我国生态保护补偿概念的法学界定——基于历史的分析进路
发布时间：2018-07-14 16:09
【摘要】：生态保护补偿概念是相关立法的基本前提,也是相关法学研究的逻辑起点。"生态保护补偿"是特定政策实践与理论发展的产物,亟待以科学的认识论为指导,从多元化的静态分析路径转向动态的历史视角。发展至今的"生态保护补偿"一词,在法规政策中的表述或概念研究层面的理解,其彰显的"正外部性"补偿特性已获得广泛的立论支持,且被进一步认为是包含"发展利益受限"等其他各种正外部性行为的补偿。但"发展利益受限"没有被作为"生态保护补偿"的唯一特殊予以重点关怀而仅仅是点到为止。此外,总体而论,当前的概念认知仍停留在"对正外部性行为予以补偿"的传统认识论阶段——这使得所有产生积极环境效益的行为无法被区分。由于当前生态保护补偿的界定已然失之个性,生态保护概念必然无法有效解释并指导制度实践的开展。为此,很有必要基于新的理论基础对生态保护补偿概念予以再界定,旨在揭示其特殊的存在价值。生态保护补偿概念重构的理论基础为"私法层面的自然资源使用权受限与利益弥补"。该定义一方面可以解释生态保护补偿的独特本质,另一方面能够指导我国各类补偿实践的开展。
[Abstract]:The concept of ecological protection and compensation is the basic premise of relevant legislation and the logical starting point of relevant legal research. " Ecological protection compensation "is the product of the development of specific policy practice and theory. It is urgent to take the scientific epistemology as the guidance and turn from the diversified static analysis path to the dynamic historical perspective." The term "compensation for ecological protection", which has been developed up to now, has been widely supported in terms of its expression in laws and regulations or in conceptual research, and its "positive externality" compensation characteristic has been widely supported. It is further considered as compensation for other positive externalities, such as limited development interests. However, the limitation of development benefits is not regarded as the only special concern of ecological protection compensation, but only ends. In addition, in general, the current conceptual cognition is still in the traditional epistemological stage of "compensating positive externalities", which makes it impossible to distinguish all behaviors that produce positive environmental benefits. Because the definition of ecological protection compensation has lost its individuality, the concept of ecological protection cannot explain and guide the development of system practice. Therefore, it is necessary to redefine the concept of ecological protection compensation based on the new theoretical basis, in order to reveal its special existence value. The theoretical basis of the reconstruction of the concept of ecological protection compensation is the limitation of the right to use natural resources and the compensation of interests in private law. On the one hand, the definition can explain the unique nature of ecological protection compensation, on the other hand, it can guide the development of various compensation practices in China.
【作者单位】： 中央财经大学法学院;
【基金】：国家社会科学基金重点项目(12AZD062)
【分类号】：D922.68
[Abstract]:The concept of ecological protection and compensation is the basic premise of relevant legislation and the logical starting point of relevant legal research. " Ecological protection compensation "is the product of the development of specific policy practice and theory. It is urgent to take the scientific epistemology as the guidance and turn from the diversified static analysis path to the dynamic historical perspective." The term "compensation for ecological protection", which has been developed up to now, has been widely supported in terms of its expression in laws and regulations or in conceptual research, and its "positive externality" compensation characteristic has been widely supported. It is further considered as compensation for other positive externalities, such as limited development interests. However, the limitation of development benefits is not regarded as the only special concern of ecological protection compensation, but only ends. In addition, in general, the current conceptual cognition is still in the traditional epistemological stage of "compensating positive externalities", which makes it impossible to distinguish all behaviors that produce positive environmental benefits. Because the definition of ecological protection compensation has lost its individuality, the concept of ecological protection cannot explain and guide the development of system practice. Therefore, it is necessary to redefine the concept of ecological protection compensation based on the new theoretical basis, in order to reveal its special existence value. The theoretical basis of the reconstruction of the concept of ecological protection compensation is the limitation of the right to use natural resources and the compensation of interests in private law. On the one hand, the definition can explain the unique nature of ecological protection compensation, on the other hand, it can guide the development of various compensation practices in China.
【作者单位】： 中央财经大学法学院;
【基金】：国家社会科学基金重点项目(12AZD062)
【分类号】：D922.68
【参考文献】
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