论环境标准的法律地位——对主流观点的反思与补充

Studies on Legal Status of Environmental Standard

环境标准不同于环境标准法律规范,也不同于环境标准法律制度,从形式上看,它无构成法律规范所需的完整结构,也无独立的法律效力,故其属性只可属于行政规范性文件,而不应归于环境法的渊源,但环境标准可经法律规范的援引而成为构成该规范的"条件假设"或"行为模式"的组成部分,从而才被赋予相应的法律效力和法律意义。在裁判实践中,环境标准可作为判断环境行为违法与否的法律事实——"超标"或"达标"的依据,但不能单独作为环境行为是否违法的判断准则,违法与否还必须结合相关法律规范的具体规定才能做出正确判断,即达标不一定合法,超标也并不必然违法。

Environment standard should he a kind of documents of administrative norms,hut not independent origin of environmental law.However,environment standard may he quoted as ＂the condition supposition＂ or ＂the behavior pattern＂ ,which are the essential factors to constitute the legal norm,thus the environment standard quoted can be entrusted with the legal effect and the legal significance accordingly.Only the united system composing of environment standards and legal norms about environment standards can become one component of the environment law system.Certainly,the environment standard may be quoted by the judge as case facts-- whether the environment behavior has exceed the allowed limits of the environment standard or not,however,we can not judge that certain environment behavior is illegal or legal only by environment standard. To make the correct judgment,we should consult the specific contents stipulated by the environment standard and the legal norm which has quoted it.In a word,it is wrong to say that the environment behavior conforming to the environment standard will be definitely legal and the environment behavior exceeding the limit of the environment standard will he inevitably illegal.