基於《民法典》綠色原則的意定綠色義務

Voluntary Green Obligations under the Green Principle of the Civil Code

《民法典》確立了綠色原則，但缺失自治性的實施規範。學界主張的法定義務、綠色原則解釋和拓展附隨義務的方案均存在著相當的侷限，有必要遵從合同固有的機理，建立意定綠色義務體系。資源與環境、生態的對象區隔和私法上環境債權的行使為意定綠色義務奠定了法理依據；關係性契約為綠色義務提供了合同自組織能力。綠色請求權－抗辯權有助於強化合同運行過程的綠色覆蓋，構建生態環境保護私法與公法的協同機制。意定綠色義務依託法律行為規範和解釋性任意規範；綠色合意應採用先合同意向、綠色預約、本合同明定義務的漸進式締約方式。基於綠色約定相對獨立的特點，合同履行中應採用抑制合同整體無效、樹立合同履行的共同行為理念；應引入綠色違約的再磋商義務，以維持綠色交易穩定性。

The implementation of the green principle in the Civil Code should strengthen the role of discretionary norms in regulating relationships involving environmental interests. The Civil Code contains relatively few green provisions, predominantly focusing on mandatory obligations, with a notable absence of discretionary norms. This results in a structural imbalance, hindering the integration of the green principle into the contract law framework, which is grounded in private autonomy. While scholars have proposed three pathways for implementing the green principle in civil law, these external approaches face significant limitations. The core issue is that these theoretical models emphasize the public law's coercive nature, without aligning green obligations with the private law mechanisms that govern contractual autonomy. Establishing green obligations by mutual agreement allows parties to design green action plans based on their own consent, thereby fostering autonomy in green initiatives and internalizing public law obligations within the private law system. The concept of voluntary green obligations under private law includes several key aspects. First, parties have the right to choose how to fulfill green obligations. They can design optimal environmental protection measures tailored to the contract's context, their ability to perform, and the available environmental technologies. Second, parties may agree on the standard of obligation performance, allowing them to set obligations that exceed statutory minimums. Third, parties may decide whether to perform the green obligations themselves or delegate them to third parties. Fourth, parties can negotiate substantive and procedural rights that directly relate to environmental protection. Voluntary green obligations embody the independent purpose, procedural nature, and instrumental rationality of green autonomy. They permeate the entire contractual process, including contract formation, validity, modification, performance, and breach of obligations. These obligations arise from a distinct approach that differentiates among resources, the environment and the ecology, focusing on resources as the subject of creditor rights. This represents the exercise of environmental rights within private law. Voluntary green obligations enhance green accountability throughout the contractual process through the use of green claims and defenses, aligning with policy objectives that encourage market-based environmental governance. To implement voluntary green obligations in contracts, flexibility in applying contract rules is crucial. First, these obligations should follow general legal rules of conduct and explanatory discretionary norms, encouraging parties to reference green model contracts when forming agreements. Green obligations can be progressively integrated into the main contract. Second, essential green clauses can be incorporated into both monetary and non-monetary obligations. Third, the accessory nature of green provisions to the main contract should ensure that the invalidity of a green provision does not void the entire contract. Finally, collaboration between debtor and creditor during the contract performance transforms the contract into a joint legal act for green obligations, with economic reasonableness as a guiding principle for green performance. In cases of breach specific to green obligations, parties should be required to renegotiate to maintain the stability of the transaction. Voluntary green obligations, as part of the green action system, reflect the inherent contractual mechanisms. Together with statutory green obligations, they form a multilayered structure that blends autonomy with legal compulsion. This normative framework of voluntary green obligations serves as a fundamental institution for advancing environmental goals within private law.