论自愿环境协议中行政优益权的规制--以比例原则为视角

On the Regulation of Administrative Priority in Voluntary Environmental Agreements--From the Perspective of the Principle of Proportionality

自愿环境协议在法律性质上属于环境行政合同,与一般的行政合同相比,其又具有明显的特殊性。对于自愿环境协议,政府相对于企业享有行政优益权,但若对这种权力不能加以规范和控制,将会损害企业的合法权益,亦有违自愿环境协议订立的初衷。运用比例原则对政府行政优益权的具体行使进行约束,是行之有效的治理方式。比例原则的三项子原则从各自的角度分别对自愿环境协议中行政优益权的行使进行规制,既有差异性亦相互融合,能够最大限度地实现政府公权力与企业私权利的平衡,使公共利益与私人利益都尽可能地得到保障。

Voluntary environmental agreement belongs to environmental administrative contract in legal nature, but it has obvious particularity. The government inevitably enjoy the administrative priority in the voluntary environmental agreement. If this kind of power cannot be regulated and controlled, it will damage the legitimate rights and interests of enterprises, and then violate the original intention of the voluntary environmental agreements. It is an effective way to restrict the exercise of the governments administrative priority using the principle of proportionality. The three sub principles of the principle of proportionality regulate the administrative priority in voluntary environmental agreements from their respective perspectives, which is not only different but also integrated with each other. They can maximize the balance between the public power of the government and the rights of enterprises, and ensure the public and private interests as much as possible.