民法典视域下生态环境损害规定之法理基础

The Legal Basis of Ecological Environment Damage Regulations from the Perspective of Civil Code

为回应生态环境保护时代之需,《民法典》对生态环境损害予以了规定。生态环境损害内含“生态系统的要素或功能的损害,以及人们从环境中获取的良好生活环境利益损害”。《民法典》视域下生态环境损害,以人们的生活环境利益为关注点,具有公私益复合属性。《民法典》是基于何种理论基础将其纳入的,当前学界存在“权利”理论进路与“利益”理论进路之争。分析得知,采“权利”理论进路,对生态环境利益进行权利化改造纳入民法体系,无法消弭生态环境利益具有的公私益属性同“民事权利本质上是类型化了的私人利益”之间的分歧,亦会滋扰民法体系自身的规范性、融贯性和稳定性;采“利益”理论进路纳入生态环境损害,虽解决了权利保护有限性、利益保护生长性和民法体系融贯性,但会带来民法保护利益泛化之嫌。基于法秩序统一原理要求,确立民法法益保护理论,确认生态环境法益,使生态环境损害进入到民法保护和救济的射程内,能割除权利保护理论困境与利益保护理论可能会带来的恣意,亦为未来可能进入《民法典》的其他利益保持开放性提供理论支撑,使中国民法学得以传承、创新、繁荣发展。

In response to the needs of the times for ecological environmental protection,the Civil Code provides for damage to the ecological environment.Ecological and environmental damage consists of“damage to elements or functions of ecosystems,as well as damage to the benefits of good living conditions that people derive from the environment”.Ecological and environmental damage in the context of the Civil Code has a public-private benefit composite attribute,focusing on the environmental interests of people's lives.The theoretical basis for its inclusion in the Civil Code is currently the subject of a debate between the“rights”approach and the“interests”approach.Analysis reveals that adopting the“rights”theory to transform ecological and environmental interests into rights and incorporate them into the civil law system cannot eliminate the discrepancy between the public-private attributes of ecological and environmental interests and the fact that“civil rights are essentially typified private interests”,and it will also jeopardize the normativity,coherence and stability of the civil law system itself;adopting the“interests”theory to incorporate the ecological environmental damages,even though it has solved the problem of limited protection of the rights,growth of protection of the interests,and consistency of civil law system,but it also will result in the suspicion of generalization of the interests of the protection of the civil law.Based on the requirements of the principle of unity of the legal order,the establishment of the theory of the protection of legal interests in civil law,the confirmation of ecological environmental legal interests,and the entry of ecological environmental damages into the range of civil law protection and relief can cut off the dilemma of the theory of the protection of rights and the theory of the protection of interests that may be brought about by the arbitrariness,and also provide the theoretical support for the possibility of entering into the Civil Code to keep the openness of the other interests in the future,so that China's civil jurisprudence can be inherited,innovated,and prosperous development.