论第三方治理合同无效情形下的环境侵权责任界定

第三方治理合同无效的可能情形均被《合同法》第52条所囊括，实践中以"违反法律、行政法规的强制性规定"情形最为常见。在前述合同无效情形下，由排污企业与治污企业中的一方单独、双方按份、双方连带承担环境侵权责任等迥异的司法裁判结果均有所呈现。第三方治理合同无效情形下的环境侵权责任界定，应先按"污染源的控制与排放"的"文义射程"甄别排污企业或者治污企业的"污染者"身份，并依法认定其"污染者"责任；对于不符合"污染者"身份的排污企业或者治污企业，若有证据证明其与"污染者"存在共同因果关系的分别侵权行为，则应承担按份责任；若有证据证明其与"污染者"存在共同侵权、共同危险、累积因果关系的分别侵权或者教唆、帮助侵权等行为，则应承担连带责任；若有证据证明其为有过错的"第三人"，则应与"污染者"承担不真正连带责任。排污企业和治污企业间的最终责任份额应根据其过错程度和原因力大小等因素确定，以期实现第三方治理合同无效情形下环境侵权责任界定的息争止纷。

On the definition of environmental tort liability under the invalidity of third-party governance contract

The possible cases of invalid third-party governance contracts are covered by Article 52 of the Contract Law. In practice, "violation of mandatory provisions of laws and administrative regulations"is the most common situation. In the case of the above-mentioned contract invalidation, the results of judicial judgments are different, such as one of the pollutant discharge enterprises and the pollution control enterprises alone, the two parties, and the two parties jointly bear the environmental tort liability. Definition of environmental tort liability in the case of invalid third-party governance contract should firstly identify the "polluter" between the pollutant discharge enterprises and the pollution control enterprises according to the "literal range" of "pollution source control and discharge", and then determine its "polluter" liability according to law. For pollutant discharge enterprises or pollution control enterprises which do not conform to the "polluter" status, if there is evidence to prove that there is a common cause and effect relationship between them, they should bear the liability according to their share; if there is evidence to prove that there is joint infringement, joint danger, cumulative causality, or abetting or helping infringement with the "polluter", they shall bear joint and several liability; if there is evidence to prove that they are the "third party" with fault, they shall bear incomplete joint and several liability with the "polluter". The determination of the ultimate liability share between pollutant discharge enterprises and pollution control enterprises should be based on the degree of fault and the magnitude of the causal force, to solve the disputes in the definition of environmental tort liability in the case of invalid third-party governance contracts.