“双碳”背景下预防性责任的司法改良与实践进路

Judiciary reform and improvement and practical process of preventive liability in the context of‘dual-carbon’

坚持风险防范是“双碳”工作的重要原则,与预防性责任应对环境风险的价值诉求相契合。碳排放并非污染行为,但可能构成生态破坏,在减污降碳协同治理下,以预防性责任规制碳排放行为具有可能性。近年来,环境司法实践从融入风险预防理念、延伸责任主体、替代修复、先予执行、禁止令等方式对预防性责任进行减排降碳化改良。但也应认识到,“双碳”背景下的环境风险责任与传统预防责任的认定在行为性质、追责主体、因果关系论证程度上均有不一。为契合“双碳”目标的实现,革新涉碳行为触发预防性责任的归责要件,在侧重考量行为违法性、依靠科技归因的同时,降低风险发生可能性的证明标准,变通和扩展预防性责任的适用类型。

Persisting in risk prevention is an important principle of the‘dual-carbon goal’,which is consistent with the value appeal of preventive civil liability to deal with environmental risks.Carbon emissions are not pollution,but may constitute ecological damage.Under the coordinated governance of pollution reduction and carbon reduction,it is possible to regulate carbon emissions with preventive liability.In recent years,environmental judicial practice from the integration of the concept of risk prevention,extension of the responsibility of the main body,alternative repair,prior execution,injunction and other ways of preventive liability for emission reduction and carbon reduction improvement.However,it should also be recognized that the determination of environmental risk responsibility caused by carbon-related factors and the traditional environmental prevention responsibility are different in the nature of the behavior,the subject of accountability,and the degree of causality demonstration.In order to meet the realization of the"dual-carbon"goal,to innovate the elements of attribution of preventive liability triggered by carbon-related acts,focusing on the consideration of the illegality of the act,relying on scientific and technological attribution at the same time,lowering the standard of proof of the likelihood of the occurrence of the risk,and adapting and expanding the type of preventive liability applicable.