The Legislation Of The Trading Market Of Carbon Emission Right In China

Confronting with the climatic fluctuations, the trading of the right of carbon emission has become a good attempt at solving the environmental problems by comprehensive application of economic and legal ways. It is to achieve the optimal disposition of environmental capacity resources through the cooperation between administrative intervention and market mechanism.Although our government does not have the obligation to compel to reduce carbon emission, it also needs to establish the trade of carbon emission to control it, as well as accumulate experience for future international trade of carbon emission; because the emission of greenhouse gases grows fast and it has put much pressure on environmental protect in our country. It all down to slow down the environmental worsening and realize the sustainable development.Economic activity generates environmental problems, so environmental protect must be incorporated into the economic decisions, the responsibility of it must be incorporated into duty of economic departments. It needs to be regulated and conducted by the law. Though the pilot points of traditional trade of emission right has constructed for more than one decade, there has not presented an overall summary of it or legislate it, and the specific standard of the operation has been insufficiency. As one of emission rights, the right of carbon emission requires a higher standard of the rules of market for it could be an"international production". Only perfected the construction of relative rules, the trade in national and international market could be ensured to accomplish successfully.In the first part, this paper describes the right of carbon emission briefly. This author analyses the right of carbon emission from several aspects: definition, kinds of trade, trading mechanism and its legal nature, and holds that the right of carbon emission has the nature of usufructuary right as a kind of"right of use of environmental capacity". This kind of right of"use"unites public rights and private rights, because it needs to be certified, distributed and controlled by the government using administrative measures. Therefore, the trading of the right of carbon emission has the same nature.The second part of this paper introduces the theoretical basis of legal regulation on the trading market of the right of carbon emission. According to economic theories, Externality theory and The Tragedy of Commons presents the necessity of defining the property of the right of carbon emission; coase theorem provides the theoretical basis of its market transaction. But it is insufficient that only depends on the market to solve the external problems of environment. Some ideas in the economic jurisprudence provide the guiding principles for establishing legal standards in this area, such as material equity, the benefit of the society, state appropriate intervention, and economic security. At the same time, as a new branch of science of banking, environmental financial theory also brings forward the need to establish the relevant legal system.The third part of this paper discovers the problems of the exited legal system after summarizing the present state of the legislation of the trade of the right of carbon emission. With years of absorbing and referring the foreign experience in legislation, law enforcement and judicature, the legal framework of the basis of the trade of the right of emission had already completed. But there still exist many problems await to be solved, such as determination of the right of carbon emission, ways to control it, the same standard for trading rules, relevant legal system of the market of financial derivative trading, the definition of the boundary between administrative regulation and market mechanism regulation.According to the first three parts, the forth part of this paper put forward some pointed suggestions on perfecting the construction of the legal system of the market of carbon emission trading; including improving the determination system of carbon emission, improving the trading regulation system by establishing perfect government regulation system, strengthening the self-discipline in trade association and bourse. This will make the trade of the right of carbon emission have the law to obey, thus will promote the construction and well-function of trade market.