排污权法律属性研究

On the Emission Rights

排污权物权化希望通过找寻母权所有权方式来论证排污权物权血统却颠覆了母权与子权关系,动摇了大陆物权制度所有权为核心的根基。它通过环境容量这一环境科学术语而搭建的美丽理论大厦也因大气环境容量资源的特殊情势和实践中采用具有可操作性法律概念而黯然失色。作为治理污染的战略措施,现有各国法律没有明确或回避排污权财产权的法律性质,但在行政许可领域之内认其排它性、可交易性等若干财产权特征。新财产理论的提出使人们重新审视排污权法律性质:第一,它有财产利益的合理内核和行政许可的外在属性,跨越了公权和私权领域;第二,排污权的保护除了防止公权力的不当侵害外,政府公平进行排污权的初始分配也是重要内容。

The transformation of emission rights to real right attempts to prove the real right of emission right by searching for means of ownership of matriarchal rights, but it actually subverted the relationship between matriarchal rights and son＇s rights, and wavers the foundation of property system in civil law, which regards the ownership as the very core. Its charming theoretical building based on environmental capacity, one term in environmental science, became eclipsed because of the special condition of air environment capacity resources and the application of other more workable law concepts in reality. As a strategic means to control pollution, the existing laws of various countries neither make clear nor shun the legal property of property right of emission rights, but approve its property right characteristics within administrative permission, such as exclusiveness and exchangeability. The putting forward of new property theories make people reconsider the legal feature of dumping rights： first, it owns the reasonable core of property interest and the exterior property of administrative permission, and bridges over the fields of public powers and private rights; second, to protect emission rights, we need to prevent the improper invasion of public rights, and also important is a fair initial allocation of emission rights by the government.