The Green Principle Of Civil Code

As the sum of the civil code,article 3 to article 9 of "the general provisions of the civil law" state the basic principles of civil law,which is a creative feature of Chinese law,and is called outer display of the inner system.Article 9 of "the general provisions" appeared a new regulation: "Civil subjects engaged in civil activities shall be conducive to saving resources and protecting the ecological environment." This clause is called "the green principle ".The promulgation of "the green principle" is an important innovation and breakthrough in the compilation of Chinese civil code.At present,it is of great practical significance to promote the construction of ecological civilization and build a beautiful China.However,there are many disputes about the green principle.The disputes include whether green principle should be only included in environmental protection policy.The concept and connotation of green principle remain to be clarified.The green principle has been stipulated in the general provisions of civil code and becomes the basic legal principle of civil law.Whether it will have a great impact on the attribute of private law of civil law and the stability of civil law;whether there is even some overlap between green principle and existing public order and good custom principle in civil law in the content of regulation;whether green rules should only be set up and green principle should be deleted are also in the disputes.In summary,from the perspective of jurisprudence,it is about the identification of a legal principle,that is,is this green principle in the civil code a legal principle?Legal principle is an important legal concept,and is also an indispensable part of the legal system.However,many scholars at home and abroad have discussed what is legal principle and how to identify a principle as legal principle.Among them,the theory of legal principles of Ronald Dworkin,a famous American jurist,is widely recognized.In his monographs of "Taking Rights Seriously","Matter of Principle","Law's Empire",Dworkin in details discussed the definition of legal principles,the related concepts of legal principle,the roles of legal principle and interpretation theory,thus formed the distinctive "legal principle theory".Therefore,is this green principle in the civil code a legal principle for the study of the question raised above? The author tries to make use of Dworkin's theory of legal principle to discuss this problem.If the green idea in green principle wants to infiltrate in superstructures such as law and institution,the green principle basically has three kinds of states,namely legal principle,legal rule or policy.As is known to all,it is a truth that green principle exists in the general civil law,which means that it has been identified as a basic principle.But it doesn't mean that from the point of the jurisprudence,green principle has been identified as a legal principle.The establishment process of the green principle runs full of twists and turns,and has changed for many times with controversy.Therefore,from the perspective of jurisprudence,it is necessary to demonstrate why green principle is a legal principle,especially why green principle is more appropriate as a legal principle than as a policy or as a rule.Therefore,this paper aims at a theoretical framework,mainly using Dworkin's discussion on legal principles,combined with the views of Alexy,to solve the dispute over the green principle as a legal principle.Dworkin has discoursed legal principles and policy,involving the concept of legal principle,the nature of legal principles and policies,the differences and relations between legal principles and policies.According to discourse above,we try to analyze the relationships between the principles of green and environmental protection policy.And the conclusion that the green principles need policy support,but not only as environmental policies can be drawn.Finally,it explores the political and moral basis behind the green principles,and concludes that the green principles should be incorporated into the legal principles,not just as part of the environmental policy.According to relevant discourse about legal principles and rules of Dworkin,compared with the rules of green,the green principle of effectiveness is wider.The green principle can satisfy the system,stability and openness of the civil code deeper than the green rules.Additionally,the green principle can help for the connection of the civil code and environmental law.So,the green ideas condense into green principle,and make it as a legal principle,not only become the rule of law.Although there is no standard for judging the legal principle,the green principle can be proved from its constitutional basis and the function of value declaration.By studying the legal binding force of legal principles and the practical effect of green principles,this paper explores the justicability of green principles and the stability of law.We try to analyze the relations between green principles and other principles,involving public order and moral as well as the principle of non-misuse of rights.Starting from the controversy of the legislation process of green principle,we try to analyze green principle,public order,good customs and non-misuse of rights,and it is pointed out that the green principle cannot be included by public order and moral and non-misuse of rights.The green principle can be as an independent legal principle in this sense.According to Dworkin's classification of legal principles,it is pointed out that green principle is a legal principle established by the country to achieve the ecological goals,so green principle is a policy principle.Because the green idea in the green principle has become the consensus of the people all over the world,the green principle is also the public principle.The conclusion is drawn that "green principle" should be applied as a legal principle,but not only as an environmental protection policy or a green rule.