theory, judicial practice, and society. The theoretical aspect manifests as the differences between the rule of inversion of burden of proof and the presumption of causality; the practical aspect manifests as the lack of an identification system for personal injury; and the social aspect manifests as the victim's lack of economic, scientific, technological, and information resources, as well as the absence of assistance from government sectors and social organizations. Combining Chinese law with judicial practice, this paper proposes a solution to the dilemma of victims needing to prove causality in environmental health litigation. On the basis of clarifying the theoretical differences between the inversion of burden of proof and the presumption of causality, China should adhere to the rule of inversion of burden of proof, establish an identification system for personal injuries caused by environmental pollution, and use methods such as epidemiological causality, indirect counterevidence, and prima facie bewies. Furthermore, the full functions of the government and social organizations must be brought into play. This will not only help victims demonstrate causality, it can also help victims achieve equitable relief.