摘要
《民法典》确立了绿色原则,但缺失自治性的实施规范.学界主张的法定义务、绿色原则解释和拓展附随义务的方案均存在着相当的局限,有必要遵从合同固有的机理,建立意定绿色义务体系.资源与环境、生态的对象区隔和私法上环境债权的行使为意定绿色义务奠定了法理依据;关系性契约为绿色义务提供了合同自组织能力.绿色请求权—抗辩权有助于强化合同运行过程的绿色覆盖,构建生态环境保护私法与公法的协同机制.意定绿色义务依托法律行为规范和解释性任意规范;绿色合意应采用先合同意向、绿色预约、本合同明定义务的渐进式缔约方式.基于绿色约定相对独立的特点,合同履行中应采用抑制合同整体无效、树立合同履行的共同行为理念;应引入绿色违约的再磋商义务,以维持绿色交易稳定性.
Abstract
The implementation of the green principle in the Civil Code should strengthen the role of discretionary norms in regulating relationships involving environmental interests.The Civil Code contains relatively few green provisions,predominantly focusing on mandatory obligations,with a notable absence of discretionary norms.This results in a structural imbalance,hindering the integration of the green prin-ciple into the contract law framework,which is grounded in private autonomy.While scholars have pro-posed three pathways for implementing the green principle in civil law,these external approaches face significant limitations.The core issue is that these theoretical models emphasize the public law's coercive nature,without aligning green obligations with the private law mechanisms that govern contractual autono-my.Establishing green obligations by mutual agreement allows parties to design green action plans based on their own consent,thereby fostering autonomy in green initiatives and internalizing public law obliga-tions within the private law system.The concept of voluntary green obligations under private law includes several key aspects.First,parties have the right to choose how to fulfill green obligations.They can de-sign optimal environmental protection measures tailored to the contract's context,their ability to perform,and the available environmental technologies.Second,parties may agree on the standard of obligation performance,allowing them to set obligations that exceed statutory minimums.Third,parties may decide whether to perform the green obligations themselves or delegate them to third parties.Fourth,parties can negotiate substantive and procedural rights that directly relate to environmental protection.Voluntary green obligations embody the independent purpose,procedural nature,and instrumental rationality of green au-tonomy.They permeate the entire contractual process,including contract formation,validity,modifica-tion,performance,and breach of obligations.These obligations arise from a distinct approach that differ-entiates among resources,the environment and the ecology,focusing on resources as the subject of credi-tor rights.This represents the exercise of environmental rights within private law.Voluntary green obliga-tions enhance green accountability throughout the contractual process through the use of green claims and defenses,aligning with policy objectives that encourage market-based environmental governance.To im-plement voluntary green obligations in contracts,flexibility in applying contract rules is crucial.First,these obligations should follow general legal rules of conduct and explanatory discretionary norms,encour-aging parties to reference green model contracts when forming agreements.Green obligations can be pro-gressively integrated into the main contract.Second,essential green clauses can be incorporated into both monetary and non-monetary obligations.Third,the accessory nature of green provisions to the main con-tract should ensure that the invalidity of a green provision does not void the entire contract.Finally,col-laboration between debtor and creditor during the contract performance transforms the contract into a joint legal act for green obligations,with economic reasonableness as a guiding principle for green performance.In cases of breach specific to green obligations,parties should be required to renegotiate to maintain the stability of the transaction.Voluntary green obligations,as part of the green action system,reflect the inherent contractual mechanisms.Together with statutory green obligations,they form a multi-layered structure that blends autonomy with legal compulsion.This normative framework of voluntary green obligations serves as a fundamental institution for advancing environmental goals within private law.
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