It is of great significance to carry out environmental liability insurance in China, and the practice of developed countries provides useful reference. China should develop environmental liability insurance according to local conditions.
Environmental liability insurance refers to the liability insurance with the content of environmental compensation or governance responsibility that the insured should bear due to environmental pollution. Liability insurance belongs to the broad category of property insurance, which means that the insured transfers the risk of civil damage to the insurer according to law.
Liability insurance can be divided into public liability insurance, employer liability insurance, professional liability insurance, product liability insurance and other types.
Environmental liability insurance is developed from comprehensive general liability insurance (CGL).
Before the 1960s, environmental risks were not prominent, and environmental liability cases were few. Therefore, the CGL insurance policy does not list environmental liability damage as an excluded liability, that is to say, the CGL insurance policy covers pollution risks. By 1973, almost all CGL policies exclude the environmental liability caused by intentional environmental pollution and gradual pollution from the insurance coverage.
There are two additional pollution liability clauses in CGL policy: one is the limited pollution liability clause at designated place, which covers personal injury and property loss caused by pollution accidents, and is generally limited to sudden or sudden damage accidents caused by environmental pollution by the insured; The other is the pollution liability clause at the designated place, which not only covers personal injury and property loss, but also bears the cost of cleaning up the pollution of the insured's premises. At present, environmental liability insurance is mainly divided into two categories: environmental damage liability insurance and site management liability insurance. I. Characteristics of environmental liability insurance 1. The underwriting conditions are strict and the coverage is limited. Environmental pollution liability is usually extensive and uncertain, with high compensation amount and sometimes huge funds. In order to protect their own interests and ensure financial balance, commercial insurance companies often make strict provisions on underwriting responsibility and scope. For example, there are 10 exclusions in the above "pollution liability clauses at designated places". Both the public liability insurance in the United States and the third party liability insurance in Europe contain unexpected clauses, and any pollution that is not unexpected is excluded. Such as personal injury or property loss caused by the discharge and treatment of waste liquid, waste gas, waste residue, air, water and soil. It is not covered by insurance. 1 Because the court's interpretation of accidents and accidents is too broad, the insurer even thinks that all pollution risks in the CGL policy should be included in the exclusion scope. 2. Independently determining the rate of environmental liability insurance is characterized by large liability for compensation, high technical requirements for insurance, and the situation of the insured varies widely. Therefore, the insurer should conduct on-the-spot investigation and evaluation of each subject matter insured, and determine the insurance premium rate respectively to reduce the risk. The contents of each insurance contract are specific. 3. The operation risk is high and needs government support. From the practice of western countries, pollution liability is complex, the amount of compensation borne by environmental liability insurers is too large, the coverage is narrow, and the operational risk is much higher than other commercial insurance. In order to develop environmental liability insurance and form diversified environmental protection forces, the government needs strong support. Such as tax incentives, government enforcement of certain types of environmental liability insurance, etc. Second, the significance of developing environmental liability insurance 1, and increasing the number of participants in controlling environmental pollution. At present, the environmental pollution in China is quite serious, and it is one of the most polluted countries in the world. In 2002, China's total wastewater discharge was 43.95 billion tons; The sulfur dioxide emission is19.27 million tons, the smoke emission is101300,000 tons, and the industrial dust emission is 94 10/0,000 tons; The national output of industrial solid waste is 950 million tons. 2. Environmental pollution has caused great losses to the national economy. The United Nations Human Development Report of China in 2002 pointed out that environmental problems caused China to lose 3.5-8% of its GDP. In 2002, the national investment in environmental pollution control was 654.38+036.34 billion yuan. Environmental pollution directly affects people's life and health, and diseases related to environmental pollution have increased significantly in many areas. The epidemic of SARS has sounded the alarm for environmental protection. In the face of increasingly serious environmental pollution, environmental protection is not only a matter for the government and environmental protection departments, but also requires the participation of the whole society. 2. Transfer risks, reduce the business burden of enterprises, and reduce the environmental pressure of the government. Environmental pollution is characterized by a large area, a large number of victims and a huge amount of compensation. General polluting enterprises cannot bear all the losses caused. Even if the enterprise can bear all the losses, the huge compensation will also affect the normal operation and development of the enterprise. If the enterprise is insured with environmental liability insurance, it can reduce the uncertainty in the future with a small amount of certain expenditure (premium) to ensure the continuous stability of production and operation, so as to avoid the infringer from affecting economic and social development due to excessive compensation burden or even bankruptcy. At the same time, in order to reduce payout ratio, the insurer will definitely ask professionals to control and manage the pollution risk of the insured. Measures such as grading and floating rates can be taken to urge the insured to do a good job in disaster prevention and loss prevention to reduce the occurrence of pollution accidents. Therefore, the insured enterprise has obtained the ability of indirect risk control. Under the dual effects of norms and indirect incentives, the insured enterprises have the ability to minimize the probability of pollution accidents. In addition, in many environmental pollution incidents, the government plays the role of the last responsible person. Developing environmental liability insurance can also reduce the environmental burden of the government through risk sharing, so that the damaged production conditions and living environment can be rebuilt and repaired in time. 3. Reduce the transaction cost of environmental disputes and effectively safeguard the public's environmental rights and interests. In recent years, the number of environmental disputes in China has increased year by year, from 198 to180,000, from 1999 to 250,000, and from 2000 to more than 300,000. In many environmental disputes, because the infringer's compensation ability is insufficient, the litigation cost is high and the litigation process is protracted, many victims can't actually get compensation. It is estimated that 88% of environmental pollution cleanup disputes in the United States are spent on transaction costs (attorney fees and related expenses), and only 12% is spent on pollution cleanup. In China, many pollution victims are vulnerable groups, so they can only flinch from the high litigation costs, and it is difficult to get fair compensation. When they cannot get fair compensation, some people will take extreme measures, which will affect social stability. The establishment of environmental liability insurance, in which the insurer bears the economic compensation responsibility of the insured, can reduce the transaction cost of environmental disputes, pay compensation to the victims in time, and effectively protect the environmental rights and interests of citizens. 4. Transfer the environmental pollution risk responsibility of western development. The large-scale development of the western region is carried out under the condition that the environmental carrying capacity of the western region is quite weak, so we must take the road of sustainable development and not at the expense of polluting the environment. In the process of western development, especially in energy development, the risk of environmental pollution is everywhere. Assuming that the development plan will enable the western region to reach the level of economic development in the eastern region within ten years, the total investment will be about 5 trillion yuan, of which 4 trillion yuan will be used to control the environment and 1 trillion yuan will be used to invest in enterprises. With China's current economic strength, it is simply impossible to do so. In 5200 1 year, China issued 43 billion treasury bonds for the development of the western region, but only tens of billions of funds are needed to control the current environmental pollution in Lanzhou. It is conceivable that environmental pollution in new development projects will bring great pressure to the national finance. Therefore, we should not let the limited funds in the western development bear the risk responsibility of environmental pollution, but should pass on the risk, and require investors to take out environmental liability insurance under the principle of polluter pays, so as to obtain the right to share the compensation for losses that may be encountered in the future at a small cost. Iii. Practice of Environmental Liability Insurance 1, Foreign Situation The United States is the representative of the compulsory environmental liability insurance system, which has been implemented since the 1960s. The environmental liability insurance in the United States has gone through three development courses: before 1966, the accident CGL policy covered environmental liability insurance; From 1966 to 1973, CGL policy began to cover the environmental liability caused by continuous or gradual pollution; After 1973, the CGL policy excluded the environmental liability caused by intentional pollution and gradual pollution from the insurance coverage. The United States imposes compulsory insurance on the liability for damage that may be caused by the disposal of toxic materials and wastes. 1988 a professional environmental insurance company has been established in the United States to cover the progressive, sudden and accidental pollution accidents and third-party liabilities of the insured, with the maximum compensation liability per accident 1 10,000 USD. 1989, the United States has designed a "limited pollution liability extension approval form" in its CGL insurance policy to extend the pollution liability to the insured's workplace or operation process. In addition, "pollution liability insurance" and "limited pollution liability insurance" have independent liability insurance policies to be sold to the insured. In America, environmental pollution liability insurance is a part of engineering insurance. Whether it is an insurer, a subcontractor or a consulting designer, it is impossible to obtain a project contract if they participate in this kind of insurance and are not insured. The U.S. government also collects $500 million in taxes from property and catastrophe insurance companies every year, which is specially used to clean up serious environmental pollution, coordinate the responsibilities undertaken by insurance companies and the conflicts of interests among polluters, and disperse the huge responsibilities that insurance companies may face. Germany combines compulsory liability insurance with financial guarantee or guarantee. In Germany, the environmental pollution liability insurance has always listed the losses caused by progressive pollution as the exclusion liability for many years. Starting from 1965, the insurer began to compensate for the gradual pollution loss of the water surface. After 1978, the insurer agrees to compensate for the property losses caused by air and water pollution, but if it happens outside the area where the insured enterprise is located, the losses caused by foreseeable regular discharge are still listed as the exclusion liability. Since 1 991110/month1,Germany has enforced environmental damage liability insurance according to law. In order to ensure that the victims of environmental infringement can get compensation and the injurers can fulfill their obligations, the Environmental Liability Law stipulates that the owners of specific facilities must take certain preventive and safeguard measures, including signing a liability insurance contract for damages with insurance companies, or providing economic guarantees or guarantees by state, federal governments and financial institutions. In case of violation, the competent authority may prohibit its operation in whole or in part, and the owner of the facility may also be sentenced to fixed-term imprisonment of not more than one year or fined. In Britain, in the early 1960s, the insurer also took the pollution liability caused by the defects of purification facilities and the discharge of harmful accumulation, smoke, steam and other pollutants as an exclusion liability, but by 1968, there was only one exclusion liability left in the insurance contract: the pollution liability caused by radioactive substances, and the suddenness of the accident was no longer a necessary condition. 2. Development Status of China The International Convention on Civil Liability for Oil Pollution Damage stipulates the implementation of compulsory liability insurance for oil pollution damage. As a contracting state, the second paragraph of Article 28 of China's Marine Environmental Protection Law stipulates that ships carrying more than 2,000 tons of bulk cargo oil shall hold effective civil liability insurance for oil pollution damage. In addition, China has implemented compulsory environmental liability insurance for enterprises, institutions and operators engaged in offshore oil exploration and development. In the early 1990s, insurance companies cooperated with local environmental protection departments to launch pollution liability insurance, which was first launched in Dalian at 199 1. Later, Shenyang, Changchun, Jilin and other cities also started. Generally speaking, China's pollution liability insurance is limited to a few cities, and there are few insurance companies. Iv. Several Issues to be Paid Attention to in Developing Liability Insurance 1 The development of environmental liability insurance depends on the perfection of environmental protection laws and supervision and management systems. Responsibility is a creation of law, and the development of environmental liability insurance ultimately depends on the perfection and implementation of law. The practice of western countries proves this point. The laws and regulations related to environmental protection in the United States mainly include 1970' s Clean Air Law, 1987' s Clean Water Law and 1980' s Comprehensive Law on Handling, Compensation and Liability of Environmental Problems. Although it has been revised several times, the basic framework of the law remains unchanged, and the polluter pays principle is still adopted. For example, for serious violations of environmental standards, the court will impose a daily fine of $25,000-$50,000 on enterprises that violate the regulations, imprisonment for one year or more on individuals, and even close down enterprises that violate the regulations. 1980 "comprehensive law on environmental problems, compensation and liability" establishes the strict responsibility of American property owners, and stipulates that the existing owner of land should bear the cost of cleaning up the hazardous waste located on his land, even if the waste is dumped on his land by the former owner or lessee of the land. The concern of EU member states on environmental issues is in step with the development of the United States. 1997, item 17 of the EU policy statement indicates that the EU will adopt the "polluter pays" principle: "the cost of preventing and eliminating pollution infringement must be borne by the polluter" as a principle. According to the Single European Act 1987, environmental issues are given priority in the EU's policy plan. In the process of formulating environmental policies, the European Union put forward a higher standard than the United States-the precautionary principle, which holds that if there is a serious or irreversible threat of environmental pollution, "lack of sufficient scientific certainty will not be the reason for delaying the implementation of low-cost measures to prevent environmental degradation". China's environmental protection laws and regulations are under construction. Article 124 of the General Principles of the Civil Law stipulates: "Whoever pollutes the environment and causes damage to others in violation of the state's decision to protect the environment and prevent pollution shall bear civil liability according to law." Article 4 1 of the Environmental Protection Law stipulates: "Those who cause environmental pollution hazards shall have the responsibility to eliminate the hazards and compensate the units or individuals directly damaged." Generally speaking, China's environmental protection laws and regulations are not perfect, especially the lack of legal provisions on pollution compensation, coupled with lax law enforcement, which objectively does not pose pressure on polluters. According to the estimation of authoritative departments, the direct economic losses caused by environmental pollution in China are hundreds of billions of yuan every year, but the compensation amount is pitiful. In the process of law enforcement, most of the liability for pollution compensation is borne by the state and society, and the pressure on enterprises is not great enough, lacking the motivation to participate in environmental liability insurance. In addition, the existing ways to solve environmental disputes in China are mainly civil litigation and administrative mediation. Pollution victims not only have to bear high legal fees and attorney fees, but also have difficulties in the process of claiming compensation. Because most polluting enterprises are large local profits and taxes, or are explicitly or implicitly protected by local governments, polluters lack the risk awareness of participating in insurance. With the improvement of environmental protection laws and regulations, environmental liability insurance has great development potential. 2. Insurance design should avoid moral hazard and adverse selection. Once environmental pollution occurs, the amount of compensation is often huge, and the determination of responsibility is complicated. It is necessary to prevent the occurrence of moral hazard and adverse selection of the insured as much as possible. Because the amount of pollution losses caused by different enterprises is very different, scientific methods should be adopted to evaluate risks when determining insurance rates, and different insurance rates can be formulated according to different industries to avoid adverse selection. But it is very important to master the right degree. At present, the rate of pollution liability insurance in China is relatively high, with the lowest rate of 2.2% and the highest rate of 8%, which is several times higher than other types of insurance. In such a high payout ratio and such a low payout ratio, enterprises have no incentive to take out insurance. After taking out environmental liability insurance, enterprises should formulate corresponding clauses to limit or reduce the dishonesty or fraud of the insured. For example, limit the scope of insurance liability, clarify the exclusion liability, and impose severe economic sanctions on the dishonest behavior of the insured to reduce moral hazard. In insurance practice, the insurer should inspect the insured enterprise, strictly estimate the risk degree of the enterprise, and ask the insured to provide meaningful supplementary information to determine the loss probability and amount; The insurer shall also make suggestions on the insured's disaster prevention and loss prevention equipment and measures. During the validity period of the contract, the production activities of the enterprise must be supervised and measures to avoid environmental pollution accidents must be put forward. In the event of an insurance accident, the degree of liability of the enterprise should be clarified, different compensation amounts should be determined according to the types and causes of pollution, and sanctions should be decided according to its violation of the anti-pollution measures proposed by the insurer. 3. Determine the scope of insurance liability and exclusion liability according to local conditions. The scope of American environmental liability insurance policy is also strictly limited. Its standard liability policy excludes the expenses related to hazardous waste cleaning from the underwriting liability. Before the mid-1980s, the provisions of this exclusion clause were not clear, and there was a heated debate in state courts, and most people stood on the insurer's side. For a company involved in production or practical technology, the cost of cleaning up environmental pollution and compensating the injured party may be astronomical. For example, Exxon Valdez paid $2 billion to clean up the oil spill in Alaska in 2000, and the ultimate responsibility was tens of billions more than that. Facts have proved that the capital of all property accident insurance companies in the United States is about $230 billion, and the estimated cost of cleaning up environmental pollution is1000-1000 billion. This kind of property loss liability will be aggravated by class action. Even if the insurance only pays 1/5 of the estimated cost of global existing pollution clean-up, it is enough to bankrupt the entire insurance industry. Therefore, the development of environmental liability insurance should be moderate. China's environmental liability insurance is in its infancy, and the relevant laws and regulations are not perfect, so it is quite difficult to formulate appropriate insurance contract terms. Therefore, the insurer should strictly limit the scope of liability, and the liability for compensation and preventive expenses caused by the insured's abnormal production activities, violations of norms and intentional acts can be listed as excluded liabilities. Some scholars in our country advocate expanding the scope of environmental liability insurance, but the author believes that from the current pollution situation in our country, the development level of insurance industry and the practice of developed countries, the scope of environmental liability insurance can not be expanded, and it is more practical to play the role of protecting the environment within its ability, rather than multiple types of insurance that cannot be compensated after an accident. Of course, don't go to the other extreme. If the scope of liability is too narrow and the environmental risk transfer of the insured enterprise is too small, the enterprise will have no enthusiasm to take out environmental liability insurance. For example, the payout ratio from 199 1 to 1995 is only 5.7%, and the payout ratio from 1993 to 1995 is zero, far below about 50% of other domestic insurances, while the payout ratio of foreign insurance companies is 70-80. The main reason why 10 payout ratio is too low is that the insurance coverage is too narrow. At present, China only regards the civil liability for compensation caused by sudden pollution accidents as the subject matter of insurance. In fact, the civil compensation caused by pollution is not limited to sudden pollution accidents, but also includes gradual pollution accidents. When pollutants accumulate to a certain extent, it will also cause personal or property damage to the third party, and the frequency and loss of the latter is much greater than that of the former. 4. It is advisable to adopt the development mode of combining government compulsion with government guidance. Judging from the current environmental liability insurance models in developed countries, there are mainly compulsory insurance and non-compulsory insurance. The United States and Sweden are the representatives of compulsory liability insurance, while France mainly takes voluntary environmental liability insurance, supplemented by compulsory liability insurance, and Germany implements the system of combining compulsory insurance with financial guarantee or guarantee. Judging from the development trend, many countries have a tendency to strengthen compulsory liability insurance. When analyzing the compulsory and non-compulsory issues of environmental liability insurance, we cannot but mention Japan. Now, Japan has formulated and implemented a series of laws and regulations concerning air pollution, water pollution and hazardous waste. However, according to the "administrative suggestions" given by local and central government officials, a "pollution control agreement" was reached with enterprises on the operation of factories and industrial development facilities, which was widely used in Japan. The agreement stipulates specific emission standards and puts forward monitoring and reporting requirements. Pollution control agreements are voluntary agreements and have no legal effect. However, Japanese industrial companies do not want to lose credibility because they do not meet the standards set by themselves voluntarily, so they have formulated an effective implementation mechanism. It can be seen that the influence of national culture on the application of law. At present, some industries in China have implemented compulsory liability insurance, but most environmental liability insurance is voluntary insurance. Most enterprises do not participate in this insurance out of luck, which leads to unfair compensation for innocent victims. Based on the present situation of environmental problems in China, we can learn from the models of other countries and implement the system of combining government coercion with government guidance. Compulsory liability insurance shall be implemented for industries that cause the most serious environmental pollution and harm, such as petroleum, chemical industry, printing and dyeing, mining, cement, paper making, leather, thermal power generation, gas and nuclear fuel production, and toxic and hazardous waste treatment. In other industries with relatively light pollution, the government gives active guidance, imitates Japan and puts forward some useful "administrative suggestions", and uses the prestige of the government to let enterprises voluntarily purchase environmental liability insurance. References: 1, Solomon Hubner et al., Chen Xin et al., Property and Liability Insurance [M], Renmin University of China Press, 2nd Edition, 2002, James S. Triesman et al., Pei Ping, Risk Management and Insurance (No.1 1 Edition [M], Dongbei Finance and Economics. 3. In 2002, Wang Canfa. Theory and Practice of Environmental Dispute Resolution [M] Beijing: China University of Political Science and Law Press, 2002 (USA) 4. Wang Mingyuan: Legal System of Environmental Tort Relief [M], China Legal Publishing House, 200 1 6th Edition. Harold Scherbo, Jr., Tao Jing, etc. 1999 7th edition. Wang Zejian: Theory and Case Study of Civil Law (Volume II) [M], China University of Political Science and Law Press, 1997 8th Edition. An Shumin: Feasibility Study on Developing Environmental Insurance in China [J], Chongqing Environmental Science, No.6, September 2000, Liu Yi. Qinghai Finance and Economics, No.5, 2002, 10, An Shumin, Cao Jing: On Environmental Pollution Liability Insurance [J], China Environmental Management, No.3, 2000, 1 1, Chen Liqin: Research on Environmental Liability Insurance System [J], Wuhan University Environmental Law Institute Network 65438. 13, Liu tingmin: on environmental pollution liability insurance, [j] Shanghai Insurance1993No.1.14, Liu Daping: Establishing environmental liability insurance [J], Shanghai Insurance 1992 No.2/kl Owen/McGraw-Hill 1999 16, Nick Lokot, Environmental Insurance Liability, Cameron May, 1996 About the author: Chen Dongmei, female, assistant of the insurance department of Fudan University.