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【Journal Name】 China Law【Title】 Practical Exploration,Theoretical Development of Legislation on Circular Economy in China
【Author】 Wang Rong【Area of Law】 Economic Law
【Year】 In 2006【Issue】 2
【ESummary】 91
【Full text】 2013/3/17 10:11:39
【Remark】 1510089997
【Reference】   
  

After rapid economic growth over the past more man zoo veers, me shortage or water, land, energy, mineral and other resources in China has become increasingly acute while the situation of ecological construction and environmental protection has turned rather harsh. The scarcity of resources and the degeneration of environment have become major bottleneck problems holding back sustainable development in China. As far as the long-term prospect for socioeconomic development in China is concerned, acceleration of conversion of the way of economic growth and intensification of efforts to promote the development of a circular economy in China are not only a feasible way of easing the shortage of resources and fundamentally alleviating the pressure on the environment, but are also an effective approach to raise the efficiency of the national economy in an all-round way. As the development of a circular economy means a major transformation of the traditional economic development model and the traditional way of environment management, authoritative legal means are needed to support, guarantee and lead it. Therefore, to promote and guarantee the development of a circular economy through legislation has become an inherent requirement for the development of circular economy in China.

Ⅰ. Existing laws and administrative regulations related to the development of a circular economy in China

1. Legal provisions for cyclic use of resources within enterprises

Article 25 of the 1989 Environmental Protection Law of the People's Republic of China provides: “In the establishment of new industrial enterprises or in the technical transformation of existing industrial enterprises, equipment and technologies with a high efficiency of utilization of resources that are capable of leading to the discharge of less pollutants shall be applied, and techniques for economic and rational comprehensive utilization of refuse and techniques for pollutants treatment shall be applied.” Under the guidance of this legal provision, Article 4 of the 1995 Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Wastes provides: “The State encourages and supports comprehensive utilization of resources, sufficient recycling and rational utilization of solid wastes, and adoption of economic and technical policies and measures conducive to activities of comprehensive utilization of solid wastes.” Article 8 of this law provides for measures for awarding comprehensive utilization of solid wastes. Article 17 of it provides for issues conceding recycling and utilization of packaging materials. The 1997 Energy Saving Law of the People's Republic of China makes relatively specific provisions for government management over energy conservation, the obligations of energy consuming institutions and individuals for rational use of energy, adoption by the State of measures for promoting progress in energy saving technology, etc. The 2002 Law of the People’s Republic of China on Promoting Clean Production makes relatively specific provisions for the obligations of the government to prompt enterprises to practice a circular economy, the obligations of all industries and all enterprises to realize recycling of resources in the process of production, simulative measures adoptable by the State to encourage enterprises to practice a circular economy, etc.

2. Legal provisions for cyclic utilization of resources and energy on the part of whole society

The 1989 Environmental Protection Law of the People's Republic of China lacks specific provisions for cyclic utilization of resources and energy on the part of whole society. Article 3 of the 1995 Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Wastes provides for the principles of minimizing the discharge of solid wastes, turning solid wastes into resources and innocent treatment of solid wastes. Articles 17 and 18 of this lawmaker general provisions for cyclic utilization of packaging materials and agricultural films. Articles 9, 16,26 and 35 of the 2002 Law of the People's Republic of China on Promoting Clean Production makes provisions for government promotion of cyclic utilization of resources among enterprises; government preference in procurement of energy saving, water saving or recycled products; cyclic utilization or transfer by enterprises of refuse or surplus heat generated in the process of production or service provision; government extension of treatment of tax exemption or reduction to enterprises that make cyclic utilization of refuse, etc. However, such legal provisions are basically about clean production by enterprises. Therefore, there is the absence in China of comprehensive legal provisions for the core role of enterprises in realizing clean production that will lead cyclic utilization of resources and energy by the whole of society.

To sum up, China's existing laws and administrative regulations related to the development of a circular economy in the country mostly prescribe relevant rights or power of producers, consumers or the government only from the perspective of internal cyclic utilization of resources by enterprises or economic consumption of energy by individuals; and thus cannot meet the requirement for multilevel cyclic utilization on the part of the circular economy. To make up for the insufficiency of capacity of the existing laws and administrative regulations to support the development of a circular economy in China, it is imperative to enact a basic law on promoting the circular economy, which should prescribe the relevant rights or power of producers, consumers and the government emphatically from the perspective of cyclic utilization of resources and energy by the whole of society, with enterprises playing the central role, and which should, together with the existing laws and administrative regulations concerned, make up China's system of laws for guaranteeing the development of a circular economy in China that support and complement one another.

Ⅱ. Basic issues concerning legislation on the circular economy

1. Legislation on the circular economy should be designed to reachan“all win” situation

The circular economy is an “all win” economy conducive to socioeconomic integration and protection of resources and the environment. For the government, promotion of the development of a circular economy is beneficial in the following three respects: Firstly, it is beneficial to the construction of a harmonious society. The development of a circular economy can contribute to laying the material foundation for the development of a harmonious society and promoting harmonious development of man and nature. Secondly, it is beneficial to sustainable and favorable development of the Gross Domestic Product (GDP). The development of a circular economy is conducive to fostering and developing a number of “vena industries” and extending the chain of circular industries, thus creating more new points of economic growth. It is therefore a new major approach for increasing national income. And thirdly, the development of a circular economy is beneficial to improving the investment environment and economic structure. For enterprises, the development of circular economy is advantageous in the following four respects: Firstly, it’s advantageous to “turning wastes into precious resources”, and thus raising the economic efficiency. Secondly, it is advantageous to reducing pollution and lowering the cost of environmental protection. Thirdly, it is advantageous to raising the efficiency of utilization of resources and lowering the cost of production. And fourthly, it is advantageous to promoting renewal of the conception of production and management, including the source of environmental protection into economic development, and increasing the market competitiveness of enterprises. For the public, the development of circular economy will enable members of the public to enjoy a favorable environment for living, can increase employment, and can raise the actual benefits from job posts.

2. Legislation on the circular economy should be intended for “stimulation”

Legislation on the circular economy should be intended to prescribe the rights or power of producers, consumers and the government emphatically from the perspective of cyclic utilization of resources and energy by the whole of society, with enterprises playing the central role. For example, it should prescribe the shift of government functions from public administration onto public service, the system of economic levers, the system of technical information support, etc. The basic intent of legislation prescribing such rights and obligations is that the gains of individuals or enterprises from the exercise of rights and assumption of obligations will ultimately get close to the gains of society. Therefore, as compared with the relevant existing legal provisions, the law on promoting the circular economy not only takes the form of a kind of means of public administration, but also, more significantly, appears to be a simulative mechanism indispensable for social development.

3. Legislation on the circular economy should be based on Chinese characteristics

The embodiment of Chinese characteristics in legislation on the circular economy should first of all proceed from crucial issues in the development of circular economy in China. Presently, there are three crucial issues in the development of a circular economy in China firstly, relatively big disparity in regional economic development; secondly, backwardness of development of the recycling industry; and thirdly, the lack of long-term programs for the development of a circular economy. Therefore, Chinese characteristics in legislation on promoting the circular economy should be embodied emphatically through the making of provisions for “development programs, industries and cooperation.”

4. The principles of legislation on the circular economy should embody “government guidance, market regulation, public participation and industrial support”

The core value of the development of a circular economy is the general adoption of the market principle in the utilization of wastes, and is to enable wastes to be of the attribute of essential factors of production and participate in the collocation of resources with market mechanism, which cannot be realized solely by the market force, and which requires government involvement and intervention. Therefore, the development of a circular economy in China must be brought under government guidance. The purpose of government guidance in this respect is to make up for market failure. When market failure is made up for, the role of the government can be phased out. So, in the development of a circular economy in China, the basic regulatory role of the market must be brought into play. The circular economy is a process of constant cyclic utilization of resources from production to consumption and from consumption tore production. A society with the integration of this process in it is called circular society. Public participation is indispensable to the realization of the circular society. This is because the circular economy is also a process of constant circulation of the flow of resources, the flow of technology, the flow of funds and the flow of information. The realization of this process cannot always rely on government maintenance. Rather, it can be guaranteed only through public participation.Therefore,the development of a circular economy in China requires the mobilization of public participation and enthusiasm. A most importance aspect of the circular economy is to enable circular flow of matters, and the economy should be able to achieve greater gains in this process. Because of this reason, a complete society must include producers (in the primary and secondary industries), consumers (in the tertiary industry), the dissolution industry or quaternary industry (the recycling industry) and the environment. In China, the primary, secondary and tertiary industries are relatively complete and well-established, but the quaternary industry (the recycling industry) is still pretty weak. This reality makes the flow of various matters in the fields of production and consumption in China unable to proceed or circulate smoothly or with high economic efficiency. Therefore, the development of a circular economy in China must be based on the establishment and improvement of a recycling industry.

Ⅲ. Major legal systems on the circular economy

1. The green GDP system

The possession of public resources and environment without compensation is a crux of the traditional economic model. It is also a fundamental deep-rooted problem that can hardly be solved through external effects in the general adoption of the market principle in the utilization of wastes. Therefore, in the development of a circular economy, it is essential to compute environmental resources into the scope of national wealth, and to realize compensated use of environmental resources, which requires the establishment of the green GDP system. Through application of the green GDP system, we can realize compensated use of environmental resources, in the interest of promoting sustainable utilization of resources and sustainable development of the economic, accelerating the shift of ways of economic growth, raising the economic efficiency and increasing social welfare.

2. The planning system

The circular economy is a new model of economic growth. Through application of the planning system, we can settle such basic issues in the development of a circular economy as its targets, key points, choice of ways and safeguards, and establish a government platform for promoting full-scale development of a circular economy in China.

3. The system of economic levers

In the development of a circular economy, we need to give full play to the role of economic levers while bringing the administrative leading role of the government into play. Through application of the system of economic levers, we can improve the mechanism for the formation of prices of environmental resources and renewable resources, stimulate the recycling behavior of enterprises and consumers, guide social investment and orientation of consumption, form the market regulation basis of a circular economy, and arouse public enthusiasm to participate in the development of a circular economy in China. The system of economic levers is established mainly in the following four respects: Firstly,through application of such economic levers as pricing, taxation and cost, we rationally readjust the price relations between products made from environmental resources and final products, and improve the mechanism for the formation of prices of environmental resources and renewable resources. Secondly, through application of the cyclic utilization catalogue and cash deposit system, we stimulate the recycling behavior of enterprises and consumers, which will lead to the change of production and consumption models of whole society. Thirdly, through application of such economic levers as national debts, loans and funds, we guide social investment and promote the development of the chain of circular industries. And fourthly, through application of the system of government procurement, we extend the market consumption demand for recycled products, arouse the enthusiasm of enterprises to participate in the development of a circular economy, and guide the public to choose the orientation of green consumption.

4. The system of technical informationsupport

Technology and information are not only fundamental driving forces for the development of the circular economy, but are also carriers through which the theory of the circular economy is applied in practice. Through application of the system of technical information support, we can establish the platform of government service of technical information, and construct the system of technical information guarantee for the development of a circular economy. The system of technical information support is established mainly in the following four respects: Firstly, the government is assigned the duty of releasing statistical information on decrease, reuse and recycling of resources. Secondly, the government is assigned the duty of establishing the system of technical service for the development of a circular economy. Thirdly, the movement is assigned the duty of establishing and applying the green GDP evaluation system, setting quotas for energy and water consumption, and formulating standards for water consumption. And fourthly, the government is required to establish the simulative system of supporting and encouraging the behavior of enterprises and intermediary organizations to research and develop technical information on the development of the circular economy.

5. The system of market access

To realize optimization of the economic structure is a basic target of developing a circular economy. The development of a scientific and complete system of market access is a major measure to reform the structure of industries from the source and realize optimization of the economic structure. The system of market access is established mainly in the following two respects: Firstly, we raise the threshold for market access of some industries and some building or construction projects that are energy consuming and water consuming. Secondly, we lower the threshold for market access of capital intended for some public welfare cyclic utilization industries. By licensing franchise operations, we attract and regulate the entry of social capital into cyclic utilization industries.

6. The system of green consumption

To raise public awareness about green consumption and bring the leading and promotional role of the government in green consumption into play through the system of green consumption is a major guarantee for realizing the circular economy. The system of green consumption is established mainly to regulate the consumption behavior of the government and the public as two different types of consumption subjects. Firstly, for the behavior of consumption of the government as a type of consumption subjects, we explicitly provide that the government shall give priority to purchasing energy saving, water saving or recycled green products in government procurement. Secondly, for the behavior of consumption of the public as a separate type of consumption subjects, we manage to encourage the public to voluntarily purchase and consume green products through economic simulative means.

7. The system of requiring enterprises causing serious pollution to apply the system of a circular economy in compulsory way

In practice, we require enterprises causing serious pollution to apply the system of a circular economy in a compulsory way, and include enterprises that consume large quantities of resources and that cause serious pollution to the environment into the catalogue of key enterprises that must apply the system of a circular economy in compulsory way, in exercising strict supervision and control over them, in order to make breakthrough in key points of the work in this respect, which is a major means for the government to raise the efficiency of administration. This system requires that the enterprises included into the catalogue of key enterprises that must apply the system of circular economy in a compulsory way must assume the obligation of recycling abandoned products made by them for cyclic utilization and partially assuming the cost of disposition of such products in accordance with the relevant technical standards prescribed by the State. Those that fail to satisfy the relevant standards in this respect within the prescribed time limit will be subject to administrative sanction. On the contrary, those that meet the relevant standards within the prescribed time limit will be entitled to enjoy preferential treatment in terms of taxation and can be awarded other benefits.

8. The system of public participation in the development of a circular economy

To gradually establish a model of the development of a circular economy through application of the system of public participation that involves public participation, that benefits the public and that is under public supervisions an important precondition for realizing circulation of the “four flows” of the circular economy. The system of public participation in the development of circular economy is established mainly in the following two respects: Firstly, we establish a multilevel platform for public participation. In doing so, we make legal provisions for public participation in legislation, in the enforcement and supervision of law, in relevant policy making, and in formulating the rules for and methodology and ways of building communities applying the system of a circular economy. Secondly, we give full play to the role of intermediary organizations in the development of circular economy, and establish a platform for mutual exchange between intermediary organizations, enterprises and the government, in an effort to enable them to complement one another and assist one another in the development of a circular economy.

9. The system of extension of responsibility of producers and consumers

To gradually change the model of extensive consumption of resources by producers and consumers through application of the system of extension of responsibility of producers and consumers is an important basis for the realization of the circular economy. On the basis of prescription of existing responsibility, the system of extension of responsibility of producers and consumers in this respect is intended to extend the process of assumption of responsibility, and specify the legal obligations of producers and consumers to assume extended responsibility for the consumption of resources or participate in cyclic utilization of all resources and energy on the part of whole society, with enterprises playing the central role.爬数据可耻


 

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