法治实践中环境权实现路径分析——基本权利的视角

Analysis of the Realization Path of Environmental Rights in the Practice of the Rule of Law—From the Perspective of Fundamental Rights

摘要: 环境权的法律规定不明确。学界对环境权的权利构成和概念界定存在较大分歧，对环境权的实现方式持不同观点。我国宪法并未将环境权作为公民基本权利加以规定，同时基于我国的权力分置原则和法治实践，宪法上的基本权利不具直接的可诉性，必须通过立法机关形成具体法律规范后，方得以作为请求权基础。在可诉性之外，通过在国家行为具体化环境权，使其成为国家和社会的价值基础，以具体的环境法律的制定和实施、对法律条款进行绿化解释以实现公众的环境利益，是环境权另一条实现的路径，对于我国的法治实践相对更具可行性。

Abstract: The legal provisions of the environmental rights are uncertain. There is a wide divergence of views among academics on the composition of rights and the definition of the concept of environmental rights, as well as on the ways in which environmental rights can be realized. Constitution does not stipulate the environmental rights as the fundamental rights of citizens, at the same time, based on the principle of separation of powers and the rule of law in our country, the fundamental rights of the constitution does not have direct justiciability. It must be formed by the legislature into a specific legal norm before it can be invoked as right to claim. In addition to the justiciability, another path to the realization of environmental rights is through the concretization of the environment rights by state behavior so that it can become value foundation for the state and society, and through the enactment and implementation of specific environmental laws and the green interpretation of legal provisions in order to realize the environmental interests of the public, is relatively more feasible for the practice of the rule of law.