The Study Of Emission Right Mortgage System

The mortgage guarantee of pollution discharge rights is an innovative financing method that helps to reduce the financing risks of enterprise environmental technology transformation,promote the development of the pollution discharge rights market,and advance the construction of ecological civilization.However,there is controversy regarding whether to use mortgage or pledge forms in practice due to the lack of legal clarity surrounding the legal nature of pollution discharge rights.Thus,this article aims to answer questions regarding the forms of guarantee,effective elements,and implementation methods in pollution discharge mortgage guarantees by clarifying the nature of pollution discharge rights and the rules for mortgage loans in different regions.This provides a feasible way for pollution discharge mortgage.Pollution discharge rights have similarities with usufructuary rights,but there are differences in the way rights are created and the objects of the rights.Moreover,since the Civil Code’s Property Law does not provide specific regulations for pollution discharge rights,they are classified as quasi-property rights.Additionally,the pollution discharge rights trading system allows for the transferability of pollution discharge rights,enabling them to be monetized through pollution discharge rights trading.Therefore,pollution discharge rights fall within the scope of property that can be mortgaged under Article 395 and Article 399 of the Civil Code.Currently,there are no laws or administrative regulations stipulating that pollution discharge rights can be pledged.As the pledge form cannot effectively protect the interests of the pledgee,the mortgage form is more suitable for pollution discharge guarantees.In terms of the establishment of emissions rights mortgage,the emission rights mortgage rules in various regions only specify the financial lending between banking and financial institutions and polluting units,limiting the scope of the mortgagor.Therefore,it is necessary to clarify the scope of the mortgagor in conjunction with existing legal resources.In addition,the special attributes of intangibility,term and dual attributes of public and private law of emission rights should also be reflected in the emissions rights mortgage contract.Moreover,emissions rights mortgage should adopt a registration effective principle,which takes effect after being registered by the ecological and environmental department.In terms of the effectiveness of pollution discharge mortgage guarantees,clearer explanations are needed regarding the rights and obligations of the mortgagee and the mortgagor,particularly regarding the priority of compensation and the preservation of the rights of the mortgagee when the value of pollution discharge rights decreases.Local pollution discharge mortgage regulations limit the transfer of pollution discharge rights by the mortgagor.However,Article 406 of the Civil Code allows the mortgagor to transfer the mortgaged property,so the pollution discharge mortgagee should have the right to transfer pollution discharge rights.However,the parties may agree in the mortgage contract not to transfer pollution discharge rights.Regarding the implementation of pollution discharge mortgage guarantees,because pollution discharge rights can only be held by enterprises with pollution discharge permits,and mortgagees usually lack such qualifications,discounting is not suitable.However,auctions and sales can be used to achieve mortgage guarantees,with the principle of auction priority being adhered to.With the consent of the parties,the method of sale can also be applied.In practice,there is also a government buyback option for pollution discharge rights.However,due to the lack of a clear system,the government buyback method may be regarded as a guarantee.Therefore,after clarifying its public service attributes and perfecting the application process,buyback subject,conditions,and funds,the government buyback method can also serve as a way of implementing pollution discharge rights.