Legal Dogmatic Study On The Green Principle Of Civil Law

In order to respond to the severe situation of resources and ecological environment in China,the green principle is written into the General Provisions of Civil Law in 2017 and later into the Civil Code.It has been four years since the green principle was established.During this period,the green principle provides green guidance for courts to adjudicate cases,but there are some common problems in the application,which are caused by the deviation from the original intention of the legislation.The first chapter interprets the connotation of the green principle.In the original intention of legislation,the connotation of resources in the green principle should be the sum of natural resources and tangible social resources.In the judicial application,the court also includes intangible social resources,which arbitrarily expands the connotation of resources.This problem distracts the value goal of the green principle,interferes with the normal order of civil activities,and also makes the operation of the green principle more difficult.The fundamental way to solve this problem is to return to the original intention of legislation and clarify the accurate connotation of resources in the green principle.The second chapter analyzes the status of the green principle.The green principle is established as the restrictive basic principle,but when the court applies it,there is the problem that it is only regarded as the advocacy principle and applied declaratively.This problem is common,which is harmful to the effectiveness of the judicial application of the green principle.The fundamental way to solve this problem is to return to the original intention of legislation and recognize the green principle as a restrictive principle with compulsory effect in judicial application.The third chapter discusses the basic function of the green principle.The legislation presupposes four basic functions of the green principle:saving resources and protecting ecological environment,promoting the development of green economy,communicating civil law with constitution and environment law,and strengthening citizens’ green consciousness.However,there are many cases of vague application and wrong application,which are not conducive to the basic function of the green principle.The fundamental way to solve this problem is to return to the original intention of legislation.The fourth chapter analyzes the applicable conditions of the green principle.In legislation,the application of the green principle must be based on the failure of rules in civil law and fully reasoning.But in the judicial application,the court escapes to the green principle and does not fully reason,both of which are ignoring the conditions for the application of the green principle.To solve this problem,we need to find the answer from the original intention of legislation,and strictly take the failure of rules in civil law as the premise and strengthen reasoning.The fifth chapter discusses the applicable fields of the green principle.In legislation,the green principle can be applied in all civil fields.However,from the current situation,the green principle is still applied in a narrow field.The court should follow the legislative thinking of the green principle and apply it prudently and prospectively to broaden the application of the green principle.