On the Choice-making of the Codification Mode and Structure of China’s Codification of Environmental Laws: A Comparative Law Perspective

서지정보

· 발행기관 : 동아대학교 법학연구소
· 수록지 정보 : 동아법학 / 104호 / 311 ~ 343페이지
· 저자명 : XU YIXIANG, Chen Quanbo

초록

In response to the duplication, conflict and value inconsistency among many environmental laws, China has initiated the compilation of an environmental code. The system of environmental laws is a field-specific legal system with administrative legal norms being the main part. Its codification requires considering the characteristics and deficiencies of the codification of administrative and field-specific laws, making reasonable choices in terms of two important aspects: mode and structure. The codification of China’s environmental laws should adopt a substantively compiled, open, and moderate mode. Environmental code is not only a simple summary of the relevant environmental legal norms, but also the integration of the system to achieve the coherence of values. In the source of law, the double source structure is adopted, that is, while compiling the environmental law code, some environmental laws are retained, and the openness of the code is maintained by establishing the connection between the code and the single law. In terms of structure, the Pandekten mode of civil code should not be mechanically applied. Instead, it should adopt a Dualistic-Structure Mode of General and Specific Provisions, in which general provisions take the dominant position. This means enhancing the function of the general provisions in systematizing environmental legal norms, thereby integrating the provisions of individual Parts. There is no need to set general rules for each individual Parts.

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