论我国贷款人环境责任的法律化

发布时间：2018-04-25 20:20

本文选题：赤道原则 + 绿色信贷　；参考：《中国政法大学》2015年硕士论文

【摘要】：随着赤道原则和企业社会责任的兴起,贷款人在环境保护中的作用逐步受到重视。然而目前贷款人信贷环保责任多体现为一种企业社会责任,以贷款人的自愿履行为基础,有必要将此种责任上升至法律责任层面,亦即环境社会责任的法律化。贷款人在信贷领域的法律责任来源于赤道原则,蕴含了环境法要求法律主体从“经济人”向“生态人”转变的立法理念,也体现了侵权法风险分配的功能,有利于实现环境损害负外部性的内化和环境风险的预防,同时将贷款人作为污染关系人概念的引入也有利于解决土壤污染等环境污染治理的历史遗留问题。贷款人环保社会责任的法律化主要通过两种形式实现:一是违反信贷环保规定的行政责任,即贷款人在从事信贷业务时,违反有关金融监管以及信贷环保的法律法规而应承担的法律上的不利后果。在构成要件上,责任承担的主体限定在银行业金融机构,责任追究的主要主体是法律法规授权的银行业监督管理机构,体现的是银监会等金融监管机构与贷款人间的监管关系,而非环保部门对银行的环境管理关系,即此种行政责任并非环境行政责任;其次,在违法性要件上,是商业银行在授信过程中违反有关信贷环保法规与政策以及金融监管法律,在我国信贷环保法规主要指《贷款通则》、《绿色信贷指引》等于有关金融“软法”,并配合金融监管“硬法”,通过软硬结合作为问责依据;再次,主观要件上主张在贷款人违反信贷环保规定的行政责任认定中采取过错归责原则,但非主观过错论而采客观过错论。二是环境民事侵权责任,该责任的构成要件分析是建立在对贷款人污染行为与污染关系人身份的划分基础之上:对于污染行为人,在担保利益实现前,贷款人作为担保物权人为了担保利益参对担保物进行适当监管,当达到参与管理并有能力对借款人污染行为其实质性作用时,与借款人构成共同侵权,承担连带责任;担保利益实现后,担保人作为担保物(如污染场地或其他污染源)的经营人、使用人时实施污染行为,则为贷款人的单独责任。贷款人作为污染行为人的环境民事责任与一般的环境民事责任在归责原则、主观要件、行为、免责事由、赔偿原则与限额等方面并无二致,所不同的是可以凭借其担保物权人的特殊身份而享有担保利益豁免。此外,环境污染潜伏期长与我国法定环境侵权诉讼时效长度间的不协调,出于填补损害和解决历史遗留的污染问题之目的,本文主张之后的土壤污染防治法或其他司法解释中涉及的有关贷款人环境民事责任条款应当具有溯及既往的效力。对于污染关系人,即担保利益实现后担保物的管理人、占有人,承担的是一种占有人责任,责任来源于对安全保障义务的违反,因而与一般的环境民事责任相比尤具特殊性。在归责原则上采过错归责,由于属于不作为侵权,因而必须在主观要件上要求过错,但这种法人或组织的过错判定并非指主观心理状态,而是一种客观过错,即对法定义务的违反;在行为要件上,贷款人作为污染关系人期间没有履行检视、监督、报告以及采取适当措施防治污染或可能发生的污染;在免责事由上,除了可适用污染行为人一般环境民事责任抗辩理由外,还可以主观上无过错免责;在赔偿限额的设定上,由于其安全保障义务背后的理论依据之一是收益与风险相一致要求,因而除了将对特定主体的民事权益损害和环境利益损害外,还应将贷款人在信贷业务中的获益纳入考量因素,最为直接的方式是以贷款人与借款人间借款合同确定的贷款金额百分比确定。在责任承担顺位上,将贷款人作为第二顺位责任人,即在环境侵权的污染行为人责任承担不可能情形下,要求作为污染关系人的贷款人承担损害赔偿责任。在新法溯及力问题上本文主张对污染关系人没有溯及力,因为安全保障义务的另一理论依托是危险控制理论,因而在污染发生或发现时特定义务履行只能是能够控制该危险的主体,即当下作为污染关系人的贷款人。
[Abstract]:With the rise of equatorial principle and corporate social responsibility, the lender's role in environmental protection is gradually paid attention to. However, at present, the liability of lender's credit environmental protection is a kind of corporate social responsibility, which is based on the voluntary performance of the lender. It is necessary to raise such responsibility to the level of legal responsibility, that is, the law of environmental social responsibility. The legal responsibility of the lender in the credit field comes from the equatorial principle, which contains the legislative idea that the environmental law requires the legal subject to change from the "economic man" to the "ecological man", and also embodies the function of the risk distribution of the tort law, which is beneficial to the realization of the internalization of the negative externality of the environmental damage and the prevention of the environmental risk, and the lender is used as the lender. The introduction of the concept of pollution related people is also conducive to solving the problems left over from the history of environmental pollution control, such as soil pollution. The legalization of the lender's environmental social responsibility is mainly realized in two forms: one is the administrative responsibility that violates the regulations of the credit and environmental protection, that is, the lender violates the relevant financial supervision and the credit ring when he is engaged in the credit business. In the constitutive requirements, the main body of the responsibility is limited to the banking financial institutions. The main body of the responsibility investigation is the banking supervisory authority authorized by the laws and regulations, which embodies the regulatory relationship between the banking regulatory agency and the loan people, and not the environmental protection department. The relationship between the bank's environmental management, that is, this kind of administrative responsibility is not the environmental administrative responsibility. Secondly, in the illegality, the commercial bank violates the relevant regulations and policies of the credit, the policy and the financial supervision law in the process of credit. In our country, the credit environmental regulations mainly refer to the general rule of loan and money, and the green credit guide is equal to the financial "soft". "Law", and combined with the "hard law" of financial supervision, through the combination of soft and hard as the basis for accountability; again, the subjective elements of the lender in the administrative responsibility of the credit protection of the administrative responsibility to adopt the principle of fault imputation, but not subjective fault theory and the objective fault theory. Two is the civil tort liability in the environment, the constitutive requirements of the liability analysis is On the basis of the division of the person's identity of the lender's pollution behavior and pollution: for the polluter, the lender, as the guarantor of the security interests before the guarantee is realized, is properly supervised for the guaranty for the benefit of the guaranty, and when it is involved in the management and has the ability to act in a substantive effect on the borrower's pollution, the borrower is with the borrower. To constitute joint torts and undertake joint and several liability; after the realization of the security interest, the guarantor, as the operator of a guarantor (such as a contaminated site or other source of pollution), is the sole responsibility of the lender for the use of the person when using the person. The lender, as a polluter's environmental civil liability and the general environmental civil liability, is subject to the principle of imputation. The elements, actions, disclaimers, the principle of compensation and the limit are different, and the difference is that they can enjoy the guarantee benefit exemption by virtue of their special identity of the real right of security. In addition, the latent period of environmental pollution is incompatible with the limitation length of the legal environmental tort litigation in our country, in order to fill the damage and solve the pollution left over by the history. The purpose of the problem is that the provisions concerning the civil liability of the lender related to the soil pollution prevention and control law or other judicial interpretations should have the effect of retroactive effect. The violation of the full guarantee obligation is especially special compared with the general environmental civil liability. The fault attribution in the principle of imputation, because it belongs to the nonfeasance tort, must ask for the fault on the subjective element, but the fault judgment of the legal person or organization is not the subjective state of mind, but a kind of objective fault, that is, the legal obligation. In the case of behavior, the lender did not perform the inspection, supervision, report and appropriate measures to prevent pollution or possible pollution during the period of the relationship between the polluter; in the case of disclaimer, there is no fault exemption in addition to the reasons for the civil liability for civil liability in the general environment of the polluter, and the limit of compensation. As one of the theoretical bases behind its security obligation is the agreement between the income and the risk, in addition to the damage to the civil rights and interests of the specific subject and the damage to the environmental interests, the lender should be included in the consideration of the benefit of the credit business. The most direct way is to borrow the borrower from the borrower. With the determined percentage of the loan amount, the lender should be required as the lender of the polluter to bear the liability for damages under the circumstances of the liability of the polluter of the environmental tort, in the case of the responsibility undertook. In the new law and force, the author claims that the lender will not be the second of the polluter. Retroactivity, because another theory of security obligation is based on the theory of risk control, so that the specific obligation to perform at the time of pollution or discovery is only the subject that can control the risk, that is, the lender of the present as a pollute.

【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.281

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