On The Judicial Application Of The Green Principle Of Civil Law In China

As the "crown" of China's "civil code of the 21 st century",the general principles of civil law stipulates the green principle in the form of the basic principles of civil law in chapter 9 of the first chapter.The establishment of the green principle fully demonstrates China's determination and courage in tackling environmental problems,and also demonstrates China's firm belief in the path of green development.This is undoubtedly a wise and forward-looking legislative choice,which has an important impact on the development of environmental law and civil law.However,as a new basic principle of civil law,the green principle is abstract and general,and the relevant concepts are also vague,resulting in constant theoretical disputes and errors in practice,making it difficult to play its due role.Why this article in accordance with the principle of the green into the civil law,how to apply,applicable situation,how to apply the logic of thinking,from theory to clarify the meaning of green principles,status and legal nature,analyzed the legitimacy and the necessity of the judicial application of the green,from practice investigation found the green principle the manifestation of judicial application and existing problems,and then discusses the particularity of the judicial application of the green and the specific method.This paper is divided into three parts:The first part is the general theory of green principle and its judicial application.Due to the increasingly serious environmental problems in reality,the theoretical development of environmental law and civil law makes the green principle put forward in civil law.The green principle was established in the civil law,and the process went through many twists and turns,but eventually it was settled.Green principles can be generally understood as the meaning of "civil subject should save resources,protect the ecological environment",the "resources" should be related to the problem of "environment",not including "RenShenXing resources","human resources","ecological environment" including "ecological","environment" two meanings,"ecological" and "environment" parallel to each other.The status of the green principle is an independent basic principle of the restrictive civil law,which is neither advocated nor subordinated to the principle of public order and good custom.The green principle has the legal nature of "value declaration" and "judgment standard".The judicial application of the green principle has the legitimacy andnecessity,which can not only overcome the limitation of written law,effectively deal with the predicament of the absence of rules,but also meet the development demand of ecological civilization construction.The second part is the investigation of the judicial application of green principle.92 civil judgment documents were obtained through the search of China judicial documents website and the search results were sorted out.Through the analysis of 92 civil judgment documents,we find that,on the whole,the cases involved in the application of the green principle are diversified,the trial levels are dominated by the court of first instance,and mainly appear in the form of reasoning basis.In terms of concrete performance,the judicial application of the green principle includes the declaration of environmental protection concept,citing arguments,filling in legal loopholes and only serving as the basis for judgment.At the same time,there are some problems,such as no need to apply but applicable,inappropriate application,insufficient argumentation,etc.The third part is the judicial application rules of green principle.As a basic principle of civil law,on the one hand,the green principle should abide by the general rules of judicial application of the basic principles of civil law in its judicial application,including: priority should be given to the application of legal rules to avoid escaping to general provisions;When there are loopholes in legal rules,the basic principles of civil law shall be applied as an exception.The judicial application of the basic principles of civil law should have more sufficient reasons;On the other hand,its judicial application has its particularity.It declares the concept of environmental protection in general cases and can supplement the judgment or case measurement in some fields.Specific methods include restricting the exercise of rights,emphasizing the obligation of environmental protection,and judging the effectiveness of legal act.