The Codification Of Environmental Law

With the rapid development of economy in China, the conflict between environment and development is becoming more and more seriously, the Government hopes to protect the environment by a comprehensive environmental law regime. At present, the system of environmental law include nine acts on environmental protection and fifteen acts on natural resource protection, which constitute an initial legal regime of environmental protection. But the major environment law, the Environmental Protection Act, was promulgated in 1989 and is not sufficient for current needs for environmental protection. There are different proposals on how to revise this law and how to define it in the legal regime. These proposals lead to a profound inquiry into how China should construct it environmental law system. Codification of environmental law is suggested by this paper as one of the choices, if not the best, in an effort to supplement current academic discussions and contribute to China's construction of environment law.In Chapter 1, background and aims of this paper are introduced, together with academic researches on foreign countries'codification of environment laws, to point out the necessity to study the codification of environment law in China. Means of study adopted in this paper, including historical analysis, comparative analysis and demonstrative analysis are explained in Chapter 1.In Chapter 2, theoretic background of codification of environment law is discussed under the civil law system. Discussion in this regard starts from Bentham's illustration on codification and .a definition of codification is given by this paper as a structural construction to assort rules with principles, which is aimed at internal unification. Prerequisites of codification are then investigated. Three conditions must exist in a legal system for codification to occur: that written law is generally regarded favorably as a means of ordering society; that the top political authority is strong to impose a code. That is, the lawmaking power within the political unit is not so divided among competing players as to make it impossible to promulgate a comprehensive set of laws applicable to the entire political unit; the top authority has a strong enough desire to impose a code that it is prepared to champion the cause.Assuming these three necessary conditions for codification are present, several key contributing factors further augur in favor of codification. Not all of these five factots need to be present, but as more of them become present, codification becomes more likely: the existing law is chaotic or difficult to ascertain; the existing law is inconsistent with radical political changes that have just occurred; the existing law is behind the times generally; a"model"code from an earlier time is available and is culturally relevant to the people of the political unit; legal scholars and jurists play a highly important or influential role in the legal system.Following the movement of decodification and recodification in the 1970s, people has become more rational toward codification, which continues to play an important role in the civil law system. Core concern of codification is to systemize relevant laws and it suits environment law regime since it covers a variety of social aspects.Practical basis of environment laws'codification is investigated in Chapter 3. Disadvantages of single acts of environmental protection are enumerated in this chapter, including the lack of internal accordance and guiding rationale, as well as the overlapping and conflict between rules and institutions. Along-with the shift of rationale from terminal administration to sustainable development, single acts need to be systemized and reshuffled to protect the environment as a whole, which leads to three types of environment law regime: basic law plus single acts; comprehensive law plus single acts; and environment codes. Basic environment laws of the US, Japan and Taiwan, and comprehensive environment laws of Canada, Netherlands, and New Zealand are studied in the chapter to discuss their characteristics and functions. Chapter 4 focuses on the realistic exhibition of environment codes, especially on EU's codification tide in the 1990s and its implication to China's mode choice in environmental protection legislation. This codification tide is believed to be based on the rationale of sustainable development. Different types of codification, such as those of Germany, Sweden and France are also discussed to probe into the importance and effects of codification.China's road map for environmental legislation, namely, its history, its shortcomings, and the contemporary demand for a new environmental law regime, is discussed in Chapter 5. Appeals for a new epoch code to best meet the demand of circulative economy and energy sources consumption under the global greenhouse effects are becoming realistic; and it is widely accepted that circulative economy laws and energy sources laws shall be included in environmental law which traditionally covers only anti-pollution and natural resources protection laws. Conditions of China's environmental law are believed to be well-founded now, though barriers are still present.Structure and contents of the environmental code of China is proposed in Chapter 6 as the conclusion of this paper, which argues that the current Environmental Law may serve as the Code's general rules to stipulate on the key definitions, principles, basic policies and major institutions, responsibilities of concerned parties, including government organs, enterprises and citizens, dispute resolution and remedies. Four chapters are proposed to be included in the Code, namely, anti-pollution, nature protection, circulative economy and energy sources.