中国人口·资源与环境2025，Vol.35Issue(11)：73-81,9.DOI:10.12062/cpre.20250634
生态环境修复责任中认购碳汇的裁判基准
Judgement benchmarks for carbon sink subscriptions in ecological environment restoration liability
摘要
Abstract
Carbon sink subscriptions as a way of assuming responsibility face dilemmas,such as generalization of the scope of applica-tion,confusion in the order of application,uncertainty in the assessment criteria,and unclear subscription procedures,which have led to ambiguity and chaos in judgement benchmarks in judicial practice.The deeper reason for these dilemmas lies in the lack of clarity re-garding the legal nature of carbon sink subscriptions at the theoretical level.Academics and practitioners debate on three perspectives:the carbon sink compensation approach,the alternative restoration approach,and the alternative fulfillment of compensation liability ap-proach.The core of ecological environment restoration liability is restoration,and the legal nature of carbon sink subscriptions should be an alternative restoration approach.Article 1235 of the Civil Code of the People's Republic of China is aimed at the recovery of the restoration costs rather than the compensation for losses.To meet the requirement of alternative restoration approaches that the replace-ment element or service function should be of equal value to the damaged ecological environment,the scope of application of carbon sink subscriptions should be limited to areas where there is direct loss of carbon sinks.Currently,"restoration"in ecological environ-ment restoration liability is divided into two major restoration methods,namely,direct restoration and alternative restoration,encompass-ing three restoration stages,namely,primary restoration,complementary restoration,and compensatory restoration,as well as four resto-ration modes,namely,in-situ homogeneous,ectopic homogeneous,in-situ heterogeneous,and ectopic heterogeneous.Carbon sink sub-scriptions should be identified in such a system in order to clarify the specific order of application.In other words,carbon sink subscrip-tions are only applicable when the time required for primary or complementary restoration is greater than one year and thus requires en-try into the compensatory restoration stage,or when neither ectopic homogeneous nor in-situ heterogeneous restoration modes are feasi-ble during the complementary restoration stage.Thereafter,the court should review the restoration program or alternative restoration pro-gram to ensure that parties subscribed to an appropriate proportion of carbon sinks,both to ensure that the subscribed carbon sinks cal-culated through carbon sink accounting are sufficient to cover the damages and to avoid situations in which parties voluntarily"over-subscribe"to situations that would significantly increase their burden.After review,the subscription procedure should be standardized,i.e.,the subscription project should be a certified carbon sink project,the carbon sinks subscribed on their own should be cancelled,and the method of direct payment of the carbon sink subscriptions to the special account for the creation of carbon sink forests should only be used in special circumstances,such as when no suitable carbon sink projects exist within the administrative region or the same ecological region.关键词
生态环境/修复责任/认购碳汇/替代性修复/裁判基准/比例原则Key words
ecological environment/restoration liability/carbon sink subscription/alternative restoration/judgement benchmark/prin-ciple of proportionality分类
社会科学引用本文复制引用
高利红,邓顺萍..生态环境修复责任中认购碳汇的裁判基准[J].中国人口·资源与环境,2025,35(11):73-81,9.基金项目
国家社会科学基金一般项目"金钱类环境责任的序位与衔接研究"(批准号:21BFX132). （批准号:21BFX132）
