Research On The Application Of Green Principles

Under the background that human society is increasingly emphasizing sustainable development,Article 9 of my country’s "Civil Code" establishes the development principle of protecting the ecological environment and saving resources,which is called the green principle in academia.After the establishment of the green principle,there have been a certain number of cases where the principle has been invoked to resolve civil disputes.This conforms to the trend of green development and is a benign response to the environmental and resource issues that the society is concerned about.However,because the requirements for the application of the green principle are not clear,a certain degree of chaos has appeared in the application.Therefore,it is particularly important to follow the requirements of citing accuracy,necessary moderation,and sufficient reasons to construct the applicable rules of the green principle to prevent it from being misused and abused.Only in this way can the value of the green principle be truly brought into play.In addition to the introduction and conclusion,this article is divided into four chapters.The first chapter is about the green principle and its controversy.The green principle cannot be established as an advocacy principle or a subordination principle,and it does not meet the purpose of legislation.The green principle should be regarded as the basic principle of independent restrictive civil law,restricting the exercise of resource and property rights by civil subjects.As one of the basic principles of my country’s civil law,the green principle has the same commonalities as other basic principles of civil law,and it is also unique because it is an innovatively established brand-new basic principle of civil law.From the perspective of literal interpretation,the "ecological environment" and "resources" in Article 9 of the Civil Code are important concepts for understanding the application of the green principle,but they refer to vagueness and the text itself is oversimplified.This article does not discuss this in depth,but tends to expand the explanation in terms of content,that is,while focusing on the balance between people and resources and the environment,we should not only stay at the level of natural ecology,but should also focus on the balance of relationships between people.After all,the green concept should be integrated into the field of civil law and restrict civil activities,so it should also be coordinated with the object of civil legal relations in terms of connotation and extension.Chapter Two is the prerequisite and basis for the application of green principles.The basic attribute of the green principle is to achieve a balance of interests between civil subjects and society.As a "general clause" in the civil law,the function of the green principle as the basis for judgment should be affirmed,which is the prerequisite for the judicial application of the green principle.In order to overcome the shortcomings of private law autonomy and realize substantive justice,modern civil law tends to balance personal interests and social interests by restricting the exercise of rights by civil subjects.In order to protect the foundation of social life-the safety of the ecological environment and resources,appropriate restrictions on the punishment and use of rights holders are also a manifestation of the socialization of modern civil law.Behaviors that damage the ecological environment and waste resources occur from time to time,and the long-term absence of specific legal norms related to the civil law or the difficulty of adapting to new situations constitute the practical basis for the application of green principles to handle civil disputes.The third chapter is the status quo of the application of green principles.A large number of case samples were retrieved from the China Judgment Documents Network and more than one hundred relevant and representative cases were selected as the empirical analysis objects.Through the investigation of these cases,we have obtained the geographical distribution of the judicial application of the green principle in the country,the level of trial and the cause of the case involved,and the cases where the green principle is applied can be roughly divided into declarative application,confirmation of contract cancellation,confirmation of contract invalidity,and filling Types of contract loopholes,determination of tort liability,and determination of civil liability.Several major problems have been discovered from the existing cases where the green principles are applied to judges:deviations in the understanding of the concepts of "resources" and "ecological environment",fuzzy application standards,improper application methods,limitations in the application field,and the green principles are not legally binding.The fourth chapter is to construct the applicable rules of the green principle.The establishment of uniform applicable rules for the green principles is an inevitable requirement for the correct use of the green principles’ judging function,including the establishment of general rules and specific rules,and specifying different application modes.As one of the basic principles of civil law,the green principle should also comply with the general requirements of the application of the basic principles of civil law,such as the priority application of specific rules,exceptions to the application of basic principles,and sufficient reasons for application.At the same time,due to the particularity of cases involving the use of green principles for adjudication in practice,specific issues should also be analyzed in detail,the application of different types of cases should be summarized,and specific operational rules should be established for reference in judicial practice.The innovation of this article is to categorize the application of green principles in judicial practice,which generally covers the current practice of applying green principles in civil trials,and provides solid case empirical analysis support for the judicial application of green principles.Through the typological analysis of the application of the green principle,the problems in the application of the green principle are summarized,and perfect countermeasures are proposed.The disadvantage is that,given the lack of research capabilities and the lack of practical experience,the understanding of the green principle itself and the research on judicial application are still not deep enough,and even fall into the "trap" of cognitive errors.