Study On The Judicial Application Of The Green Principle In The Civil Code Of The People’s Republic Of China

In order to achieve sustainable development,China’s Civil Code has established the green principle.In terms of its nature,the green principle belongs to both general clauses and restrictive principles.The green principle not only has the function of guiding legislation,but also has the function of judgment.Since the implementation of the Civil Code,there has been an increasing number of cases where the green principle has been applied as the basis for judgment.Among the 164 judicial documents sorted out and selected,the green principle is not only widely applicable to traditional civil law,but also to criminal incidental civil,environmental civil public interest litigation,and civil enforcement.According to the existing paths for courts to apply the green principle and the theory of categorization,the application paths of the green principle can be divided into four types: "loophole supplementation","normative interpretation","normative amendment",and "normative selection".In judicial practice,there are no typical cases where the loopholes in the green principle are supplemented and applied;The path of standardized interpretation only lists the green principle clauses in the reason section of the judgment,but does not apply the green principle to explain the rules,only serves as a value declaration or makes the case facts conform to the applicable requirements of a certain rule through the application of the green principle;Standardize the path of revision,apply the green principle to exclude the legal consequences of specific civil rights exercise,delay the exercise of rights,limit the way of liability assumption,or limit the changes in substantive rights and obligations;Standardize the selection path by introducing the green principle to select the most applicable and optimal norm,in order to make relatively appropriate case judgments.Courts in various regions have encountered many problems when applying the green principle: a deviation in understanding the connotations of "resources" and "ecological environment",whether the ecological environment includes living environment,and whether resources include property resources and social resources;The green principle limits the scale of private rights to a large extent,resulting in infringement of civil subject rights and excessive imposition of obligations;Escaping from the general terms and not citing relevant legal provisions in the reasoning section,and without any trace of the legal basis for the judgment,the judgment is directly based on the green principle;The judgment states that the theoretical evidence is insufficient,which does not comply with the setting of the burden of proof and the emphasis on the principle of inertia.These normative or factual dilemmas effectively hinder the judicial application of the green principle and affect the realization of the legislative purpose of this provision.In view of this,China should combine judicial practice to address the above issues and improve the judicial application mechanism of the green principle as soon as possible.Accurately understanding the connotation of the green principle,"resources" should be clearly defined based on the type of resources and specific fields,and "environment" should be interpreted in a broad sense,including the concept of protecting nature,economy,society,and other factors.Introduce the principle of proportionality,apply the principles of appropriateness,necessity,and narrow proportionality to achieve the optimal measure plan,in order to grasp the green principle and limit the scale of private rights.Accurately identify civil legal norms,clarify the basis of claim rights,and exclude the direct application of green principles.Clarify the interpretation obligations of judges,and divide them into four levels of strict,high-level,intermediate,and low-level interpretation obligations based on the green principle judicial application path.