环境权的内容辨识与实践路径考察——以典型案例为对象  

Identifying the Content and Examining the Practical Path of Environmental Rights:An Empirical Study on Typical Cases

作　　者：刘长兴[1,2] LIU Changxing(Law School at South China University of Technology)

机构地区：[1]华南理工大学法学院 [2]华南理工大学环境法研究中心

出　　处：《人权法学》2022年第3期35-50,148,149,共18页Journal of Human Rights Law

基　　金：广州市人文社会科学重点研究基地项目;华南理工大学中央高校基本科研业务费项目“粤港澳大湾区加快实现碳达峰和碳中和目标的路径研究”(ZKXM202102)。

摘　　要：环境权概念引领了环境法学理论的发展,并全面影响了环境保护的实践进程。但在权利保护机制的构建上环境权陷入了困境,特别是其法定化至今未能在我国法律上获得突破,而相关司法案例则可在一定程度上反映其实践状况和保护机制。通过人民法院发布的典型案例中对环境权相关概念的使用情况进行分析,可以发现司法实践中认定和保护环境权的基本情况:公共性环境权益仍是司法保护环境权的重点,同时不同类型的环境权益诉求在案例中都有不同程度的体现,特别是享有良好环境等新的权益内容被纳入了环境权益保护的范围;但从保护机制看,公共性环境权益保护仍应当通过公法特别是行政诉讼、环境公益诉讼途径,私人环境权益保护需要民事诉讼和行政诉讼的配合,而作为诉讼基础的实体法制度特别是环境行政法律制度建设任重道远。Since the concept of environmental rights was introduced into China, its social influence has become increasingly widespread, which directly advanced the practical process of environmental protection;it has also had a profound impact on legal research, leading the development in environmental jurisprudence. However, so far, there are some difficulties in the process of constructing the legal protection mechanism of environmental rights, and to some extent, it has fallen into a predicament, especially the idea of legalization has not been able to facilitate a substantive move in China "s legislative practice, and the key step from the concept of environmental rights to the concrete system of environmental rights protection has not been taken yet. This does not mean the concept of environmental rights has no influence on legal practice, but on the contrary, the judicial practice related to environmental protection has been significantly influenced by the concept of environmental rights, and the judicial cases involving environmental rights can reflect to a certain extent the current situation of environmental rights in practice and the degree of protection. A search of judicial cases with the keywords " environmental rights " and " environmental interests " demonstrates that there are a considerable number of cases in which the parties have claimed environmental rights and the judicial authorities have responded to some extent. The application of environmental rights in the typical cases issued by the People" s Courts reveals the basic situation of environmental rights in judicial practice, including the way they are used and their basic connotations. Specifically, based on the study of the application of the concept of environmental rights in judicial cases, public environmental rights and interests are still the focus of judicial protection of environmental rights. Decisions of administrative, criminal, civil and civil public interest cases all show the concerns on environmental protection or at least take the pu

关 键 词：环境权 权利内容 保护机制 典型案例 实证分析 

分 类 号：DF526[政治法律—民商法学]