| The environment provides the basic material foundation for generations of man's survival and development,and it remains the survival guarantee and spiritual support for the sustainable development of human society.Nevertheless,the carrying capacity of the natural environment is limited.The pursuit of economic growth and neglect of environmental protection will only make the antagonistic relation between the economy and the environment increasingly tense.The "Environmental Protection Law"(1989)established the principle of "coordinated development",but it was not implemented into practice and gradually alienated into "economic priority",leading to the continuous outbreak of environmental pollution incidents in China.In 2014,the new "Environmental Protection Law" firstly established the "protection priority" principle,as a response to the increasingly serious environmental pollution situation in China in recent years,and also responded to the idea of ecological civilization construction established by the party's "18th National Congress".The study on the principle of “protection priority” can trace the evolution of the guiding ideology of environmental protection in the process of environmental law in China,which can lead us to think more deeply.How should China correctly handle the relationship between economic development and environmental protection at this stage.Relative to the theoretical study of the principle,the discussion on the implementation of the principle of “protection first”seems more significant.Study on how the principles of“protection priority” should be implemented,whether it should be implemented equally in various regions and fields,whether it should follow the “environmental protection priority” and other issues in the relationship between economic development and environmental protection,can help broaden the horizon for China's future environmental protection and provide direction for the construction of ecological civilization in China,and at the same time provide reference for the implementation of other basic principles of environmental law in the future.In addition to the introduction,the article is divided into five parts to discuss the implementation of the "protection priority" principle,mainly in accordance with the following research ideas:The first part analyzes the application station of the environmental protection priority principle.Firstly,from the analysis of the principle of protection priority to the reflection of the principle of coordinated development,the great inertia of economic and social development,and the long-term nature of the interests embodied in environmental protection,we analyze the entanglement of China's consideration of the relationship between economic development and environmental protection.Secondly,by analyzing the problems existing in the design and operation of the environmental legal system stipulated in the current Environmental Protection Law,we explore the deviation of the basic system of environmental law from the spirit of the principle of “protection priority”.Finally,the analysis and measurement of the interest relationship involved in the principle of “protection priority”,combined with the economic factors,security factors and human rights factors that may lead to the difference in the results of the measurement of benefits,indicates that the difficulty in the implementation of the principle is the weigh of actual interests.The second part explores the inevitabilities and possibilities of its implementation from the internal perspective of the principle of “protection first”.First of all,based on the purpose of "protection first" principle,by analyzing the inherent relationship between the setting of the "protection priority" principle and the legislative purpose of the "Environmental Protection Law",that is,the "protection priority" principle reflects and extends the environmental protection law purpose,thereby providing a basis for its implementation.Secondly,by analyzing the mandatory function of the principle of “protection first” and the characteristics of the implied terms that can be embodied in the law,the enforceability of the principle is discussed.Finally,according to the transitional position of the principle in the environmental protection law,explore its connection with the legislative purpose and legal rules in the environmental legal system,analyze its logical self-consistency to explore its legal system,and explore coordinating functions and interpreting functions,providing a rational basis for the implementation of the “protection first” principle.The third part explores the basic field that can be implemented from the external perspective of the “protection priority” principle.First of all,the principle of“protection priority” can be implemented in the context of national environmental policies,including the basic national policy of “protecting the environment” and other environmental policies in China.By analyzing the manifestation of “protection priority” in China's environmental policy,research the implementation method in China's environmental policy.Secondly,the principle of “protection priority” can be implemented in the context of national economic and social development planning.Based on the “dual attribute” of the government,it analyzes the government's attitude towards environmental protection and discusses the government's macro implementation of the principle of “protection priority”.Finally,this principle can be implemented in the context of the government's environmental protection target responsibility system.By analyzing the government's environmental protection planning,environmental legal system,and environmental law enforcement actions,the principle of “protection priority” is implemented and it is placed on the government's environmental protection goals.The responsibility system and the responsibility mechanism of the evaluation system ensure the government's micro-implementation of the principle of “protection priority” through the analysis of the responsibility mechanism.The fourth part mainly analyzes the judicial guarantee of the implementation of the principle of “protection priority”.First of all,based on the basic characteristics of the "protection first" principle,through the analysis of its code of conduct and trial criteria,empowering the judiciary to activate the function of justice,to explore the possibility of judicial judgment.Finally,the author discusses the judicial application of the principle of “protection first”: on the one hand,through the analysis of the classic cases of the referee of “protection priority” in the field of environmental justice in the United States,we have the perspective of the attitude towards scientific uncertainty of environmental risks in the US judicial field and the value proposition of“protection priority” in the measurement of interests;On the other hand,returning tothe convergence mechanism of environmental protection administrative law enforcement and criminal justice in China,and the practice of environmental civil public interest litigation and the compensation system for ecological and environmental damage,the principle of “protection priority” in the application of the field are explored.The fifth part,the conclusion part of this article,mainly summarizes and refines the contents of the previous four parts,and clarifies the premise,difficulties and key points of the implementation of the “environmental protection priority principle”,so that the principle not only has the effect of taking the oath of value,but also is implemented on each period of China's environmental law,playing leading role in the construction of ecological civilization in China. |
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