An Empirical Study On The Judicial Application Of The Green Principle In Contract Disputes

After the "green principle" became a basic principle of civil law,the judicial application of the green principle has become one of the more common situations nowadays.Among the judicial applications of the Green Principle in civil disputes,contractual disputes topped the list of judicial applications.A statistical analysis of152 sample cases in which the green principle was applied to adjudicate in contract disputes in the past five years has clarified the time and space,trial level,cause of action,mode of adjudication,type of application and the status of the principle in the basis of adjudication,revealing two typical modes and five substantive types of application of the green principle in judicial practice in contract disputes.In judicial practice,"can be handled according to existing rules-rule proof model" and "rule loophole-principle proof model" are the two most common models.In specific cases,the green principle plays five substantive roles,such as negating the validity of the contract,influencing the performance of the contract,judging the assumption of liability for breach of contract,influencing the termination of the contract,and influencing the way of bearing civil liability.There are three focal issues in the judicial application of the green principle in contract disputes:Whether "resources" are limited to "natural resources",whether the green principle can be directly used as a basis for adjudication,and whether the green principle can be used for public law judgments.On the issue of the scope of "resources","saving resources" in this article is subordinate,"protecting the ecological environment" is the fundamental purpose,and the green principle does not have dual orientation.All social resources and some material resources that do not have environmental protection orientation are excluded through negative demonstration,and the material resources with environmental protection significance such as the natural resources retained after screening and the material resources processed from natural resources belong to the applicable scope of green principle;On the issue of whether the green principle can be directly used as a basis for adjudication,the lack of specific rules for the appropriate cases is a prerequisite for the direct application of the green principle.The judicial application of the green principle should be guided by the "prohibition of escape to the general provisions".Based on the relationship between specific legal rules and green principles in individual cases,the judicial application path of green principles is clarified in accordance with the "one divided into four" approach,including the value guidance function of green principles when the rules are clear,the function of explaining specific rules when the rules are contradictory,the value selection function of green principles when the rules conflict,and the value selection function of green principles when the rules are missing;On the question of whether the Green Principles can be used in public law judgements,the green principle adjusts the civil activities that civil subjects engage in,its essence is to add the consideration factor of green principle in the confrontation of traditional civil rights and interests within civil law,and is based on the inherent boundary of "rights and obligations" in civil law.The green principle cannot be used to evaluate matters of public law,as the boundary is shifted from the inherent "rights and obligations" of civil law to the conservation of resources and protection of the environment.In order to improve the accuracy of the judicial application of the green principle,it is recommended that this be achieved through a hierarchy of doctrinal evidence based on the functional attributes and functional perspectives of different jurisprudence.