摘要
日本环境权说在立法、司法和环境行政实践中遭到了普遍怀疑和普遍拒绝。在环境权入宪的国会讨论中,支持派或主张把环境权"作为国家政策"加以规定、以"环境的义务"的形式规定,或主张仅仅把环境权的"精神"植入宪法,都不主张直接把环境权规定为宪法权利;反对派或认为环境权不宜进入宪法权利体系,或以与环境权相对应的责任义务不明确为由反对明确规定环境权,或认为规定环境权不如规定其他具体的人权,甚至认为讨论环境权入宪是误入歧途;折衷派认为环境权是一个需要"进一步探讨"的对象,其理由或为环境权内容含糊、环境保护立法定位未定,或为反对环境权入宪的观点也有道理。日本司法界拒绝环境权说的主要理由有(1)根据环境权的主体不明确性;(2)环境权的内涵不明确;(3)环境权这一概念多余。日本环境行政也没有采纳环境权的理念,而是贯彻了(1)环境"有限性"的判断安排法律政策;(2)用来自对环境整体性的积极反映的整体性思维指导环境政策安排;(3)以共同利益作为处理不同主体间关系的原则;(4)以职责——监督为环境行政系统开展工作的动力机制等原则。日本环境权说遭遇困局的原因出在:第一,萨克斯并没有向日本学界传授环境权的真"经",他的演讲没有回答什么是环境权,而是介绍了美国的环境公民诉讼制度,讨论了这个制度产生的合理性;第二,日本学界所"发扬"的环境权以私权环境权为代表,而这种挂环境标签的权利与日本的环境观不相容。
The environmental theory in Japan has been suspected and refused generally by the circles of legislation, jurisdiction and administration. When discussion was carried out on whether environmental fight should be put into constitution or not by the congress, ideas of members could be divided into three parties as approval, opposition and neutrality. Those who approved the i- dea claimed that environmental right should be regulated as ＇ national policy＇ and ＇ obligation of environment＇ , or clamed envi- ronmental right should be put into constitution just as a kind of ＇ spirit＇ , which means these members didn＇ t agree to have envi- ronmental right as a kind of right in the constitution. The opposition party claimed it was not appropriate to put environmental right into the system of constitution, or opposed to regulate environmental fight in clear terms because the obligation of environ- mental right is indefinite, or claimed that some concrete human rights should be regulated instead of environmental right, or even argued that the discussion on the topic was a mistake itself. The neutrality party claimed that environmental right need further dis- cussion, because the content of environmental fight was indefinite, or it had not been ranked in the legislation of environment pro- tection, or the idea of the opposition party made sense somehow. The reasons that environmental right was refused by the jurisdic- tion circle could be conclude as follows. First, the subject of environmental right was indefinite. Second, the content of environ- mental right was indefinite. Third, the concept of environmental right was unnecessary. The environmental administration didn＇ t accept the idea of environmental right either. Instead of that, firstly, environmental laws were arranged based on the judgment of ＇ limitation＇. Secondly, policies were directed by thinking environment as a whole. Thirdly, relations between different subjects were dealt with on the principle of common interest. Fourthly, ＇ duty - supervision＇ was taken as the power mechanism to carry out the work of environmental administration. It＇ s inevitable for the advocators of environmental right theory to meet dilemma in Japan. Firstly, the lecture given by Joseph Sax at the symposium held in Tokyo in 1970 had not taught the academic circle in Ja- pan what was environmental right. Secondly, environmental right was enhanced by Japanese academic circle as private right, which was incompatible with the natural view and environmental view in Japan.
出处
《法学论坛》
CSSCI
北大核心
2013年第3期86-101,共16页
Legal Forum
关键词
环境权
环境权说
环境义务
environmental right
environmental right theory
obligation of environment
