河海大学学报（哲学社会科学版）2025，Vol.27Issue(1)：52-62,11.DOI:10.3876/j.issn.1671-4970.2025.01.006
论碳排放权的公法属性
On the Public Law Attribute of Carbon Emission Right
摘要
Abstract
Regarding the legal nature of carbon emission rights,the mainstream view in the academic community is to define them as(quasi)property rights or usufruct rights in civil law.This view tries to include carbon emission right into the category of traditional property right.However,it still cannot avoid the challenge of the question of the moral hazard of privatizing public resources,the inadequacy of atmospheric environmental capacity as the object of real right,and the lack of carbon emission right basis.Therefore,the research perspective must be changed.In terms of legal nature,carbon emission right is actually a right in public law.In terms of constitution,the"national target clause"of environmental protection in the Constitution provides a constitutional normative basis for carbon emission rights.The carbon emission right has the aspect of national protection obligation.The carbon emission right system is actually a system created by the state based on the"national target clause"of environmental protection,and at present,it is carried out by The State Council or the Ministry of Ecology and Environment as an administrative organ.In terms of administrative law,the definition of carbon emission rights as concessions in administrative licensing law has a theoretical and normative basis.It not only conforms to the legal characteristics of carbon emission rights,but also helps to realize the whole process regulation of carbon emission rights from establishment to trading,so as to ensure the realization of national environmental protection goals.As an administrative regulation,the Interim Regulations on the Administration of Carbon Emission Trading formulated by The State Council may also set the permit.Of course,as a system directly related to the rights and interests of carbon emission subjects,the allocation of carbon emission quotas should endeavor to achieve distributive justice,while the trading of carbon emission rights should endeavor to achieve corrective justice.As for the tradability of carbon emission rights,its normative basis lies in the provisions of Article 9 of the Administrative Permit Law.关键词
碳排放权/环境权/行政许可/法律性质Key words
carbon emission right/environmental right/administrative license/legal nature引用本文复制引用
李剑..论碳排放权的公法属性[J].河海大学学报（哲学社会科学版）,2025,27(1):52-62,11.基金项目
国家社会科学基金一般项目(21BFX047) （21BFX047）
