论我国适用风险预防原则的法律制度构建
发布时间：2018-08-09 12:09
【摘要】： 肇始于欧洲的现代化的一个重要维度就是通过科技的发展给人类提供美好愿景的预期。由于科技的进步和各种意识的交流交融交锋,现代社会变得更加复杂化,相应地也更容易发生分裂。无论是从基于国际化逻辑的历史经验上还是从基于本土关怀的规范认知上,我们都可以看出,当下的社会已进入风险社会。 自20世纪90年代以来,风险防范原则在国际社会获得广泛认同,并为许多国家的国内法所吸收,但我们也必须看到,各国际文件中对风险预防原则的规定也不尽相同。同时,在国际司法实践中,适用风险预防原则的案例也很少,具有较大的争议性。这表明,风险预防原则在各方面都还不成熟,需要进一步的发展。 风险预防原则在我国环境法已经确立,从50年代的确立“预防为主,防治结合”的为我国环境保护的基本原则,到对于规划设计战略环境影响评价制度表明了我国的预防原则正由损害预防转为风险预防。本文基于对我国立法实践经验与国外制度考察,找出问题和不足,进而通过完善相关制度建设来贯彻该原则。 首先笔者分析了风险、风险社会、风险预防原则等概念的基本理论,得出我们已经进入风险社会这一结论,提出处于风险社会中要如何应对风险,如何进行防范。紧接着又对风险预防原则的基本理论依据进行了详细的阐述,如支持风险预防原则的伦理基础、支持风险预防原则的经济学基础——成本效益分析和与可持续发展观中最具特色的公平理论。通过对这些理论的分析,我们便可以得知风险预防原则的确立依据,也更好的对风险预防原则进行把握。 其次笔者对外国风险预防原则环境法律中的制度体现进行分析。作为风险预防原则最为突出的战略环境影响评价制度、总量控制制度、企业环境信息公开制度进行详细解析,以该原则形成和发展的路径为焦点,分析该原则的发展轨迹及其所起的作用。 接着笔者将视线转向国内,通过对我国的环境法中的风险预防原则相关制度进行分析,拷问现行相关制度是否足够、充分?有无必要增加新制度?已有的制度设计是否存在问题?是什么影响到其实施成效? 最后笔者在对前一部分分析的结果上进行思考,对于现存法律制度应该如何进行完善?对于新领域如生态安全、转基因食品是否需要制定新法?对于新法又如何保证其实施效果? 总之,本文在对风险预防原则基本理论的研究和对体现国内外风险预防原则的基本制度进行分析、整合、对比,认为风险预防法律制度应该涵盖三个层面：一是综合性的风险预防法律；二是制定专门的风险预防法律法规；三是风险预防方面的其他法律法规,如政府采购法等中纳入与风险预防原则相配套的规定。而该原则在我国未来的发展路径是建立具有我国特色的风险预防理论和法律体系；强化风险预防的实施和法律建构；建立风险预防体制过程中的公众参与机制；紧密结合环境保护的其他原则和方式方法,协调各类原则之间的关系；加强可持续发展与风险预防原则之间关联的研究,注重应用过程中面临的经济、社会和环境问题。
[Abstract]:One of the important dimensions of modernization in Europe is the expectation of providing a good vision for mankind through the development of science and technology. As the progress of science and technology and the exchange of consciousness, the modern society becomes more complex and more likely to break up, whether from the historical experience based on the international logic or from the historical experience. Based on the normative cognition of native care, we can see that the present society has entered a risk society.
Since the 1990s, the principle of risk prevention has been widely recognized in the international community and has been absorbed by the domestic law of many countries. However, we must also see that the rules of risk prevention are different in various international documents. At the same time, in international judicial practice, there are few cases suitable for the principle of risk prevention. Controversies. This shows that the precautionary principle is not mature in all respects and needs further development.
The principle of risk prevention has been established in China's environmental law. From 50s, the basic principle of "prevention and prevention and control combination" is the basic principle of environmental protection in our country. To the planning and design strategic environmental impact assessment system, the prevention principle of our country is being turned from damage prevention to risk prevention. This article is based on the experience of China's legislation. With the foreign system, we can find out the problems and deficiencies, and then implement the principle through perfecting relevant system construction.
First, the author analyzes the basic theory of risk, risk society, risk prevention principle and so on, and draws the conclusion that we have entered the risk society, and puts forward how to deal with risk in the risk society and how to prevent it. Then the basic theoretical basis of the risk prevention principle is expounded in detail, such as supporting the risk preview. The ethical basis of the precautionary principle supports the economic basis of the principle of risk prevention - the cost-benefit analysis and the most distinctive theory of equity in the concept of sustainable development. Through the analysis of these theories, we can find out the basis for the establishment of the principle of risk prevention and better grasp the principle of risk prevention.
Secondly, the author analyzes the institutional embodiment of the environmental law of foreign risk prevention principles. As the most prominent strategic environmental impact assessment system for risk prevention, the total amount control system and the enterprise environmental information disclosure system are analyzed in detail, focusing on the path of the formation and development of the principle, and analyzing the development track of the principle and the development path of the principle. The role it plays.
Then the author turns his eyes to the home, and through the analysis of the system of risk prevention in China's environmental law, whether the existing system is sufficient and sufficient? Is there a need to increase the new system? Is there any problem in the existing system design? What affects the effectiveness of its implementation?
Finally, I think about the results of the previous part of the analysis, how should the existing legal system be improved? For new fields such as ecological security, do genetically modified foods need to develop new laws and how to ensure the effectiveness of the new law?
In a word, this paper analyzes the basic theory of the principle of risk prevention and the basic system that embodies the principle of risk prevention at home and abroad. It is integrated and contrasted that the legal system of risk prevention should cover three levels: one is the comprehensive risk prevention law; the two is to formulate special risk prevention laws and regulations; and three is the risk precondition. Other laws and regulations, such as the government procurement law, include the provisions of the principle of risk prevention. The future development path of this principle is to establish a risk prevention theory and a legal system with our own characteristics; to strengthen the implementation and legal construction of risk prevention and to establish public participation in the process of risk prevention. And mechanism; closely combining other principles and methods of environmental protection, coordinating the relationship between various principles; strengthening the study of the association between the principles of sustainable development and risk prevention, and paying attention to the economic, social and environmental problems in the process of application.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.6
本文编号：2174029
[Abstract]:One of the important dimensions of modernization in Europe is the expectation of providing a good vision for mankind through the development of science and technology. As the progress of science and technology and the exchange of consciousness, the modern society becomes more complex and more likely to break up, whether from the historical experience based on the international logic or from the historical experience. Based on the normative cognition of native care, we can see that the present society has entered a risk society.
Since the 1990s, the principle of risk prevention has been widely recognized in the international community and has been absorbed by the domestic law of many countries. However, we must also see that the rules of risk prevention are different in various international documents. At the same time, in international judicial practice, there are few cases suitable for the principle of risk prevention. Controversies. This shows that the precautionary principle is not mature in all respects and needs further development.
The principle of risk prevention has been established in China's environmental law. From 50s, the basic principle of "prevention and prevention and control combination" is the basic principle of environmental protection in our country. To the planning and design strategic environmental impact assessment system, the prevention principle of our country is being turned from damage prevention to risk prevention. This article is based on the experience of China's legislation. With the foreign system, we can find out the problems and deficiencies, and then implement the principle through perfecting relevant system construction.
First, the author analyzes the basic theory of risk, risk society, risk prevention principle and so on, and draws the conclusion that we have entered the risk society, and puts forward how to deal with risk in the risk society and how to prevent it. Then the basic theoretical basis of the risk prevention principle is expounded in detail, such as supporting the risk preview. The ethical basis of the precautionary principle supports the economic basis of the principle of risk prevention - the cost-benefit analysis and the most distinctive theory of equity in the concept of sustainable development. Through the analysis of these theories, we can find out the basis for the establishment of the principle of risk prevention and better grasp the principle of risk prevention.
Secondly, the author analyzes the institutional embodiment of the environmental law of foreign risk prevention principles. As the most prominent strategic environmental impact assessment system for risk prevention, the total amount control system and the enterprise environmental information disclosure system are analyzed in detail, focusing on the path of the formation and development of the principle, and analyzing the development track of the principle and the development path of the principle. The role it plays.
Then the author turns his eyes to the home, and through the analysis of the system of risk prevention in China's environmental law, whether the existing system is sufficient and sufficient? Is there a need to increase the new system? Is there any problem in the existing system design? What affects the effectiveness of its implementation?
Finally, I think about the results of the previous part of the analysis, how should the existing legal system be improved? For new fields such as ecological security, do genetically modified foods need to develop new laws and how to ensure the effectiveness of the new law?
In a word, this paper analyzes the basic theory of the principle of risk prevention and the basic system that embodies the principle of risk prevention at home and abroad. It is integrated and contrasted that the legal system of risk prevention should cover three levels: one is the comprehensive risk prevention law; the two is to formulate special risk prevention laws and regulations; and three is the risk precondition. Other laws and regulations, such as the government procurement law, include the provisions of the principle of risk prevention. The future development path of this principle is to establish a risk prevention theory and a legal system with our own characteristics; to strengthen the implementation and legal construction of risk prevention and to establish public participation in the process of risk prevention. And mechanism; closely combining other principles and methods of environmental protection, coordinating the relationship between various principles; strengthening the study of the association between the principles of sustainable development and risk prevention, and paying attention to the economic, social and environmental problems in the process of application.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.6
【引证文献】
相关会议论文 前1条
1 杨丽娜;王世进;;论环境风险防范法律制度的构建[A];生态安全与环境风险防范法治建设——2011年全国环境资源法学研讨会（年会）论文集（第一册）[C];2011年
相关硕士学位论文 前1条
1 周京星;风险预防原则在海洋环境保护法中的适用[D];大连海事大学;2012年
，本文编号：2174029
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