大气污染防治法的法律模式探析——从不法惩罚到环境质量目标

The Mode Analysis of Law on the Prevention and Control of Atmospheric Pollution: From the Illegal Punishment to Environmental Quality Objective

法律的效能取决于其法律设置是否契合于自身的法律目标。自诞生至数次修订,我国制定《中华人民共和国大气污染防治法》的法律目标一直是良好的大气环境质量。在法律模式设置上,该大气法承继了传统的不法惩罚模式。然而,在大气法律关系中,政府与个人容易以"惩罚不法"交易"非法行为";并且,即使所有个体都守法行为,依然不一定能实现高质量的大气环境质量这一结果。因此,不法惩罚模式并不适合大气法,应当以更为合适的环境质量目标模式进行代替。环境质量目标模式是赋予地方政府以具体的大气环境目标,而将个体行为的规则设置与具体调控交由地方政府实施。环境质量目标模式消灭了义务人与执法者"交易"的空间,在个体行为调控上更为有效与科学,并且在现有的环境法律设置中已有雏形。所以,应当从大气法的法律理念、法律设置与政府责任等多方面贯彻环境质量目标模式。

The effectiveness of law depends on whether the law setting fits in its own lawful objectives. From its birth to several revisions, the objective of the Law on the Prevention and Control of Atmospheric Pollution in P. R. China （abbreviated as the Atmospheric Law in this paper later on） has always been fine atmospheric environment quality. On the law mode setting, the Atmospheric Law still inherited the traditional mode of ＂illegal punishment＂. However, in the relationship of the Atmospheric Law, it is easy for the government and people to use ＂punish illegal＂ to trade with ＂illegal behavior ＂ Moreover, the result of high quality of atmospheric environment cannot be achieved even if all individuals abide the law. Hence, the mode of ＂ illegal punishment＂ is not suitable for the Atmospheric Law, and should be replaced with the more suitable environmental quality objective mode. With the environmental quality objective mode, local government is endowed with specific atmospheric environmental goals, which let the local government to set the rules of individual behavior and implement the specific regulations. By environmental quality objective mode the space of ＂ deal＂ between obligor and law enforcers is eliminated, it is more effective and scientific in the regulation of individual behavior, and there has been a prototype in the setup of existing environmental laws. Therefore, the environmental quality objective mode should be implemented from the varied aspects of law concept, law settings and the governmental responsibility, etc in the Atmospheric Law.