SPECIAL COLUMN ON MARXIST LAW SCIENCE

The Value Orientation of and Institutional Arrangements for the Market Entry System of RuralCollectively-Owned Commercial Construction Land

Zhao Hongmei

Abstract:The market entry of collectively-owned commercial construction land has been an important phenomenon of economic reform in China in the past 20 years. The 2019 Amendment to the Land Administration Law makes a breakthrough mainly in the newly added Article 63 on the market entry of collectively-owned commercial construction land, but still contains no clear and specific provisions on some key issues involved. The most influential proposition on these issues can be summarized as the “rights restoration theory”. This article proposes and argues for an “interest compensation theory” on the basis of a debate with the “rights restoration theory”, and explains how these two theories can be tested and applied in practice. The “rights restoration theory” holds that, firstly, the essential attribute of collective land ownership is private ownership, and, secondly, collective land ownership should be completely equal with state land ownership. Based on the above propositions, this theory further holds that the value of the market system of collectively-owned commercial construction land mainly lies in its restoration of the inherent right of collective land ownership that had been deprived and suppressed in the past, and in its support of the full release of the economic benefits carried by the restored collective land ownership. This author holds that, firstly, the fundamental purpose of collective land ownership is to realize public interests and the common interests of collectives, as a result of which it carries the basic function of public administration. Therefore, the essential attribute of collective land ownership lies in its public nature, but certain private interests should also be taken into consideration. Secondly, there is a fundamental difference in content between state land ownership and collective land ownership in China. The two are actually not on the same level: state land ownership is absolute, complete, and relatively rich in content, while collective land ownership is subject to many limitations, with its final fate determined by the state, and therefore lacks absoluteness and integrity. Based on the above analysis, this paper further holds that the value of the market entry system of collectively-owned commercial construction land lies not in the restoration of rights, but in the compensation of interests, which is the compensation of the interests of the collective land ownership subject to limitation for the public interest and the collective common interest, that is to say, to give the collective land owners certain economic privileges in the form of planning concessions to encourage them to better realize the mission borne by collective land ownership, and at the same time give due consideration to the private interests of members of collectives. Therefore, the state should, according to the strength of the public interest and collective common interest missions carried by collective land ownership, levy different proportions of land value-added income adjustment funds from collective land owners and limit the expenditure from the market income from collectively-owned commercial construction land.

DEVELOPING A SYSTEM OF LAW SCIENCE WITH CHINESE CHARACTERISTICS

The Chinese Discourse System of Criminal Law with Chinese Characteristics: Contribution,Limitations and Improvement

Jiang Min

Abstract: The development of criminal law in the PRC has gone through periods of founding, depression/stagnation, recovery, and prosperity. So far, great achievements had been made and an independent discipline and a discourse system have been established. However, the research paradigm, the content of discourse and the influence of discourse power of the current Chinese criminal law reflect the serious limitations of and huge challenges faced by its discourse system. The seemingly prosperous criminal law research and the immense amount of research results in China are mostly repetitive or nonoriginal outputs and cover up the structural deviation of the discourse system of criminal law and the huge challenges faced by it. In terms of international academic influence, the discourse system of Chinese criminal law has not yet provided the world with any useful Chinese experience. With a low export rate, it is almost in a situation of “aphasia” or “speechlessness”; in terms of domestic influence, the number and quality of the responses to contemporary new issues by Chinese criminal law need to be improved. There are few localized and original concepts and theories. Imported foreign discourses are not acclimatized and, as a result of the high import rate, Chinese criminal law has become a market of foreign criminal law discourses. The rich knowledge contained in the history of Chinese criminal law has not been paid attention to and this field has almost become a “foreign chapter” of academic research. As a result of the repetitive production of contents, perspectives, methods, and concepts, Chinese criminal law has no discourse power both at home and abroad. The discourse power that determines the influence of the academic discourse system of criminal law is a kind of non-power influence, which means that it can be obtained not by force, but by the quality of academic discourse itself. To overcome the difficulties and meet the challenges faced by the discourse system of Chinese criminal law, we should first improve the academic quality by strengthening the subject consciousness of criminal law. The improvement of the subject consciousness of academic discourse involves academic innovation through academic subjects to avoid repetitive production; and improving the import mode of the discourse of criminal law, that is, fully analyzing the concepts and principles of foreign criminal laws on the basis of in-depth and comprehensive understanding and mastering the knowledge, introducing them discriminatively and localizing them in light of the situation of China. In addition, we should also make use of the local resources of China’s reality and history to refine the discourse supply. On the premise of improving the academic quality, we should strengthen the academic self-confidence of criminal law, actively provide Chinese solutions to the problem of globalization of crimes and common problems faced by criminal laws of various countries, and enhance the international communication validity of Chinese criminal law research results by “communicating with foreign countries through language”, building international exchange platforms and actively participating in international criminal law dialogue.

THEME DISCUSSION: The Crime of Sexual Assault

Limited Application of the Evidence of Human Character of the Victim in Rape Cases

Song Yuansheng

Abstract: In rape cases, the prosecution and the defense are both faced with certain difficulties in the application of evidence. The secrecy of the specific circumstances involved in rape cases and the privacy of the relationship between the victim and the defendant lead to the one-to-one characteristic of the relationship between the evidence of the victim and that of the defendant. Meanwhile, the emergence of new features of rape cases in recent years, mainly involving changes in the type of object of rape crime, including the rape of a person in a specific identity relationship with the defendant (such as a lover or an ex-wife) or the rape of a person in a specific profession (such as sex worker or paid escort), has led to more troubles in the application of evidence in these cases. This change brings not only new threats to women but also a higher risk of a miscarriage of justice to the defendants or suspects in rape cases. This is because, in the above types of rape, there is a higher possibility of extortion between the victim and the defendant due to failed negotiation on the price of sex service or retaliation between a man and woman due to failed relationship. The voluntariness of the victim in rape cases is immediate or changeable. For example, the victim may give her consent to the defendant before the sexual intercourse but withdraws the consent when the sexual intercourse actually happens. In particular, there is actually a kind of half-consent behavior in rape cases. To let only the defendant bear the legal consequences in such cases is also a kind of judicial injustice, which is not in line with the purpose of criminal law evaluation. This brings great challenges to the evidence-collection by investigation organs and the judicial decision by the judges. At the same time, it also made it difficult for criminal defense lawyers to put forward effective defense opinions. Therefore, even if the “rape shield clause” has the special value of protecting women’s rights, it will lead to the risk of infringing on the defendant’s right to a fair trial, and result in miscarriages of justice by investigation and judicial organs if it is introduced into China in its strict form without exception. Therefore, China should not adopt the model of the “rape shield clause” that completely excludes exceptions. Based on the need of balancing the interests between the defendant and the victim to the greatest extent, as well as the need of ascertaining the facts in rape cases and protecting the defendant’s rights to effective defense, equal trial or confrontation in court, China should establish the rules of evidence relating to the victim’s human character on the basis of drawing on the relevant rules in the British and US evidence law and adopt a model that applies to the victim’s human character evidence only in exceptional cases, that is, a model of limited application of the “rape shield clause”.

Conflict and Balance: Protection of Testimony of the Juvenile Victim and the Exercise of the Rightto Confrontation by the Defendant

Yin Lingran

Abstract: During the past several decades, laws on the age of consent in Europe have been amended continuously. This research collects the data on the latest laws on the age of consent in Europe, compares them with the corresponding laws in the last century, and reveals several trends. The first trend is to raise the minimum age of consent for sex, and there is a harmonious development as well to prevent pedophilias from having sex with children by crossing national borders. The second trend is to use gender-neutral language in legislation to equalize the age of consent for sex for both heterosexuality and homosexuality, and for both males and females. The third trend is to strengthen the regulation of sex under authority relationships in more and more areas. The Amendment (XI) to Chinese Criminal Law has added a new crime - sexual assault by persons with care duties, which sets the age of consent for sex in authority relationships (such as the relationship between teacher and student, between doctor and patient, and between guardian and ward) at 16. It provides more protection to children from being sexually exploited by authoritative persons, so in this regard, this new amendment is a tremendous progress in the Chinese legislation on the age of consent for sex. However, the Chinese law on the age of consent for sex still has room for improvement and the European legislative practice provides a good example for China in this respect. First, the normal age of consent for sex is too low and cannot punish foreign pedophilias who take advantage of this low age to have sex with Chinese children that are at or above the age of 14. Second, male adolescents above the age of 14 are considered competent to have sex with any person, including a person in authority, and this is disadvantageous to the protection of male adolescents under the age of 18. Third, the current age of consent for sex in a relationship of authority is 16. As a result, children above the age of 16 but under the age of 18 are excluded from the special protection. The corresponding solutions include the followings: first, to use gender-neutral language in the legislation on the age of consent for sex, so that the age of consent for sex will be applied with no distinction between boys and girls, or between heterosexuals and homosexuals, and to raise the normal age of consent for sex to 16 and the age of consent for sex in a relationship of authority to 18. Although China has no tradition of discriminating against homosexuals and Chinese legislation has never made a special distinction between heterosexuals and homosexuals, the current gendered language in sexual offense legislation does lead to different legal consequences for heterosexuals and homosexuals, and for males and females. The Chinese academia believes that technically it’s not difficult to adopt a gender-neutral language in legislation. All we need is for the legislators to change their mindset. In addition, according to the current legislation, if a boy above the age of 14 but under the age of 16 has consensual sex with a girl under the age of 14 in China, he will be criminalized as a rapist if the sex occurs often, or causes pregnancy. This is disadvantageous to the future development of the boy who is under the age of 18 and still needs special protection. The defense of ‘age of similarity’ adopted by most European countries is a good solution and it only requires two elements to exculpate the boy: the sex is consensual and their age discrepancy is within a certain limit. Once adopted, the age similarity defense is consistent with the Chinese judicial policy of “moderate and cautious intervention” in dealing with consensual sex between teenagers.

Normative Analysis of “Caring Responsibilities” in the Crime of Sexual Assault by Personswith the Duty of Care in China and Germany

Zhao Guannan

Abstract: Existing analyses by Chinese scholars of the duty of care in the crime of sexual assault by persons with the duty of care have such prominent problems as inaccuracy in specific judgment and lack of clarity in substantive meaning and core elements. If applied to criminal judicial practice, it may lead to the confusion of standards and wrong conclusions. As a reference, Article 174(1) of the German Criminal Code clearly stipulates that a person with the duty of care that commits the crime of sexual assault on a person under his care is the person who performs sexual acts with “a person who is entrusted to him for upbringing, education or care”, “a person who is his subordinate within a service or employment relationship, by abusing the dependence associated with the educational, care, service or employment relationship”, and “a person who is his biological or adopted descendant or the biological or adopted descendant of his spouse, life partner or a person with whom he lives in a quasi-marital relationship or quasi-life partnership”. In the specific forms of care, family ethics and sexual morality should be given priority in parentchild and family relationships, which have abstract, the most rigorous, and the most specific identification and presumption. The relationships of upbringing and day-to-day care are the most extensive and most common, providing the foundation and backbone of caregiving. If a relationship of upbringing and day-to-day care cannot be identified, an education or employment relationship that has lower standards, but should also contain elements of the abuse of dependent relationship, can be considered. On this basis, the essence of the duty of care is that the caregiver oversees and guides the lifestyle and spiritual and psychological development of the person under care, who is dependent on the caregiver. A sexual relationship between the caregiver and the person under care distorts the relationship of care and alienates the dependent relationship, essentially violating the sexual autonomy of the underage victim. The standards of personal care concern the personal relationship rather than the property relationship, attach importance to the spiritual relationship rather than the material relationship, and focus on psychological dependence rather than financial dependence. As for the specific types of duty of care stipulated in the Chinese Criminal Law, a general formal judgment can be made based on the obvious and strict normative attributes of and distinct legal provisions on the duties of guardianship and adoption. The duties of nursing can be regarded as narrowly defined duties of care, which play a fundamental role in the specific type of duty of care. Education in school is similar to the relationship of education in German Criminal Law. For the duties of education, training, and health care, when it is difficult to identify personal care, a determination can still be made on whether there is an abuse of the relationship of employment and dependence, thereby identifying the existence of the duty of care at the level of employment relationship.

Normative Legislative Jurisprudence: Theoretical Space and Basic Structure

Pei Honghui

Abstract: Legislation is of great importance to modern society, but the legislative theory is in a marginal position in the contemporary theoretical intellectual landscape. There are three reasons for this phenomenon: first, with the dichotomy between facts and values and the rise of positivism, the question of values has been excluded from scientific research; second, contemporary jurisprudence has taken an epistemological turn, focusing more on descriptive theories, and the practical philosophical issues related to legislation have declined; third, with the Enlightenment value of freedom being positivized through the constitution, the question of legislative values is considered solved. Even in such an intellectual context, the legislative theory is still fragmented and preserved in the fields of sociology of law, policy science, legal dogmatics, and normative ethics, but these scattered legislative studies in different fields have significant methodological limitations due to the dichotomy between facts and values, and none of them can develop an independent legislative theory. There are major problems with the empirical research program itself, and the theory proves that the description of facts is inseparable from the evaluation of values, which has a constitutive significance for the former, and that there is a fusion relationship between facts and values. The key point of the fusion of facts and values is that facts can induce the creation of norms through differentiated facts, and legislation as a kind of creation is precisely at the intersection of facts and values, where discrete disciplines and categories are fused in legislative action. On this basis, we can refine the initial structure of a normative theory of legislation, which does not need to include all the details of legislation, but rather a framework structure that integrates facts, values, and norms and provides the basic criteria for real legislative action. A normative legislative theory should have at least four levels: justice, purpose, will decisions, and certainty, among which justice addresses the basic value framework, purpose addresses the specific goals of legislation, will decisions come into play when justice and purpose are in dispute, and certainty is mainly concerned with the interface between new legislation and the existing normative system and the operability of law. The factual element can be said to be pervasive in every aspect, but its interface with norms occurs mainly in the “purposefulness” and “will decisions” aspects. In such a framework, various knowledge resources can be systematically organized. On this basis, we can continue to provide a more detailed criterion for various actions involved in legislative work.

THE ORETICAL FRONTS

Normative Form and Theoretical Logic of the Self-declaration ofthe Legal Validityof the Constitution

Wang Shitao

Abstract: The supreme legal validity of the constitution cannot be confirmed by a higher law. As a result, a normative structure of self-assertion of constitutional validity has been developed, leading to the logical problem of self-verification of the supreme legal validity of the constitution. The self-declaration of the supreme legal validity of the constitution can only be based on the written constitution of a country. However, not all written constitutions in the world have stipulated their own legal validity. Of course, the norms of the supreme legal validity of the constitution may exist in an implied form. Therefore, the validity of the constitution does not depend entirely on the normative form of self-proclamation. A total of four constitutions have been adopted in China since the founding of the PRC, but only the fourth constitution, namely the 1982 Constitution, stipulates its own supreme legal validity. The norms of self-proclamation of constitutional validity in major western countries exist in a concealed form. There is no constitutional code in Britain, so the self-declaration of the supreme validity of the constitution is neither necessary nor possible. From the 1791 Constitution to the 1958 Constitution, French had always retained the meaning of the classical constitution, specifically referring to the regime form of the national political structure. Therefore, the supreme legal validity of the constitution is not the content of the constitution. Germany has taken “human dignity” as the primary clause of its Basic Law after World War II, and established the supreme validity of “human dignity” rather than German Basic Law itself. The constitution of the United States established the supremacy of federal law over state laws, not the supremacy of the constitution over laws. The supreme legal validity of the Constitution of the United States is established by judges through judicial interpretation in constitutional review cases. In theory, although the validity of the constitution directly originates from constitutional norms themselves, the source of the validity of the constitution is considered to be beyond the constitutional norms. It can either originate from the absolute will of the sovereign or be attributed to the initial consent of the “meta contract”. However, the former resorts to the value of human rights after the absolute will of the sovereign was dispelled; the latter turns to the practical utility because the initial consent was falsified. Taking Kelsen’s “basic norms” as the superior norms of the constitution solves the logical problem of the self-proof of the constitutional validity, but could not achieve the ultimate traceability of normative validity. Hart’s “recognition rule” solves the problem of unlimited backtracking of legal validity, but violates “Hume’s law”, namely, one can’t derive an “ought” from an “is”. Kant’s “natural rule” dissociates the compatibility between the supreme legal effect of the constitution and the lower legal norms from the logical self-consistency, and attributes the origin of the validity to the traditional moral force - a given value framework that is accepted without proof. According to Alexey’s theory of tacit declaration of legal correctness, the tacit form of the norms of constitutional validity will solve the logical problem of self-confirmation of constitutional validity without denying the constitutional validity itself.

A Market Regulatory Theory in Response to Business Model Innovation

Song Yahui

Abstract:Business model is changing rapidly under the modern market economy, but the legal system has historically been very slow to respond to such changes. The main cause of this problem is the stability of the legal system and the written laws, which makes it difficult for them to adapt to new things. This paper focuses on the question of how regulatory law should respond to the innovation of business model. Existing researches show that scholars at home and abroad have conducted in-depth studies on the topic of adoption of new regulatory approach and the choices of regulatory tools in response to the challenges of “market failure” and “regulatory disruption” caused by technological innovation and business model innovation. However, the study on the general regulatory analysis framework in response to the business model innovation is relatively weak. As an important breakthrough, the recent research on the “three-step analytical framework under the principle of regulatory neutrality” from the perspective of methodology has filled in the gap and promoted the development of the new academic branch of regulatory law from germination to maturity. However, it must be admitted that this analytical framework is incomplete. Any foundational analytical framework needs to be developed and further improved in practice and academic debate. In the face of new business models emerging endlessly under the condition of market competition, a general analytical framework should cover at least the following three questions: (1) The first question that legislators and regulators should answer is whether a new business model needs to be regulated by law, which is the threshold question of market regulation. (2) After entering the threshold, the second question is how to choose between “following the old legal system” and “building a new system” in the process of making and application of law. (3) If a new regulatory regime is needed, the question is how a new legal system can be built in terms of legislation. A complete analysis framework can be formed only by covering the three interrelated regulatory questions of “whether legal regulation is needed, whether the old regime can be used, and how to create a new regulatory regime”. Based on existing works, this paper supplements the substantive perspective of market regulation, and extends the regulatory framework upward and downward to cover the three general questions mentioned above. It also strengthens the interaction between the innovation-friendly principle and the analytical framework. In this way, it proposes a new and upgraded analytical framework that not only pursues the integrity of the regulatory analytical framework but also follows the dynamic feature of business innovation. This newly developed framework aims to construct an innovation-friendly regulatory regime with the ability of flexible response by building a dynamic feedback cycle.

From “Single Labor Relationship” to “Dual Labor Relationship”: Reconstructing the RegulatoryModel of Shared Employment

Fan Wei

Abstract: China adopts the “single labor relationship” model of standard labor relations to regulate multi-party employment patterns in labor law and practice, which means an employee could have only one employment relationship with one employer, and his or her relationships with other employers are excluded from the application of the labor law. Under the impact of COVID-19, enterprises begin to share employment, namely those with surplus labor share through contract their workers with those that are in shortage of labor. The Notice of the Ministry of Human Resource and Social Security has followed the “single labor relationship” model in regulating shared employment. The balance between security and flexibility needs to be maintained in regulating labor relations. However, shared employment is based on the need to cope with the epidemic emergency. The “single labor relationship” regulatory model meets the need of enhancing the employment flexibility of enterprises, but ignores the safety protection of workers. This article proceeds along several fronts. Firstly, shared employment is in essence the embodiment of the concept of shared economy in the field of employment. It is the sharing of the right to the use of labor and a flexible way of allocating human resources by employers. Secondly, the “single labor relationship” regulatory model of shared employment is justified neither in theory nor in practice. Shared employment is neither secondment nor alteration of employment contract. The “single labor relationship” regulatory model deviates from the subordination standard for the identification of labor relations by denying the labor relationship between the employer with labor shortage and the shared employee, and ignores the value of workers’ protection, resulting in inadequate protection of workers’ rights and interests. Thirdly, from the perspective of the value of labor protection and the subordination standard of labor relations, a shared employee has a dual labor relationship with both the employer sharing its surplus labor and the employer with shortage of labor. China can reconstruct the shared employment system in the following two aspects: on the one hand, we can enhance employment security by strengthening the restrictions on the employment sharing agreement between employers, setting up administrative recordation procedures for shared employees, giving the shared employees the right to rescind the sharing agreement, restricting disbenefit alteration, and establishing the joint and several liabilities of the employer sharing its surplus labor and the employee with shortage of labor; on the other hand, we can maintain employment flexibility by appropriately expanding applicable circumstances of shared employment, exempting the employee with shortage of labor from some obligations, and connecting and integrating the dismissal right of the employer sharing its surplus labor and that of the employer with shortage of labor. This article criticizes the traditional “single labor relationship” regulatory model of multi-party employment in China from theoretical and practical perspectives, and reconstructs the regulatory system of shared employment from the perspective of dual labor relations, with a view to realizing the flexicurity of employment.

REVIEW OF FOREIGN LAWS

The Conceptual Dilemma of Legal Pluralism: Connotation, Causes and Theoretical Impact

Zhao Yingnan

Abstract:Legal pluralism is a social fact that one social group has two or more sets of valid laws to regulate its members’ social behaviors. It is a common legal phenomenon widespread in our social life. As the research on legal pluralism matures, many scholars in this field come to concentrate on the concept of legal pluralism itself. It is an issue of importance because the questions of what could be understood as law in empirical studies and how we understand the multiple legal orders in one society largely depend on how we answer the question of what law is. Inspired by this problem consciousness, leading scholars in this field such as John Griffiths and Sally Engle Merry discovered one paradox underlying the concept of legal pluralism. They came to realize that they had been trapped in a dilemma: on the one hand, law refers to not only state law, but also other kinds of social norms; but on the other hand, the boundary between non-state laws and other social norms is not clear, as a result of which the concept of law becomes too broad to be useful. John Griffiths, Boaventura de Sousa Santos and Guenther Teubner, among others, try to provide a theoretical framework that they claim could make a clear distinction between law and other social norms while at the same time discern other types of law besides state law. But all of them have failed to achieve what they have promised. Thus, many scholars insist that we should give up defining law, abandon the concept of legal pluralism, and accept the concept of normative pluralism instead. However, this essay argues that the dilemma of legal pluralism originates from the fact that when scholars try to define what law is, they tend to provide a universal and necessary claim, ignoring law as a folk concept. Folk concepts are embedded in various historical and actual contexts and cannot be expressed clearly by language. Bringing this point to light has double theoretical significance. First, with respect to legal pluralism scholarship, to focus on the law as a folk concept means to confirm that it is possible and necessary to define the concept of law, but not possible to make universal and necessary claims about law. Second, with respect to general jurisprudence, focusing on the law as a folk concept would pose serious challenges to the prevailing analytical approach that stresses the exploration of the essential and necessary nature of the concept of law. This reminds us to reflect on the established theories of legal pluralism and to explore a new approach to general jurisprudence. In the historical period in which China become increasingly involved with the international community, reconsidering the theoretical framework of legal pluralism and analyzing its deep dilemma at the meta-theoretical level would be of great theoretical and practical significance for us to have a thorough comprehension of foreign laws and rule of law in general in this world.

INTERNATIONAL LAW ISSUES

Construction of State Responsibility for Environmental Damage Caused by Multinational Corporations

- a Discussion against the Background of the “Carbon Peaking and Carbon Neutrality” Goals

Shao Lili

Abstract: The compensation liability for environmental damage caused by multinational corporations under current international law and domestic law faces many dilemmas and it is difficult for this liability to cover all the claims for remedies for environmental damages caused by multinational corporations. The liability of multinational corporations should be combined with state responsibility for environmental damage caused by multinational corporations, so as to realize functional complementation. The state responsibility for environmental damage caused by a multinational corporation stems from the environmental supervision responsibilities (powers and obligations) of the host country and the home country relating to the multinational corporation. As countries accelerate the construction of carbon markets, multinational corporations regard carbon emissions as “goods” that can be traded across borders, while neglecting to manage them as public goods that can provide important guarantees for life and health. The state should supervise multinational corporations in their fulfillment of the obligation to reduce carbon emissions that have the value of guaranteeing the survival of mankind, which should not be traded as goods. The state liability for environmental damage caused by multinational corporations is based on international legal theory, practical needs, and international cooperation. It consists of liability for damages and the liability for supplementary compensation. The former is the liability for the environmental damage caused by a multinational corporation borne by a state that has failed to perform or to properly perform its environmental supervision obligations relating to the multinational corporation, which should be commensurate with the state’s acts and faults as the causal forces of the damage and loss; while the latter is the liability for supplementary compensation for the environmental damage caused by a multinational corporation borne by a state that has fulfilled its environmental supervision responsibilities but failed to prevent the occurrence of the environmental damage and the amount of the damages paid by the multinational corporation is not sufficient to compensate for the loss suffered by the injured party . In order to implement the state responsibility for environmental damage caused by multinational corporations, the state’s obligation to prevent and to compensate for such environmental damage should be established in international investment agreements, and the “foreign-related environmental tort liability clause” should be added to relevant domestic laws and administrative regulations to realize the extraterritorial effect of domestic environmental laws. State responsibility is the nexus between the realization of a low-carbon economy and global justice. In the context of “carbon peaking and carbon neutrality goals”, the state should take the initiative to shoulder its international responsibility for addressing climate change and develop a low-carbon economy. Only in a green economy can the organic combination of environmental protection and human rights be achieved.

“Carbon Neutrality” Legislation: EU Experience and Its Implications for China

- Taking the “Principle - Rule” as the Main Line

Feng Shuai

Abstract: Compared with the “following” or “supporting” legislation in other countries, EU “carbon neutrality” legislation is more worthy of reference. On the one hand, the concept of “carbon neutrality” originated in Europe and was the external manifestation of the EU’s low-carbon development. On the other hand, “carbon neutrality” has given birth to the EU’s Carbon Border Adjustment Mechanism, which prompts China to develop a similar rule system and emission reduction standards. Taking the “Principle - Rule” as the main line, the EU’s “carbon neutrality” legislation can be simplified into two parts: principles and rules. In terms of principles, the EU’s “carbon neutrality” legislation takes environmental integrity, flexibility and “do-no-harm” as the starting point, advocates systematization of environmental governance, emphasizes the matching between legal pursuit and social reality and takes capacity matching as the bottom line to form a distinctive legislative direction. In terms of rules, it focuses on carbon trading, financing, and monitoring, reporting and assessing (MRA), highlights the importance of carbon trading on emission reduction and establishes a relatively comprehensive legal system with green finance and fiscal transformation as the pillar and government supervision as the guarantee. China is actively exploring relevant legislation. While basing itself on its own national conditions, existing legal system and economic and social development status, it can draw on the advanced experience of the EU. Firstly, in terms of basic principles, it should establish two “bundles” of principles: one relating to the community of life for man and nature, and the other relating to collaborative governance. The former includes the basic principles of systemic governance, multilateralism and common but differentiated responsibilities, while the latter focuses on the basic principles of public participation, balance and coordination, and international cooperation, adheres to the harmonious coexistence of man and nature and explores the role of the government and non-governmental actors in the interaction between the central and local governments. On the above basis, three “groups” of rules, namely carbon trading, financing, and MRA, can be constructed and strengthened to ensure the realization of “carbon neutrality” through market and non-market mechanisms. The “rule group” of carbon trading includes specific rules on quota allocation, trading platform, price adjustment, carbon offsetting and trading supervision, which clarify the relevant processes and ensure stable and orderly trading. The “rule group” of financing takes green fiscal and financial rules as its basis, not only guiding the formation of a green lifestyle and promoting the optimization of energy sources through “carbon tax + carbon allowance”, but also giving full play to the multi-layer investment and financing functions of the market through the innovation of green financial products and services. The “rule group” of MRA covers specific rules on data collection and analysis, business accounting, carbon emission monitoring and reporting, data evaluation and output, and capacity building, which ensure the smooth implementation of “carbon neutrality” action by regulating the collection and use of data.