| 英文摘要 |
Under background of ''30-60'' target, the market mechanisms such as emission trading scheme have increasingly become an important lever for China to achieve low-carbon economic and social transformation. Market economy is a law-ruled economy, which requires China to establish and improve relevant legal system for emission trading scheme urgently. Unfortunately, the promulgation and implementation of the Civil Code have not effectively addressed the ownership issues of various environmental rights, including carbon credits. The main types of transactions in emission trading scheme are based on carbon credits in the voluntary emission reduction market, as well as the carbon allowance based on the Cap-and-trade market. However, unlike carbon allowance that rely entirely on the creation and allocation of public authorities, carbon credit is issued after appropriate voluntary emission reduction projects carried out by qualified private participants. In the context of the lack of legislation on legal attributes of carbon credit and its voluntary emission reduction market, there are significantly different viewpoints in the domestic academic community regarding the legal attributes of carbon credit. The study evaluates theoretical theories by setting three criteria: appropriateness, feasibility, as well as functionality, and finds that: The private rights theory represented by usufructuary rights does not meet feasibility criteria under the current civil law's property rights system, and the public rights theory represented by administrative regulatory power cannot clearly answer the private rights attributes of carbon credit, which results in its defuntion ality in adjusting legal relationships related to carbon credit acquisition and trading among private entities. The mixed property rights theories are not practical in China since they require the reform of the property rights system in the the current civil law. The two-stage theory seems to meet the feasibility and functionality criteria required for property rights confirmation, but it cannot respond to the inherent characteristics of carbon credit and faces the dilemma of appropriateness. By the comparative analysis, the legal attribute of carbon credit should be defined as quasi property rights. The definition of the legal attributes of carbon credit plays an important guiding role in improving the judicial protection of China's voluntary emission reduction market. It is related to the basis of the plaintiff's right to sue and the choice of remedies. Moreover, it is the basis for the judiciaries to discern the nature of the legal relationship of the case, to determine the method of allocating the responsibility of the involved parties, and to clarify the scope of responsibility in hearing cases, and making judgments. It is necessary for the judiciaries to apply the procedural rules recently issued by the Ministry of Ecology and Environment, such as the voluntary emission reduction market registration and public disclosure, as the basis for judging the changes of carbon credit ownership, the eligibility determination of trading entities, and liability for breach of contract related to carbon credit trading disputes. In response to carbon credit guarantee dispute cases, the judiciaries need to play a further proactive role in determining the actionability of the case, determining the the endorsability of the carbon credit and its protection modes in hearing the financing guarantee cases For cases involving the carbon credit claims, the judiciaries need to properly address legal issues such as the enforceability of judicial freezing, disposal of property value, and the order of debt repayment and clearance of carbon credit. |
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