Research On Legal System Of Environmental Investment And Financing

The legal system of environmental investment and financing is the law andpolicy of economic activities, by which certain economic subjects invest and Financecapital for economic and social benefit, paying close attention to environmentalfactors, and undertake environmental social responsibility in order to achievesustainable development of environment and resource. It has both public and privateproperty, and intensively reflects law values, such as common and social justice,ecological order, limited personal freedom, environmental efficiency. Its legal thoughtis from the value of social benefit. The legal relationship of environmental investmentand financing is the relationship of rights and obligations between investors andfinancers, such as government, financial institutions, other enterprises, organizationsand individuals.It has gotten great progress in the legal system and practice of environmentalinvestment and financing in China, which mainly reflected in: investment andfinancing law pay attention on the role of market mechanism on environment;company law has increased the clause of corporate social responsibility; fiscal and taxlaw has stipulated the relevant preferential policies; environmental fund pattern haspreliminarily formed. But there are also shortcomings, which mainly reflected in thelack of environmental clause, the defects of environmental liability system and fiscaland tax law, the inadequate legal protection of environmental fund.According to the problem of the lack of legal provisions about environmentalinvestment and financing, we need to use the experience of environmental clause ofinvestment and financing law of USA and the Asian Development Bank to improvethe one of Chinese. First, we need to improve domestic investment and financing lawby the way of adding environmental spirit and clause. Second, we need to improveinternational bilateral investment agreements by the way of adding the clause of“necessary measures”, explanation obligation of host, and minimum environmentalstandards. Third, we need to improve dispute settlement mechanism of environmental clause in aspects of judge’s power of discretion, the burden of proof, resolution ways.According to the problem of the defect of environmental liability system, weneed to use the experience of the environmental compensation liability andenvironmental social responsibility of USA and EU to improve investors andfinancers’ environmental responsibility. First, we need to improve the environmentalliability of lender and shareholder through clarifying lender’s environmentalcompensation liability when the debtor goes bankrupt or meets with economicdifficulty. Second, we need to improve the environmental social responsibility ofenterprises through the establishment of the dual legal regulation of the mandatoryand instructive.According to the problem of the defect of fiscal and tax legal system, we need touse the experience of tax expenditure, budget and transfer payment of USA andenvironmental tax and government green purchase of Netherlands. First, we need toimprove tax law through harmonic environmental tax system and the political andeconomic system, establishing tax expenditure. Second, we need to improve fiscal lawin aspects of adding environmental expenditure clause into budget law, improvinglegislation and supervision of financial transfer payment to environment, establishingmechanism of environmental standard and exchange of information.According to the problem of inadequate legal protection of environmental fund,we need to use the experience of US state revolving fund and Canada environmentalresponsible investment fund. First, we need to improve local governmentalenvironmental funds in aspects of changing the sources of capital, operation, field ofinvestment and risk control. Second, we need establish legal system of nationalenvironmental fund in aspects of legal position, initial capital, investment policy,organization and structure, commercialization, etc. Third, we need to improve legalsystem of environmental responsible investment fund, in aspects of investmentstrategy, disclosure of environmental responsibility, prudent management andanti-delegation.