环境法制中软法治理研究

发布时间：2018-08-15 12:25

【摘要】：随着公共治理与协商民主等治理方式的兴起,软法研究也日渐成为显学。在法学和政治学领域都已有不少的论著。但在环境保护领域,软法概念还尚未进入环境法学者研究的视野,环境治理的现状要求我们必须更新环境法律观念,认真对待环境保护中存在的软法现象。当下环境保护中的公共治理的现状呼唤软法之治,同时,传统环境保护所采取的硬法规制模式在严峻的环境形势面前暴露出其种种弊端与不足,将日趋成熟的软法理论引入环境保护领域,借助软法自身的魅力与独特的优势,来实现环境治理方式与手段的多样性,解决目前硬法规制所不能到达的作为领域,不仅能推动环境治理目标的有效实现,也能开辟出软法研究的新领域,回应当前环境保护中公共治理的现实需要。本文运用比较的写作手法,首先阐述了国内外软法研究的现状和环境法制中研究软法的意义,进而对软法与软法治理理论进行概述,界定其概念、特征、价值、以及软法治理理论的兴起,然后论述了目前硬法规制模式在环境治理中的不足,通过对欧盟开放协调机制和日本公害防止协定等域外环境法制中软法治理成功经验的借鉴,肯定了我国环境保护中应当引入软法治理的必要性与可行性,并且进一步提出我国环境法制中软法治理模式的建构。在余论部分指出基于软法自身的局限性,其在环境治理中的亦存在一些弊端与不足,因此在环境治理中既要重视软法治理,也不能放弃硬法治理,与软法治理相匹配的环境治理体系应当是“软硬兼施”,有效的实现软法与硬法的协调与统一。唯有实现软法与硬法的对接与整合,才能真正在环境法制中使软法的作用与价值得到最大程度的发挥,在“软硬兼施”中彰显软法的生命力,从而推动环境法治目标的全面实现。
[Abstract]:With the rise of public governance and deliberative democracy, the study of soft law has become increasingly prominent. There have been many works in the field of law and political science. However, in the field of environmental protection, the concept of soft law has not yet entered the research field of environmental law scholars. The present situation of environmental governance requires us to update the concept of environmental law and seriously treat the phenomenon of soft law existing in environmental protection. The current situation of public governance in environmental protection calls for the governance of soft law. At the same time, the hard legal system adopted by the traditional environmental protection has exposed its shortcomings and shortcomings in the face of the severe environmental situation. The maturing theory of soft law is introduced into the field of environmental protection. With the help of the charm and unique advantages of soft law itself, the diversity of the ways and means of environmental governance is realized, and the field that cannot be reached by the system of hard laws is solved. It can not only promote the effective realization of the goal of environmental governance, but also open up a new field of soft law research, and respond to the practical needs of public governance in environmental protection. Using comparative writing techniques, this paper first expounds the present situation of soft law research at home and abroad and the significance of studying soft law in environmental legal system, and then summarizes the theory of soft law and soft law governance, defines its concept, characteristics and value. And the rise of soft law governance theory, and then discusses the shortcomings of the current hard law system model in environmental governance, through the European Union open coordination mechanism and Japan environmental pollution prevention agreement, such as the successful experience of soft law governance in the extraterritorial environmental law system. This paper affirms the necessity and feasibility of introducing soft law governance into environmental protection in our country, and further puts forward the construction of soft law governance mode in our country's environmental legal system. In the last part, the author points out the limitation of soft law itself, which has some disadvantages and shortcomings in environmental governance. Therefore, it is necessary to pay attention to soft law governance as well as to give up hard law governance in environmental governance. The system of environmental governance, which is compatible with soft law governance, should be "both soft and hard", and effectively realize the coordination and unification of soft law and hard law. Only by realizing the docking and integration of soft law and hard law, can the function and value of soft law be brought into full play in the environmental legal system, and the vitality of soft law can be demonstrated in "both soft and hard". In order to promote the environmental rule of law the goal of the full realization.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.68

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