国际碳交易法律问题研究
发布时间：2018-07-31 07:04
【摘要】：国际碳交易就是对碳排放权的交易,即为履行减排义务或投资或其他目的买方主体与为获得资金或技术的卖方主体进行的以碳配额或碳信用为交易标的买卖交易。自20世纪90年代以来,国际碳交易得到了迅猛发展,特别是在欧盟碳排放交易体系的建立和运行以及发展中国家积极参与到国际碳排放交易体系中以后。中国虽不是《京都议定书》第一期强制减排义务的国家,但作为最大的发展中国家,中国是发达国家CDM项目机制实施的主要卖方国。而且,在接下来的几十年里,中国虽需要反对对发展中国家实施强制减排义务,抵制美国和欧盟的碳排放交易税,但积极主动参与解决气候变化问题和实施碳排放交易是争夺国际气候领域主导话语权的关键。因此,对国际碳交易的研究,不但可以为研究当前国际碳交易存在的问题,系统化解难题取得突破和将碳交易写进我国的《大气污染防治法》或建立我国独立的碳交易法律规范并与国际碳交易规则接轨奠定一定的理论基础；而且在实践上,它也能为解决我国在如何迎接可能面临的强制减排义务和建立碳交易的法律规范体系方面的问题提供参考,并能为我国的企业实体全面参与国际碳交易提供有效指导。 依据目前国际碳交易理论和实践的经验,国际碳交易还存在碳排放权权属不明确、碳交易法律规范的软法性、碳认证标准的不统一、碳交易协议模板中设定的权利义务不对等、碳交易过程中的贸易限制措施与WTO规则存在法律冲突等方面的问题。以公平自由、正义的贸易环境为研究基础,以当国际碳交易面临的问题为研究对象,以国际碳交易的市场运行机制为研究进路,以构建碳交易公平体系为研究核心,运用历史与现实考察法、实证与规范分析法、比较分析法等方法研究后发现：一是碳排放权的法律属性是碳交易的基准和核心。对碳排放权的属性认定,无论是英美法系的财产属性,还是大陆法系的用益物权属性、准物权属性或是环境权属性,都存在局限性。在超越法系或是国内法基本理论和制度的基础上,从国际法层面作出法律、伦理和道德的回应,碳排放权应具有国际自然法属性、人权法属性以及人类环境权益法属性；二是国际碳交易法律体系从《联合国气候变化框架》、《京都议定书》到欧盟碳排放交易指令到各国的碳排放交易法律规范,表现出法律体系的非统一性、法律规范的非完整性、法律效力的软法性等特征,不利于国际强制减排义务的落实和国际碳交易的发展,需要国际社会共同努力在给予各缔约国时间和责任义务分配上的区别对待的前提下,可以逐步达成广泛一致的强制减排公约或协定；三是碳认证是进行碳交易项目的必然程序；碳项目的认证标准是确定最后获得核证的减排量的法定依据。当前,国际碳认证标准的多样性,导致碳交易项目的认证结果不统一,甚至导致整个碳交易市场的分割和产生国际碳交易市场的技术性壁垒。为此,在国际碳交易的发展中,需要从立法层面对国际碳认证的标准进行研究,建立一个或少数几个精准的科学的认证标准,以保障国际碳交易项目认证的公平与公正；四是国际碳交易行为是通过国际碳交易合同的有效约定达成的,但国际碳交易合同并没有形成统一的示范合同。基于不同碳交易主体,会选择不同碳交易合同模板。而这会导致碳交易主体在权利和义务上的不公平。参照一般的国际商事买卖合同,比较碳交易合同在主体和客体、权利和义务、履约程序和法律效力等内容的特殊性约定,找出其不足,并在合同适同中给予非违约主体以救济措施,将会有效促进碳交易的发展和公平性；五是国际社会一直努力在世界贸易组织规则与《联合国气候变化框架公约》体系下的制度规定之间形成了一个相互尊重对方管制领域的普遍共识。但国际碳交易的贸易限制措施与WTO法设定的自由贸易义务和削减市场准入壁垒的义务是背道而驰的。在对碳排放权交易制度是否属于WTO法的适用范围作出肯定判断后,我们有必要恰当地平衡环境保护目标与多边自由贸易体制价值取向之间的冲突关系,从而找到国际碳交易的贸易限制措施与WTO规则之间的一致性。 因此,国际碳交易是人类社会控制气候变化的一个制度创新,具有重要的理论和实践意义,但也存在不少问题。它需要国际社会对碳排放权的法律属性进行确认、强化法律规范的强行性、建立统一的碳项目认证标准,并平衡碳交易主体之间的权利和义务,寻求碳贸易限制措施的法律冲突解决,才能实现国际碳交易的有序和公正。
[Abstract]:International carbon trading is the transaction of carbon emission rights, that is, the trading transactions with carbon quotas or carbon credits as the subject of carbon quotas or carbon credits for the performance of emission reduction obligations or investment or other purposes and the seller's main body for obtaining funds or technology. Since 1990s, international carbon trading has developed rapidly, especially in the EU's carbon emissions. After the establishment and operation of the trading system and the active participation of developing countries in the international carbon emissions trading system, China is the largest developing country, although it is not the first phase of the compulsory emission reduction obligation of the Kyoto protocol. China is the major seller of the CDM project mechanism in the developed countries. Although China needs to oppose the compulsory emission reduction obligations to the developing countries and resist the carbon emissions trading tax of the United States and the EU, active participation in the solution of climate change and the implementation of carbon emissions is the key to competing for the dominant discourse right in the international climate field. Therefore, the study of international carbon trading can not only be used to study the current country. The problems existing in the carbon trading, the breakthroughs in systematic solutions and the introduction of carbon trading into China's "air pollution prevention and control law" or the establishment of an independent carbon trading law in our country and the integration of international carbon trading rules to establish a theoretical basis; and in practice, it can also solve the coercive force that China is facing. It provides a reference for the problems of reducing emission obligations and establishing the legal system of carbon trading, and can provide effective guidance for our enterprise entities to participate in international carbon trading in an all-round way.
According to the current experience of international carbon trading theory and practice, international carbon trading still exists unclear carbon emission rights, soft law of carbon trading legal norms, non uniform standard of carbon certification, unequal rights and obligations set in the carbon trading protocol template, and conflict of laws in the process of carbon trading and WTO rules in the process of carbon trading. On the basis of fair freedom and just trade environment, taking the problems faced by international carbon trading as the research object, taking the market operation mechanism of international carbon trading as the research approach, building a fair system of carbon trading as the research core, using historical and realistic investigation methods, empirical and normative analysis, comparative analysis method and so on The first is that the legal attribute of carbon emission rights is the basis and core of carbon trading. The identification of the property of carbon emission rights, whether it is property property of the Anglo American law system, or the property of usufructuary right in the continental law system, the property of quasi real right or the attribute of environmental rights, is limited. It is beyond the law or the basic theories and systems of domestic law. On the basis of the legal, ethical and moral responses from the international law level, carbon emission rights should have the attributes of international natural law, human rights law and human environmental rights and interests, and the two is the international carbon trading legal system from the United Nations Framework for climate change, the Kyoto Protocol to the EU carbon emissions trading instructions to the carbon emissions of countries. The non unity of the legal system, the non completeness of the legal norms and the soft law of the legal effect are not conducive to the implementation of international compulsory emission reduction obligations and the development of international carbon trading. It is necessary for the international community to make the difference between the time of the States parties and the distribution of responsibilities and obligations. Three is that carbon certification is the inevitable procedure for carbon trading projects, and the certification standard of carbon project is the legal basis for determining the final certification. In the development of international carbon trading, it is necessary to study the international carbon certification standards in the development of international carbon trading, establish one or a few accurate scientific certification standards, in order to ensure the fairness and impartiality of the national carbon trading project certification; four is the country. The international carbon trading behavior is achieved through the effective agreement of the international carbon trading contract, but the international carbon trading contract does not form a unified model contract. Based on different carbon trading subjects, different carbon trading contract templates will be chosen. This will lead to the unfair of the rights and obligations of the carbon trading subjects. In the same way, the particularity of carbon trading contracts in the subject and object, rights and obligations, performance procedures and legal effectiveness, to find out its shortcomings, and to give non default subjects in the same contract as relief measures, will effectively promote the development and fairness of carbon trading; five is the international community has been working hard in the rules of the world trade organization. A common consensus has been formed between the provisions of the system under the framework of the United Nations Framework Convention on climate change. However, the trade restrictions on international carbon trading are contrary to the free trade obligations set by the WTO law and the obligation to reduce market access barriers. After a positive judgement of the scope of application of the WTO law, it is necessary to properly balance the conflict between the environmental protection targets and the value orientation of the multilateral free trade system, so as to find the consistency between the trade restriction measures of international carbon trading and the WTO rules.
Therefore, international carbon trading is a system innovation for the human society to control climate change. It has important theoretical and practical significance, but there are many problems. It needs the international community to confirm the legal attributes of carbon emission rights, strengthen the strength of the legal norms, establish the unified carbon project certification standard, and balance the subject of carbon trading. In order to realize the order and justice of international carbon trading, we should solve the legal conflicts between the rights and obligations between the two countries.
【学位授予单位】：湖南师范大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D996.9
本文编号：2154810
[Abstract]:International carbon trading is the transaction of carbon emission rights, that is, the trading transactions with carbon quotas or carbon credits as the subject of carbon quotas or carbon credits for the performance of emission reduction obligations or investment or other purposes and the seller's main body for obtaining funds or technology. Since 1990s, international carbon trading has developed rapidly, especially in the EU's carbon emissions. After the establishment and operation of the trading system and the active participation of developing countries in the international carbon emissions trading system, China is the largest developing country, although it is not the first phase of the compulsory emission reduction obligation of the Kyoto protocol. China is the major seller of the CDM project mechanism in the developed countries. Although China needs to oppose the compulsory emission reduction obligations to the developing countries and resist the carbon emissions trading tax of the United States and the EU, active participation in the solution of climate change and the implementation of carbon emissions is the key to competing for the dominant discourse right in the international climate field. Therefore, the study of international carbon trading can not only be used to study the current country. The problems existing in the carbon trading, the breakthroughs in systematic solutions and the introduction of carbon trading into China's "air pollution prevention and control law" or the establishment of an independent carbon trading law in our country and the integration of international carbon trading rules to establish a theoretical basis; and in practice, it can also solve the coercive force that China is facing. It provides a reference for the problems of reducing emission obligations and establishing the legal system of carbon trading, and can provide effective guidance for our enterprise entities to participate in international carbon trading in an all-round way.
According to the current experience of international carbon trading theory and practice, international carbon trading still exists unclear carbon emission rights, soft law of carbon trading legal norms, non uniform standard of carbon certification, unequal rights and obligations set in the carbon trading protocol template, and conflict of laws in the process of carbon trading and WTO rules in the process of carbon trading. On the basis of fair freedom and just trade environment, taking the problems faced by international carbon trading as the research object, taking the market operation mechanism of international carbon trading as the research approach, building a fair system of carbon trading as the research core, using historical and realistic investigation methods, empirical and normative analysis, comparative analysis method and so on The first is that the legal attribute of carbon emission rights is the basis and core of carbon trading. The identification of the property of carbon emission rights, whether it is property property of the Anglo American law system, or the property of usufructuary right in the continental law system, the property of quasi real right or the attribute of environmental rights, is limited. It is beyond the law or the basic theories and systems of domestic law. On the basis of the legal, ethical and moral responses from the international law level, carbon emission rights should have the attributes of international natural law, human rights law and human environmental rights and interests, and the two is the international carbon trading legal system from the United Nations Framework for climate change, the Kyoto Protocol to the EU carbon emissions trading instructions to the carbon emissions of countries. The non unity of the legal system, the non completeness of the legal norms and the soft law of the legal effect are not conducive to the implementation of international compulsory emission reduction obligations and the development of international carbon trading. It is necessary for the international community to make the difference between the time of the States parties and the distribution of responsibilities and obligations. Three is that carbon certification is the inevitable procedure for carbon trading projects, and the certification standard of carbon project is the legal basis for determining the final certification. In the development of international carbon trading, it is necessary to study the international carbon certification standards in the development of international carbon trading, establish one or a few accurate scientific certification standards, in order to ensure the fairness and impartiality of the national carbon trading project certification; four is the country. The international carbon trading behavior is achieved through the effective agreement of the international carbon trading contract, but the international carbon trading contract does not form a unified model contract. Based on different carbon trading subjects, different carbon trading contract templates will be chosen. This will lead to the unfair of the rights and obligations of the carbon trading subjects. In the same way, the particularity of carbon trading contracts in the subject and object, rights and obligations, performance procedures and legal effectiveness, to find out its shortcomings, and to give non default subjects in the same contract as relief measures, will effectively promote the development and fairness of carbon trading; five is the international community has been working hard in the rules of the world trade organization. A common consensus has been formed between the provisions of the system under the framework of the United Nations Framework Convention on climate change. However, the trade restrictions on international carbon trading are contrary to the free trade obligations set by the WTO law and the obligation to reduce market access barriers. After a positive judgement of the scope of application of the WTO law, it is necessary to properly balance the conflict between the environmental protection targets and the value orientation of the multilateral free trade system, so as to find the consistency between the trade restriction measures of international carbon trading and the WTO rules.
Therefore, international carbon trading is a system innovation for the human society to control climate change. It has important theoretical and practical significance, but there are many problems. It needs the international community to confirm the legal attributes of carbon emission rights, strengthen the strength of the legal norms, establish the unified carbon project certification standard, and balance the subject of carbon trading. In order to realize the order and justice of international carbon trading, we should solve the legal conflicts between the rights and obligations between the two countries.
【学位授予单位】：湖南师范大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D996.9
【引证文献】
相关期刊论文 前1条
1 章红;;关于构建我国统一碳交易市场的SWOT分析[J];煤炭经济研究;2013年08期
相关硕士学位论文 前1条
1 任丹;我国碳排放权交易法律制度的建构[D];上海大学;2013年
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