The legal regulation of the environment is exemplary of the formation, practice and challenge of modern legal discourse and governance. The latter part of the twentieth century has seen the emergence of environmentalism and the problematisation of the environment in terms of the management of hazard and risk. The social authority of law has meant that it has been inevitably implicated in the contestation and negotiation of environmental governance. In turn, environmental governance and discourse have required a certain refiguring of legal rationality as legal discourse has been confronted by the immanent critique of environmentalism. This thesis will focus on how the environment emerged as problematic and how it came to be governed and of legal interest. Several examples of legal thinking concerning specific environmental problems are analysed, and the manner in which the environment is constructed within the legal discursive domain is examined. Much modern knowledge and understanding regarding the environment developed in part from the specialisation of scientific discourse and experiment, which formed certain areas of expertise, including biology, ecology and toxicology. This scientific knowledge significantly contributed to governmental identification and elucidation of the environment. Modern ecology and associated technologies have facilitated the detailed mapping and auditing of physical environments, and have profoundly effected our modern appreciation of ‘the environment’ as an interdependent, dynamic and potentially fragile web of interdependent physical zones, spaces and activities. Modern environmentalism has emerged through the application of this type of technical scientific knowledge, in combination with certain forms of ‘environmental sensibility’ which treat the environment, not as a thing, or somehow ‘out there’, but as a dynamic process of which humans are a part, which has a history, an economy, and a power to transform and be transformed. The shape of modern environmental governance has been especially influenced by the scientific and ethical critique of environmentalism that connects the origin of ecological risks to technological application and commodity production. Throughout this thesis, specific aspects of the ‘analytics of government’ or governmentality approach derived from Foucault’s writing on governmentality are taken up. Governmentality theory is largely concerned with the contingent relationship between knowledge and power; thus, with analysing specific discourses and associated spaces within which differing knowledge and forms of thinking interrelate and resist each other. The contestation and negotiation associated with environmental governance has confronted legal discourse and led to a refiguring of legal rationality. Legal governance of the environment has stretched and unsettled legal orthodoxy, as the environment does not readily fit into any of the usual categories pertaining to legal rights and interests. The environment, as a legal subject, is not simply a physical space; it is a contingent and instrumental concept, determined by human activity, social values and legal and non-legal calculation.

2011年5月臺灣爆發不肖業者將具有毒性之塑化劑添加入合法食品添加物─起雲劑當中，販賣給多家食品業者，用以生產各種食品及飲料，戕害國民健康。惟案件中消費者僅獲賠求償額的兩千分之一，差距甚大，明顯不如預期，更是引發社會諸多撻伐。本論文藉由上述塑化劑案件，探討食品安全消費訴訟消費者求償困境並檢討現行法的缺失與不足，以符合消費者權益保障之宗旨。 文章中首先針對食品安全消費訴訟特性以及我國食品管制上主管機關的權責劃分進行概念性介紹，並就訴訟中消費者可主張的民法、消費者保護法、食品安全衛生管理法上請求權基礎進行要件及爭點說明。其次，就損害賠償之概念及損害進行界定與討論。另由於此類型訴訟，消費者食用問題產品後，多半不會產生立即性身體傷害或臨床病徵，導致訴訟上消費者就其所受之損害難以舉證而敗訴，故本文藉由參酌美國毒物侵權行為訴訟上之損害認定，將損害概念擴張至損害或「損害之虞」，以解決訴訟上消費者損害認定不易的難題。 此外，於因果關係舉證方面，則藉由德國環境責任法、德國基因科技法上之原因推定理論、美國法上市場佔有率責任之因果關係以及日本法上疫學因果關係理論，作為此類型訴訟我國因果關係認定之參考，並就損害賠償範圍、我國懲罰性賠償金制度的引進、目的、重要爭點等析述討論之。最後，本論文藉由實務上判決，觀察現行食品安全衛生管理法第56條法院適用情形，從中檢討現行條文不盡完備之處，並嘗試提出相關修法建議，希冀可作為將來立法者修法之參考。 / In May, 2011 the Taiwan Food and Drug Administration reported that plasticizers, such as: di(2-ethylhexyl)phthalate (DEHP) and di(iso-nonyl)phthalate (DINP), were illegally added to clouding agents used in foods and several beverages.The endocrine disruptors have been linked to developmental problems with children and pregnant women, etc.This paper would mainly discuss the issues of the reflection of civil liabilities arising from food scandals, particularly focus on the plasticizer food scandal in Taiwan. First, the author gives an overview of consumer litigation of food safety, food administration in Taiwan, and the basic of claim such as the Civil law, the Act Governing Food Safety and Sanitation as well as the Consumer Protection Law.Secondly, interprets the concept of civil compensationand expand the traditional concept of personal injury to risk of injury (the plaintiff has not manifested any symptoms of disease but may suffer from illness in the future) by referring to toxic tort.Thirdly, illustrates the special rules on causation in the aspect of the environmental liability law, the biotech law and the market share liability to solve the problems of the causation.Fourthly,probes the compensation scope and punitive damages. Finally,by observing court decisions on article 56 of the Act Governing Food Safety and Sanitation, the author analyzes the deletion of existing legal norms and suggests a proposal for law amendments.