Research On Carbon Emission Rights From The Perspective Of Civil Law

Carbon emission right is a new type of right under the international legal system to cope with climate change that takes United Nations Framework Convention on climate change and Kyoto Protocol as its core. From a legal point of view, it is more proper to define it as a kind of atmospheric environmental capacity right. It is a right that to make further advances, enterprises and other holders of rights discharge a certain amount of greenhouse gases to the environment of atmospheric environmental capacity based on legal provisions and administrative license. The international legislation of carbon emission rights can be divided into specific international treaties, comprehensive international legal documents and other provisions relating to the protection of climate environment. But in China there is no specific legislation, provisions on it are reflected in the laws and regulations about energy conservation and pollution control, besides, there are some relevant rules and regulatory documents. Without specific legislation, in China the legal attribute orientation of carbon emission right still remain in the academic discussion stage. From the view of civil law, there are mainly property right theory and property theory. Taking characteristics, functions of rights and existing system background into account, carbon emission rights should be defined as quasi-property right. After defining the properties of the right, we need to make laws. Because carbon emission right is a kind of civil rights, in the huge pressure China faced to reduce emissions and the lack of effectiveness of legal regulation, in order to promote the subjects of right reducing emissions actively, realize the optimal allocation of resources and drive carbon emission right trading, it is necessary to adjust carbon emission right with civil laws.And the transformation of civil law idea, carbon emission right and its transaction system established in Kyoto Protocol, and experiences of China’s emission system make it possible. Therefore, in the choice of the legislative model, we can learn from quasi-property legislative model of our country, firstly providing fundamental issues in the civil code, then providing detailed systems in a separate law. And when we provide detailed systems, we should refer to the traditional property fights system and international success, make detailed provisions for the original acquisition, content, transfer, extinction, legal responsibility etc of carbon emission rights.