可再生能源优先权的法律构造——基于“弃风限光”现象的分析

Legal Construction of the Priority Right of Renewable Power——A Logical Analysis Based on the Recently Abandoned Renewable Power Phenomenon

近期各地"弃风限光"的现象,虽有悖可再生能源优先发展的原则,但从严格法律意义上讲存在一定合法性依据。除从技术上应对外,我国应以优先并网权为核心明确可再生能源优先权的法律地位,将其构造为可再生能源发电企业对相关行政主体的请求权,并使之成为一项可获得司法救济的权利;同时,明确可再生能源发电企业与电网企业之间及电网企业与相关行政主体之间的权利义务关系,避免任意的"弃风限光"行为。我国应进一步将优先规划等内容纳入可再生能源优先权的范围,并探讨建立优先权转让的法律框架。

The recent phenomenon that wind and solar power were limited or abandoned in several areas has its solid legal basis if judged from strict analysis, although it is contrary to the principle of priority of renewable energy development. The law and regulations of China should clearly accord renewable power enterprises the priority right to the grid according to the principle of the right of claim, and assure that the priority right of renewable power is a right that can obtain judicial relief if infringed. At the same time, the right and obligation relationship between the renewable enterprises and the grid enterprises, and that between the grid enterprises and the relevant administrative subjects should be concretely defined to avoid the grid and governments ＇‘ arbitrary ＇ behavior. In the long run, development plan and right transfer could be put into the scope of the priority of the renewable power.