论碳排放权设质依据及立法建议

Pledge on Carbon Emission Right and Legislative Suggestions

碳排放权是在碳排放额度上设立的一项新型无形财产权。因其具有交换价值,故能设立担保。物权法定原则的缓和化扫除了设定碳排放权担保的理论障碍。碳排放权的特性和权利质权的构造决定了在碳排放权上设定权利质权比设定抵押权更为适宜。建议立法者在设立碳排放权质权时,采用登记生效模式。与其他权利质权相比,碳排放权质权更易受政策影响,故体现的物上代位性较弱。因此,质权人宜选择其他保全碳排放权质权的方式。

Carbon emission right is a brand new intangible property right based on the carbon emission quota allocated by the government. Its exchange value accounts for its security interest as collateral of pledge. Besides, the moderation of the Numerus Clausus principle has made the establishment of such collateral of pledge theoretically sound. Comparatively speaking , setting pledge on carbon emission right is more suitable than the mortgage right due to the features of carbon emission right and the structure of the pledge right. It is suggested that the model of registration effectiveness should be adopted by legislation in setting pledge on car- bon emission right. Compared with other pledges on rights, pledge on carbon emission right is more vulnerable to the governmental policies, and the subrogation effect is rather limited. Therefore, the pledgee should also rely on alternative solutions to preserve the pledge on carbon emission right.