生态文明立法下保护地役权的现状及规范构造

Current Status and Normative Construction of Conservation Easement Under Ecological Civilization Legislation

保护地役权由国外经验引入,在国家公园试点中逐渐成为兼具本土化探索的新兴土地权属管理制度。但基于公私属性争论,保护地役权的规范路径存在众多争论,尚未在我国法律体系中正式确立。考虑到国家公园正式设立以及自然保护地体系的建立,保护地役权制度应尽快于法有据。基于此,通过分析保护地役权制度属性,对比民法与环境法两条入法路径,结合生态文明立法进程探讨保护地役权规范构造的更优选择。分析得出在环境法中另起炉灶路径较为适宜,建议在先行出台的《国家公园法》中设定具体规则,后考虑在《自然保护地法》与《生态环境法典》中予以原则性纳入,最后将细化规定空间留给专类保护地法。

Conservation easements have been introduced based on foreign experience,and have gradually become an emerging land property management system with localization exploration for the national park pilots.However,based on the public⁃private property argument,there are many controversies over the regulation path of conservation easements,which have not yet been formally defined in China's legal system.In view of the formal establishment of national parks and the establishment of the natural protected area system,the conservation easement system should be established in law as soon as possible.Through analyzing the properties of the conservation easement system,comparing the legalization paths of civil law and environmental law,and combining the legislative process of ecological civilization,a better choice for the normative construction of the conservation easement was explored in this paper.The analysis concluded that it was more appropriate to search a separate path in environmental law.It is suggested that specific rules should be set in the National Parks Law of the People's Republic of China to be issued first,and then consider incorporating them in principle into the Nature Reserve Law of the People's Republic of China and the Environmental Code of the People's Republic of China,and finally leave the space for detailed regulations to the specializedconservation land law.