Research On The Right Attribute Positioning Of Carbon Emission

Facing the environmental background of global climate change,the international community has signed a series of international environmental conventions and agreements to slow down the process of global climate change.China has also been actively fulfilling its international emission reduction commitments.Carbon emission trading system is an important market mechanism and environmental regulation means for the international and domestic society to deal with climate change.Externality theory,property rights theory and the concept of “public Commons” are the economic connotation of carbon emission trading system.China takes emission quota as the object of carbon emission trading and has made clear provisions at the national and local levels.In the carbon emission trading system,“carbon emission right”,“carbon emission” and “emission right” are different in concept connotation and reference scope.In terms of the scope of the trading market,the international carbon emission trading market is larger than the domestic market,while the scope of voluntary trading subjects is larger than that of compulsory trading subjects.In addition,carbon emission right also has the characteristics of both public and private,ecological and property,and has value attribute,which is an intangible commodity.In practice,China considers carbon emission right as a kind of right under the legal background,the mixed public-private nature of carbon emission right and the dynamic interaction between government and market provide difficulties to clearly define its legal nature,and there are many incompatibilities with the current legal system.There are many opinions on its legal nature,such as environmental right theory,real right theory(including usufructuary right,quasi-real right,etc.),new property right theory and administrative licensing theory.According to the standard of dividing managers and private subjects,there are many opinions about their legal nature,such as the theory of right to development and administrative permission,the theory of environmental rights and interests,the theory of real right(including usufruct right,quasi real right,etc.)and the theory of new property rights.As an economic means of government participation,administrative regulation theory is conducive to overcoming the negative externalities of enterprises,meeting the need of protecting public interests,and is also a public choice.From the practice of the construction of the national carbon emissions trading market,the legislation cost,right relief and system flexibility,if it is recognized as administrative regulation power,it will help the administrative organs constantly adjust the secondary distribution of the domestic market according to the climate change control goals and emission reduction commitments of the international community,and provide the government with greater institutional adjustment space.The government can manage the carbon emission right through specific administrative behaviours such as administrative license and administrative penalty,and market participants can also achieve the relief of rights through administrative reconsideration and administrative litigation,which conforms to the basic theory of modern administrative law and is also a kind of innovation and development.The theory of administrative license is embodied in the process of carbon quota distribution.The participation of public power helps to further improve the mechanism,achieve the goal of "moderately tight total amount and reasonable price",and at the same time,take into account efficiency and fairness,so as to promote the further development of carbon market.