Research On The Judicial Application Of The Green Principle

Article 9 of the General Provisions of the Civil code stipulates that "civil subjects engaged in civil activities should be conducive to saving resources and protecting the ecological environment." The restriction of this article on ecological environment protection in civil subjects’ activities is recognized as the "green principle" of the civil law.From the General Principles of the Civil Law to the promulgation and implementation of the Civil code,the content and order of the "green principle" have not been changed.This is not only the inheritance and development of China’s traditional "Unity of Heaven and humanity in one" thought,but also the civil law response to "protecting the environment and everyone is responsible".However,under the guidance of the theory of "exhaustion rules can only be applied",the green principle has been widely discussed in judicial practice and theory.As the field of civil subject autonomy best reflected in the Civil code,this paper uses the comprehensive research methods of case analysis,comparative analysis and literature analysis to analyze the theoretical deficiencies and practical dilemmas in the judicial application of the green principle,starting from three cases involving the judicial practice of the green principle in contract disputes.Finally,it proposes the path and strategies to improve and strengthen the judicial application of the green principle,To leverage the function and role of green principles in judicial application.In the study of the judicial application of the green principle,through the analysis and comparison of three contract cases with different judgments in the same case,three key issues in the judicial application of the green principle have been identified:whether the green principle is applicable as a defense for breach of contract by civil subjects is not yet unified,the standards for judicial application are not unified,and the legal effects produced by its application are not consistent.Professor Liu Zuoxiang,a legal scholar,stated in the function of legal theory in judicial practice: "Any legal judgment must be based on legal theory.Without legal theory,a legal judgment may deviate from the purpose and original intention of the law.Analyze the legal principles of the judicial application of the green principle to make the analysis of the judicial application of the green principle more thorough.On the one hand,conduct a theoretical analysis of the green principle and its judicial application in the field of contracts.Because the green rule clauses in the contract still fall within the scope of the green principle,analyzing the relationship between the two can lay the foundation for the future emergence of new types of disputes and the application of the green principle for resolution.The reason why the green principle can be applied in judicial practice is precisely because it has a judicial nature.The environmental interests protected by this principle belong to the public interest,and the provisions in the civil law can demonstrate the independent value of the green principle,reflecting the legislative determination of the country to protect environmental interests in the civil field.When it comes to judicial application,judges need to determine whether civil subjects have fulfilled their environmental protection obligations and whether the substantive effect of civil subjects being able to enjoy a good environment has been achieved.These two important considerations for judges to apply the green principle.On the other hand,analyze the reasons for the judicial application of the green principle,as environmental interests were previously more protected by traditional public law,while the green principle,which also plays an environmental role in private law,is susceptible to the influence of traditional public law regulations on environmental issues when applied.The green principle belongs to the restrictive principle,but unclear standards for restrictive effects can interfere with judicial application.In the process of judicial application of green principles,the influence of non legal factors is also one of the important reasons for the application of green principles.The significance of case analysis lies in providing assistance for judicial practice,so the research inspiration lies in clarifying the aforementioned analysis and summarizing it,leading to strong suggestions for the judicial application of the green principle.However,it is also necessary to understand that there is not an absolute one-to-one correspondence between problems and suggestions.In order to ensure the correct and appropriate application of the green principle in future cases related to environmental issues,this article finally proposes the use of the transfer ability of the green principle to communicate the comprehensive application of the green principle between private law and public law,in order to achieve the judicial effect of the value of the green principle;Introducing the necessity and moderation to regulate the application of green principles;Clarify the connotation of the green principle and the procedures for judicial application to strengthen the reasoning and reasoning abilities of judges;Four suggestions are put forward to promote the application and operation of green principles on the track of the rule of law,including the typification effect of cases that apply green principles.