The Conflict and Coordination of Legal Interests in the Judicial Application of the Green Principle in the Civil Code of the People’s Republic of China

Abstract

As a restrictive principle of protecting the environmental public welfare, the Green Principle is enshrined in the Civil Code of the People’ s Republic of China, which remedies the lack of obligation norms for persons of the civil law to engage in civil activities to protect the ecological environment. However, in judicial application, the conflict between the environmental public welfare and private rights and interests such as real rights, creditor’ s claims and the right to inheritance is often formed. The theoretical root of the conflict is the inherent structural tension between the functional orientation of the Green Principle and the function of private law principles. The practical cause is that some judicial adjudicators mistakenly protect individual environmental elements contained in private rights and interests as the environmental public welfare. The identification and definition of the environmental public welfare and the discovery of genuine environmental public welfare constitute a necessary prerequisite for coordinating the conflict of legal interests. To coordinate the conflict between the environmental public welfare and private rights and interests, it is necessary to use the principle of proportionality, so that the environmental public welfare should be reviewed for appropriateness, necessity and balancing when restricting private rights and interests. When private rights and interests give way to the environmental public welfare under legal circumstances, the loss of private rights and interests should be appropriately compensated; regarding the compensation for the loss of private rights and interests, not only should the conditions required for compensation be stipulated, but also a reasonable compensation standard should be determined.

Keywords

Green Principle / environmental public welfare / principle of proportionality / benefit compensation

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Higher Education Press