In order to thoroughly implement the spirit of the important instructions of the general secretary and achieve the goal of carbon peak and carbon neutrality, the people's courts have carried out useful explorations and accumulated a series of unique experiences in line with the "double carbon" goal in trial and enforcement, but it is still necessary to further improve the judicial response guarantee for the "double carbon" goal. Guided by the thought of ecological civilization and the rule of law, the research group deeply grasps the spirit of the important instructions and decision-making arrangements of the general secretary, carries out in-depth theoretical exploration and extensive empirical research around the theme of "double carbon", systematically summarizes the measures and results of the people's courts to provide judicial services and guarantees for the realization of the "double carbon" goal as scheduled, studies and judges the problems and puts forward countermeasures and suggestions.
1. The practical significance of judicial services to ensure the "dual carbon" goal.
1.Fill the gap in climate change legislation at this stage. At this stage, although China has built a "1+N" policy system for carbon peak and carbon neutrality, the policy requirements have not yet fully risen to the legal level. The "dual carbon" work has obvious policy-oriented characteristics, mainly relying on national policies and some local legislation to standardize. In the face of the current situation of climate change legislation, the judiciary can be more flexible to fill the legislative gap and solve the problem of lagging legislation. First of all, the people's courts give full play to their adjudication and enforcement functions, try all kinds of carbon-related cases in accordance with the law, explore rules, summarize experience, and provide typical cases and judicial experience for legislation. Second, we should give full play to the advantages of the legal profession, actively study typical foreign cases related to climate change response, and explore and summarize useful experiences, so as to promote the improvement of China's relevant adjudication system and adjudication rules. Finally, judicial suggestions can be put forward in response to problems existing in the legislative field, and the legislature can be assisted in improving the relevant draft laws and enhancing the operability of the laws.
2.Climate change enforcement is becoming more and more standardized. At this stage, there are some deficiencies in climate change administrative law enforcement, which have not yet met the requirements of achieving the "dual carbon" goal. When carbon-related disputes enter the judicial process, the people's courts can force climate change law enforcement to become more standardized by determining the legal attributes of carbon emission rights, giving full play to the judge's discretion, and properly handling various types of carbon-related cases. First, it will force law enforcement agencies to strictly enforce laws and regulations on carbon peak and carbon neutrality. China's provisions on measures and responsibilities to reduce carbon dioxide emissions are scattered in laws and regulations, and courts can further clarify the conditions for the application of laws and regulations by invoking specific legal provisions in adjudication. Second, law enforcement agencies are forced to strictly enforce laws and regulations related to environmental impact assessment. By strictly dealing with the illegal emission of carbon dioxide caused by fraud and dereliction of duty in the approval process and implementation process of construction projects in accordance with the law, the administrative law enforcement agencies are urged to standardize law enforcement behaviors. Third, law enforcement agencies are forced to strictly enforce laws and regulations related to environmental monitoring. In accordance with the relevant laws and regulations on environmental monitoring, the court shall strictly punish the illegal acts of tampering with the monitoring data in accordance with the law, and urge the administrative organs to strictly enforce the law to ensure the authenticity and legality of the environmental monitoring data.
3.Cultivate the public's value judgment and internal recognition of climate change issues. As a key part of the rule of law, the judiciary can raise public awareness of climate change issues through coercive judgments, pay attention to the national goal of carbon peak and carbon neutrality, and help them cultivate their ability to make carbon-related value judgments. First, it can raise public awareness of climate change. Through judicial openness, the principles, basis and reasoning methods of judges' judgments can be understood and learned by the public, enhance public awareness, and advocate the public to help achieve the goals of carbon peak and carbon neutrality. Second, it can promote low-carbon actions by the public. Through judicial openness, we will guide the public to understand and practice the concept of green and low-carbon, form a green and low-carbon production and lifestyle, and then reduce the carbon emission intensity of terminal consumption, which will also promote the transformation of development modes in various fields such as energy, production, and transportation, and promote the implementation of carbon reduction policies.
II. The functional positioning of judicial services to ensure the "dual carbon" goal.
1.Accurately grasp the functional positioning and focus of the people's courts. The premise of the people's courts' services to ensure the realization of the "dual carbon" goal lies in accurately grasping the functional positioning and work priorities of the people's courts. Specifically, first, it is necessary to clarify the boundaries of the role of the court in serving the "dual carbon" goal. The scope of authority granted by law should be taken as the boundary, and the function of environmental resources adjudication should be extended to give full play, and the role boundaries should be determined at four levels: strengthening the "dual carbon" study, strictly abiding by the law, feeding back the legislative amendment, and improving the service mechanism. Second, it is necessary to set the work concept and focus of work in different time and space dimensions. From the perspective of time, it is necessary to be based on the present and face the future; From the perspective of space, it should be based on both domestic and international. Third, it is necessary to find a convergence point for the overall promotion of economic development and the response to climate change. It is necessary to start from the two fields of traditional industries and emerging business forms, and coordinate economic development and environmental protection with common but differentiated judicial concepts and judicial active models.
2.Make good use of judicial means to stimulate the role of market mechanisms. Fully stimulating the role of the market mechanism with high-quality trial and enforcement work is a powerful means for the people's courts to serve and ensure the realization of the "dual carbon" goal. The people's courts should grasp the new changes in the new era and provide judicial assistance for the steady advancement of reform. According to the order of entry of the participants and adjustment targets of the market economy, the people's courts should focus on providing differentiated and refined judicial services for the past, present and future roles, properly resolve conflicts and disputes, and properly hear cases such as enterprise restructuring and bankruptcy caused by policy adjustments, cases arising from the process of carbon emission registration, trading and settlement, as well as new types of cases such as carbon derivatives trading and green finance.
3.Coordinate efforts to address climate change and protect the ecological environment. Coordinating the promotion of climate change and ecological environmental protection is a realistic path for the people's courts to provide judicial services and guarantees for achieving the "dual carbon" goal. The people's courts should adhere to the new development concept, implement the concept and requirements of "protecting the ecological environment with the strictest system and the strictest rule of law" in environmental resources adjudication cases, increase the cost of environmental violations, and promote the all-round green transformation of development methods. Focus on the following aspects: first, actively promote the synergy of pollution reduction and carbon reduction, and realize the integrated deployment and promotion of the "double carbon" goal and the construction of ecological civilization; Second, it will focus on serving the regional governance of the river basin, strengthen coordinated and active justice, and provide judicial guarantees for the ecological protection and high-quality development of key river basin areas; Third, actively promote the "dual carbon" policy to the society and contribute to the creation of a green and low-carbon lifestyle.
4.Preventive justice measures are used to safeguard carbon sequestration capacity. The first is to comprehensively improve the carbon sink capacity of ecosystems. Implement the concept of restorative justice, and adopt various methods such as "replanting and regreening" forest restoration, "cutting and filling and introduction" mine restoration, "breeding and release" river restoration, and "sea sand backfilling" sea area restoration to help improve the carbon sink capacity of ecosystems. The second is to strengthen and standardize carbon sink trading. The Supreme People's Court clearly stipulates in the relevant judicial interpretations that the new liability method for the purchase of carbon sinks is a vivid embodiment of the judicial assistance to the realization of the "double carbon" goal, and at the same time, it should maintain a clear understanding of the advantages and disadvantages of purchasing carbon sinks, seek moderate judicial action, and strictly abide by the applicable conditions for the purchase of carbon sinks. The third is to explore the value realization mechanism of ecological products. It is necessary to pay attention to guarding the natural ecological security boundary, promote the safe circulation of green assets, fully reflect the economic value of the usufruct rights of natural resources and the right to use environmental capacity, and establish and improve the ecological protection compensation mechanism that can reflect the value of carbon sinks.
3. The main problems encountered in judicial services to ensure the "double carbon" goal.
1.The legal nature of carbon emission rights is disputed. The legal nature of carbon emission allowance is the theoretical basis and core of the carbon emission trading system. However, whether at the normative or doctrinal level, the core issue of the legal nature of carbon emission rights has not yet been determined. At present, there is still no clear definition of "carbon emission rights" in China's laws, and the relevant legislation has not clarified the legal attributes of carbon emission rights. The lack of consensus on the basic core issue of the legal attributes of carbon emission rights has also led to inconsistent practices in judicial practice, which has restricted the practice and development of the carbon emission trading system to a certain extent and affected the realization of the "dual carbon" goal.
2.The legal system for climate change response is not yet perfect. Addressing climate change is an extremely complex issue, which requires a correct handling of multiple contradictions and conflicts, such as control and development, present and future, domestic and international. Although the legislative models chosen are different, it has become a consensus of all countries to establish a scientific and complete legal system on climate change. The legislative plan of the Standing Committee of the 14th National People's Congress only lists "responding to climate change and carbon peak and carbon neutrality" as a legislative project that has not yet fully met the legislative conditions and needs to be continuously studied and demonstrated. The relevant legal provisions are scattered in a number of departmental laws, and the legal provisions are mainly principled provisions, which are not very operable, which brings many difficulties to judicial practice.
3.The system and mechanism of carbon emission allowance management and judicial enforcement need to be improved. First, the law enforcement methods and intensity of administrative organs need to be strengthened, the law enforcement methods need to be further enriched, and the fine standards are low. Second, the freezing of enterprise quotas affects the payment and performance of enterprises, and there is a risk of "cashing out with carbon". Third, after freezing the bank settlement accounts bound to the summary accounts of key emitting enterprises, the purchase of carbon allowances by key emitting enterprises will be restricted, thereby affecting the fulfillment of the obligations of key emitting enterprises. Fourth, the judicial enforcement measures and measurement units of carbon emission rights need to be fixed, and there are two different expressions of freezing and seizure in the implementation of carbon allowances, and the freezing period and quota settlement cycle are inconsistent. Fifth, the mechanism for entrusting the enforcement of emission rights has yet to be established, and the notices of assistance in enforcement issued by some courts are not standardized, and the methods of service are different.
4.There are a number of problems in the area of trial enforcement. First, the judicial preventive function has not been brought into full play. The precautionary concept of environmental justice is not popular, and the fields of preventive justice applied to carbon-related cases are unclear and the measures are insufficient. Second, the trial guidelines for carbon-related cases have not yet been issued. There is a lack of in-depth summary of the trial experience of carbon-related cases, and there has not yet been a judicial application standard directly oriented to the "dual carbon", and specific and clear adjudication rules have not yet been formed. Third, the volume of typical cases that can be referred to and applied is insufficient. There are various types of carbon-related disputes, but the total number of cases is limited, so it is necessary to discover some typical cases and give full play to the reference significance of influential carbon-related cases.
5.A specialized adjudication mechanism has not yet been established. First, there is a lack of uniformity in the grasp of the scope and scale of the case. Different understandings of the legal attributes of carbon emission rights and complex types of disputes affect the acceptance of carbon-related cases, and the types of carbon-related judicial adjudication of local courts are relatively single. Second, internal coordination and external linkage are insufficient. Centralized management is not scientific enough, affecting the coordination between the internal business divisions of the court, the coordination mechanism is not complete, affecting the cooperation between the court and other organs, and the information system is not perfect, affecting the overall linkage. Third, the concept of making up for the lag of carbon-related legislation with active justice needs to be improved, and the publicity of carbon-related justice in local courts is not extensive and balanced.
IV. Countermeasures and suggestions for judicial services to ensure the "dual carbon" goal.
1.The legal nature of "carbon emission rights" is defined from the perspective of the two-order theory. Carbon emission rights not only contain the public law characteristics of environmental protection and carbon emission control, but also reflect the private law connotation of autonomy of will and free negotiation. Under the shackles of the traditional thinking of "non-public or private", there is still a great deal of controversy over the legal nature of carbon emission rights, and it is difficult to achieve logical self-consistency between the pure public law attribute view and the private law attribute view. The legal attributes of carbon emission rights can be clarified from the perspective of two-order theory: vertically, carbon emission rights are defined as public law attributes before registration, and in principle as private law attributes after registration; Horizontally, the legitimacy of public power intervention in the carbon emission trading mechanism is clarified from the perspectives of institutional value, market risk, and normative system, highlighting the interweaving and equitable logic between public and private law in the carbon emission trading stage.
2.Improve the system and mechanism of centralized jurisdiction related to carbon affairs. The Opinions of the Supreme People's Court on Completely, Accurately, and Comprehensively Implementing the New Development Concept and Providing Judicial Services for Actively and Steadily Promoting Carbon Peak and Carbon Neutrality clearly states that a centralized trial system for cases conducive to actively and steadily promoting carbon peak and carbon neutrality should be established. The essence of environmental judicial specialization is centralized jurisdiction, and carbon-related judicial specialization is the transformation and upgrading of environmental judicial specialization. Therefore, it is suggested that in terms of territorial jurisdiction, civil and administrative cases arising from the national carbon emission allowance registration and trading markets established in Shanghai and Wuhan should be subject to centralized jurisdiction by the Shanghai and Wuhan courts. In terms of hierarchical jurisdiction, civil and administrative cases arising from the national carbon emission allowance registration and trading markets established in Shanghai and Wuhan will be tried by the intermediate courts in the first instance, and those involving local carbon emission trading markets will be tried by the basic courts. In addition, the Wuchang District People's Court of Wuhan City, Hubei Province has explored the centralized jurisdiction of carbon-related cases and the trial of carbon-related finance in Wuhan, and issued the "Opinions of the People's Court of Wuchang District of Wuhan City on Providing Judicial Service Guarantee for the Development of Carbon Finance Industry", which has also accumulated certain experience.
3.Under the "dual carbon" goal, China's foreign-related climate change litigation should be developed as soon as possible. At present, international climate negotiations are blocked, and some countries are eager to achieve their climate political goals through judicial means, which is an exogenous factor for China to develop foreign-related climate change litigation, while the setting of domestic "dual carbon" goals provides an endogenous impetus for the development of foreign-related climate change litigation. China's participation in foreign-related climate change litigation includes responding to the lawsuit, taking the initiative to file a lawsuit and submitting advisory opinions, among which the Chinese defendant responding to the lawsuit should make full use of procedural rules and substantive rules to protect China's legitimate rights and interests; Before initiating a lawsuit, you should carefully choose the type of case, the nature of the defendant, the method of prosecution and the applicable rules. In order to ensure the smooth development of foreign-related climate change litigation, China should take effective measures in terms of theoretical research, practical accumulation, and talent training.
4.Accurately apply the responsibility for ecological restoration by purchasing carbon sinks. The people's court guides the actor to restore the damaged ecological environment through the purchase of carbon sinks, which not only achieves the goal of ecological restoration, but also helps to achieve the "double carbon" goal, which is a vivid embodiment of the concept of active justice in environmental justice in the new era. Although the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Forest Resources stipulates the applicable conditions for the purchase of carbon sinks, its provisions on the order of application need to be further clarified, and there is room for discussion on the scope of application. From the perspective of the order of application, the restoration effect of in-situ "replanting and regreening" and off-site "replanting and regreening" is better than that of purchasing carbon sinks, so the application order of the two should take precedence over the purchase of carbon sinks. From the perspective of the scope of application, the interpretation limits the scope of application of the purchase of carbon sinks to cases of destruction of forest resources, and can be extended to other cases with carbon sink losses through analogous interpretation, but it is not appropriate to apply the purchase of carbon sinks in cases where there is no carbon sink loss.
5.Improve the system and mechanism for the judicial enforcement of carbon related matters with registration institutions as the core. As the core financial infrastructure platform of the national carbon market, the national carbon emission registration agency undertakes the functions of registration, trading and settlement of the national carbon market, and provides comprehensive management services such as carbon emission quota allocation and compliance for ecological and environmental departments at all levels across the country. The coordination and linkage between the registration agency and the judicial organ plays a key role in ensuring the healthy and stable development of the market. First, it is necessary to enrich the means of law enforcement, increase the intensity of law enforcement, increase reputation penalties and credit penalties, and raise the standard of fines. Second, it is necessary to improve the enforcement measures for the bank accounts associated with the national carbon market of enterprises in judicial enforcement, and prudently freeze the quotas of enterprises, so as to avoid the failure to fulfill the obligations of payment and performance due to the freezing of corporate bank accounts. Third, it is necessary to fix the judicial enforcement measures and measurement units of carbon emission rights, clarify that the judicial enforcement of carbon emission allowances is frozen, and clarify the period of freezing.
Hubei Provincial High People's Court and Wuhan University Joint Research Group, Moderator: You Quanrong Qin Tianbao).
*: People's Court Daily.