| The heavy smog occurring throughout China in recent years has raised Chinese government and people's concern about air pollution and climate change, of which the “chief culprit” is energy consumption. On the condition that energy supply has become severe and ecological environment has been worsening, high-carbon development model, relying on traditional fossil energy such as coal and petroleum, is very inappropriate. Therefore, it is imperative for energy consumption from high-carbon to low-carbon. Energy, as a sort of strategic commodity, is economical and strategic. A successful low-carbon transition of energy is key to the economic and social sustainable development in China, and whether the transition can be successful greatly depends on the Institutions design. Low-carbon transition of energy, as an important strategy in energy field, which includes innovation of energy technology, financial arrangements for low-carbon energy, construction of low-carbon market, international mechanism guide and so on, can only be implemented through concrete and perfect strategic arrangements. Consequently, a successful transition to some extent signifies the effects of the design and carrying out of low-carbon energy legal institutions. As the most important institutions in social governance and public management, law can safeguard the low-carbon transition of energy.As for researches on the legal institutions of low-carbon transition of energy, which not only benefit the integration and intercrossing of energy-related courses, but also enrich relevant researches, solve energy and environment problems, provide reference for the government to promote the transition, and provide advice for enacting laws and normative documents about energy and climate change, especially for drafting basic statue such as Energy Act and Actions Addressing Climate Change, and issuing other relevant normative documents.There's a huge amount of literature on low-carbon transition of energy at home and abroad. Therefore, this thesis aims at making contributions to the promotion of energy system from the perspective of law. On this basis, this thesis mainly makes researches on the basic theory of the legal institutions of low-carbon transition of energy, the performance management mechanism of energy transition, the mechanism of low-carbon technology promotion, the incentive mechanism of fund for low-carbon transition of energy, the market regulation mechanism of low-carbon energy, the construction of cooperative mechanism in which China takes part in low-carbon international cooperation and so on. In the process of being written, the thesis focuses on law and social change theories, emphasizes that legal system can push social change. It adopts literature study, laws interpretation, comparison, law economics and law sociology to analyze the legal system of low-carbon transition of energy.The thesis is general-divided, the first part being the pandect and platform, mainly dealing with the basic theory of the legal institutions of low-carbon transition of energy and the second to the sixth parts being sub-pandects, improving energy legal institutions from different parts of low-carbon transition mechanism of energy, hoping to form institution resultant force and push the process of energy transition.The first part is the basic theory of the whole thesis. It analyzes the value and core content of the legal institutions of low-carbon transition of energy and its affects to promoting energy transition, and sum up the basic theories applied in the thesis through discussing about the connotations of low-carbon transition of energy.“Low-carbon” is not only an energy issue in China, but also a development one. “Low-carbon transition of energy” in China means a transition from extensive to intensive development, from economy-oriented to environment-friendly development. Meanwhile, it also means a path of sustainable energy development and a process of social transformation aiming at seeking for changes, innovations and progresses.Energy and environmental security is the goal of China's legal institutions of low-carbon transition of energy. The attributes of strategy of energy and the characteristics of Chinese energy determine the significance of energy security. In spite of the fact that there is abundant energy and a huge amount of coal in China, the per capita occupying amount of energy is small, the energy and resources are not distributed equally and are hard to exploit, the energy structure is unreasonable, all of which bring huge challenge to the energy supply. In addition, the increasingly severe pollution and climate change have become a problem of “security”, with environmental and ecological security becoming an important part in Chinese security system. At the policy level, China has been aware of the bad effects of coal-oriented energy structure and has begun to adjust the structure. However, there is still room for improvement in the design of specific low-carbon legal system. The designers' intention and idea determine the value and effect of the legal system. Therefore, energy security and environmental security must become the value pursuit of the current legal system of low-carbon transition of energy.Social change causes cognition, which can be transformed into concept in the process of enhancement and push the revolution of legal institutions with the governmental output policy and the related strategies. Legal institutions can in turn influence social change. That the forward-looking and force of energy law determines it is significant to transform energy law into low-carbon one for efficient and clean energy development. Developed countries such as Japan and UK just adopt this way to promote their low-carbon energy development. The current energy law of China has restricted the low-carbon energy revolution. The absence of Energy Act, basic law in the field of energy law, directly leads to the fact that the development of low-carbon energy law comes out of nowhere and the legislations of each field of energy does not link up with each other smoothly, which terribly restricts the carrying out of energy law. To promote the development of low-carbon energy successfully, the bottlenecks in law must be broken. In China that advocates ruling the country by law, the evolution of energy law must be based on the evolution of energy.The core content of low-carbon transition institutions includes legal mechanisms of technology promotion, financial support, market regulation and performance management of low-carbon transition of energy, and legal mechanism of international low-carbon cooperation. The research of this thesis does not aim at reflecting these regulations through one specific law, but at pointing out the fact that the comprehensiveness of energy demands that energy-related regulations must be issued according to the above transformation paths.In the process of being written, the thesis focuses on law and theories of social change, believing that they are the product of the mingling of legal and social theories, which includes legal and social schools' understanding of the impact of law, and manifests as the important role law plays in pushing social reform held by legal and social scholars. The thesis is based on the opinion that law pushes social reform, and constructs a legal institution of low-carbon transition of energy, intended to realize the transition. The thesis also uses some theories of economics, management science and international politics, such as theories of market failure, state intervention and path dependence, incentive theories, performance management theories and theories of low-carbon transition of energy.Chapter two mainly has a discussion about the legal mechanism of performance management in low-carbon transition of energy, and studies the substantial norms and procedural norms of performance legal mechanism of energy through analyzing the rationality and necessity of being admitted into laws of performance management. Because of the failure of traditional public administration model, performance management was introduced into government public management. Using result-oriented model to measure whether government administration is successful or not means a lot to improving the efficiency. The institutionalization of performance management makes legal institutions measurable, and the assessment and evaluation of legal performance into reality. Developed countries have begun to institutionalize performance management. Performance management mechanism has been an important tool to improve the efficiency of government, as U.S.A, UK and other countries.China has performance management in administration, but there is no specific law. In recent years, there are more and more problems about performance in law. Budget Law of the People's Republic of China amended in 2014 raises a basic requirement for the performance management of the public expenditure of governments and departments, making it the legal basis for the institutionalization of performance management. Other normative documents and regulations of finance ministry refine the above stipulations, making budget performance management operable. However, through investigating the current Chinese energy laws, it can be found there is no specific regulation about energy performance management from the level of law and no law regulating the performance goal, performance indicators and the procedure performance management.The performance management mechanism of low-carbon transition includes substantial norms and procedural norms, the former mainly contains the performance goal and performance indicators, the latter contains specific rules about how to carry out the performance management. The goal of Chinese low-carbon transition of energy determines its direction and process. It demands the quantification of energy law, setting reasonable goal of emission reduction, which must follow the principles of relativity, realizability, and measurability. China has already had a relatively well-developed and open climate goal, which can be admitted into laws after being improved and become the performance goal of Chinese low-carbon transition of energy. After setting the specific performance goal, the relative indicators should be set. The construction of indicator mechanism is highly-technical, the principles of which can be summed up as “SMART”. Furthermore, principles such as comprehensiveness and subjectivity, scientificity and feasibility, public participation, importance, non-repetition, and 3-E(economy, effectiveness and efficiency) should be followed as well. In the thesis, 7 first-class, 39 second-class and 325 third-class indicators are designed, aiming at comprehensively representing the indicator system. Government and functional departments should annually submit performance goal and plan, related performance indicator mechanism attached, which should be reviewed and approved by related functional departments. Functional departments that submit performance plan should report the process annually, the related departments that approved the performance plan should evaluate the achievement in the next year.Chapter three makes researches on the technology promotion mechanism of low-carbon energy, discusses over the influences of development of energy technology on low-carbon transition, points out the barriers in developing energy technology and studies how to promote the progress and advancement of it with the help of institutional incentives.Progress in technology is crucial to low-carbon economy, which can push the low-carbonization from energy efficiency, developmental level of low-carbon technology, management efficiency, energy structure and so on. Nonetheless, economy is the main feature of energy; therefore, the cost of energy utilization determines the development and application of energy technology. The feature of Chinese energy structure forms a technology mechanism oriented at the production and consumption of coal and related technological path dependence. On this basis, though the developing direction and goal are explicit, there are still lots of barriers in developing low-carbon energy technology, for example, the rising cost of technology upgrading caused by “carbon lock-in”, the restrict on low-carbon energy commercial operation caused by the low production efficiency, and the effect of poor electric quality caused by the restriction of natural situations on the commercial application of renewable energy. Problems in the current low-carbon energy technology should be overcome and the motivation mechanism of energy technology should be improved. Especially, China's technology promotion mechanism of low-carbon energy has a series of problems, such as the comprehensiveness rules on energy technology are not sophisticated, the mechanism do not have a systematic and a operable regulations, system coordination of it should be promoted, acquisition and protection of IP right should be followed up.It is inevitable that energy technology transforms from carbon-based to low-carbon. The revolution of energy technology should be promoted by the revolution of its system, breaking the path dependence from technology and system to achieve “carbon unlock”. Firstly, the motivation mechanism of low-carbon energy technology transfer should be perfected, which can be achieved through using system construction to motivate technology trade, attracting foreign direct investment, overseas merger and acquisition, founding strategic alliance of low-carbon technology; secondly, the innovation mechanism of low-carbon technology should be improved, which can be realized through training of the subjects of low-carbon researches and developments, combination of government direct joining with inviting project bidding, formulation of the priorities of development, establishment of strategic alliance of production, study and research; thirdly, the protection mechanism of intellectual property of low-carbon technology must be strengthened, furthering the protection of the rights and interests of the owner or user of low-carbon technology, making it convenient to examine and handle patent application.The fourth chapter chiefly researches on the low-carbon transition of fiscal rules and tax rules. The low-carbon transition of fiscal incentive mechanism mainly provides capital subsidies to subjects of low-carbon transition of energy through positive incentives, which enable enterprises to profit from low-carbon activities. There are some problems in the Chinese energy fiscal incentive system, for example, the fiscal system is imperfect; there is not enough financial support for low-carbon transition; and there is a lack of related supporting systems. Fiscal subsidies matching the transition should move from production to consumption field, from fossil to clean energy, from subsidy to performance data, and from long-term to transitional subsidies. As for the government procurement system of low-carbon transition, it should also be adjusted, such as the development and perfection of list system of energy-saving products, construction of performance evaluation mechanism of the energy efficiency and energy-saving services of the products, and the setting of mechanism of rewards and punishments for the efficiency verification of the products. Moreover, the incentive model should be changed, increasing performance rewards; technological fiscal support should be increased; payment transfer be improved; financial discount be designed, setting a specific fund to support it.Taxes related to energy can negatively limit the use of energy, but the flexibility of tax system determines that China can positively push low-carbon energy consumption through tax breaks and exemption. The modern tax law keeps becoming “ecological”. The resource tax in mining should be reformed to adjust the energy structure; added-value incentives should be improved to promote low-carbon energy development; more articles should be paid for consumption of high-carbon energy products and energy-related enterprises should get some privileges on income tax according to low-carbon activities. From the point of tax incentives for low-carbon transformation, resource tax, consumption tax, income tax and added-value tax can make an important function. From the current theories and practices, though it is still controversial whether carbon tax is reasonable, it is necessary to start levying carbon tax at proper time, which is beneficial for the change of investment direction. The government should be able to use cohesive force to levy carbon tax at proper time and makes it an important incentive for pushing low-carbon transformation.The fifth chapter aims at probing into the construction of market regulation mechanism of low-carbon energy, aiming to be a free, competitive and efficient energy market, it is important to cultivate competitive subjects of energy market, to construct a free and efficient market order and form an effective supervision mechanism of energy market.The energy transition must stir up the adjustment of interests of related groups of energy market. The inner motivation for the successful low-carbon transfition comes from the growth of low-carbon interest groups, which includes encouraging the construction of new low-carbon energy corporations, leading the transformation of traditional energy companies, promoting the development of new energy by deepening the power reform and fostering “micro-subject” of low-carbon energy market. Consequently, it is necessary to arouse enterprises' and entrepreneurs' spirit of innovation using capital and system incentives, and improve low-carbon competitiveness of the whole society with entrepreneurs' spirit of innovation. The cultivation of subjects of low-carbon energy market can encourage traditional high-carbon energy companies to do low-carbon business through market transformation as well. Likewise, other ways such as encouraging people to install small distributed photovoltaic plants individually, in family, or in community to increase subjects of low-carbon energy market.Development of low-carbon energy needs a healthy and competitive market. A low level of marketization will result in a distortion in energy market. The current new energy chiefly reuses the energy with transformation into electricity. Therefore, the obstacles in new energy market can be removed through reforming and opening the power industry. The country has realized that the monopoly of energy market is fatal to energy development; consequently hope to quicken the establishment of energy market and revitalize energy industry. Private capital's going into energy industry drives energy market to turn from monopolic to competitive. The competitiveness of private capital demands the equality and competitiveness of market rules. Competition and low-carbon policies will gradually become the policy view of private capital. To introduce private capital into energy industry, the investment threshold for it should be lowered, the investment rules for it should be perfected, and the limitations on energy investment for it should be loosened. In addition, it is also useful to make use of financial instruments to attract social capital to quickening energy infrastructure, and utilize fiscal fund to encourage and lead the social capital to invest in new energy industry. Since the market cannot play a role in dealing with external problems, the government should change this kind of failure with compelling force and provide public goods the market cannot. An ideal way is to clearly define property rights to “privatize” public resources, which can not only prevent the exhaustion of private property, but also avoid the appearance of “free-rider”. Emission trading is an important scheme in global low-carbon energy market. China is positively exploring and promoting carbon emission trading and planning to begin a trading scheme throughout China in 2017. According to the results of emission trading in seven experimental provinces and cities and the current trading system, China should ameliorate the system and prepare to start a nationwide one.Currently, the organization of energy authorities is unreasonable, the energy management is decentralized, and the control is weak because of a serious multiple management. A “super-ministry system” reformation is not only the need of conventional, traditional energy development, but also the need of low-carbon development. As a result, it is suggested that a department of energy be set up to centralize energy management, with the specific functions and powers being clarified and its functions in supervising energy being strengthened; it should also be noticed that there is a limit in functions and powers between department of energy and other related ones as to energy-related affairs, meanwhile, the coordination should be strengthened, striving for synergy between departments and forming a composite force of system. In case of low-carbon transition evaluation, it should be finished by a independent evaluation agency of energy performance, with the agency releasing the annual energy performance evaluation or the medium-term and long-term energy performance evaluation reports.Chapter six mainly investigates China's participation into the construction of international low-carbon cooperation mechanism. Climate change and environmental pollution are problems all human beings are faced with. No country can avoid or solve the problems alone, which determines that all countries should work together through constructing mechanism and cooperating with each other.The development of human society is actually a process of continuous systematism and institutionalization. International institution is not the only way to handle international affairs, while it is a fundamental and essential one. With the rising of Chinese international political and economical status, China has to join in, affect and even lead the construction of international institutions basing on Chinese national interests. It is beneficial for further increasing the voice of China. Thus, it is necessary for China to check the present global climate governance framework and the problems in it, to lead the setting up of an international low-carbon energy development regime, which serves Chinese interests. United Nations Framework Convention on Climate Change(UNFCCC) issued at United Nations Conference on Environment and Development, which was held in Rio in 1992, is the international law basis of the current governance mechanism of climate change. Kyoto Protocol passed in 2005 was terminable, because of which the international community began to prepare for pushing environmental protection after 2012 in 2007. After a series of climate conferences held respectively in Bali, Copenhagen, Cancun, Doha, Warsaw and Lima, each country had expected to reach a new legally binding agreement at the climate conference in Paris in 2015.The biggest barrier of negotiation on climate governance mechanism lies in how to achieve fair governance. Developed countries are historically responsible for air pollution, while developing countries are increasingly emitting more and more greenhouse gases and their emission is far from the peak. The construction of climate framework actually means the choice of energy consumption model, and also the adjustment of economic development model, which will surely influence a country's growth. Because of this, countries with different energy endowments and different development degrees have different standpoints. Before the Paris negotiations, Umbrella Group, EU, developing countries, Alliance of Small Island States, petroleum exporting countries, and African Group presented different ideas to the Conference of the Parties of UNFCCC according to their different standpoints.At the Paris negotiations, there was a divergence on emission target, climate governance guidelines, implementation of climate fund and enforcement mechanism, while Paris Convention was passed. It embodies the global effort to halt environmental deterioration after realizing the importance of low-carbon development. In spite of its significance, the shortcomings of Paris Convention should also be paid attention to, that is, a lack of compulsory emission target, its being transitional choice of developed countries for shouldering responsibilities, and meaning keeping flexible adjustment of international climate governance mechanism. However, the publicity of official missions and the participation of non-governmental agencies wake up people's low-carbon awareness, supervising the low-carbon development of global economy and the low-carbon transition of energy, making capital market concerns more about investment into clean energy and give more support to renewable electricity.Low-carbon, even zero-carbon, development, will become the mainstream in the future. Combating climate change with international cooperation and mechanism need the international society work hard together. We can advance the development of international cooperation of low-carbon thorough leading the change of international mechanism. Aiming to boost the process of China's energy transition, it is significant to stick to “common but differentiated responsibilities” principle on equal basis, push the setting up and improvement of low-carbon technology transfer mechanism, and gradually perfect the execution mechanism of climate governance with transparent emission reduction system.The last part makes a conclusion of the researches of this thesis and puts forward expectations that China can promote energy transformation through the construction of legal system. |
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