“双碳”司法治理中政策的融入机制

Mechanisms for the Integration of Policies in the Governance of “Carbon Peaking and Carbon Neutrality” Justice

摘要: “双碳”领域“立法不足、政策先行”的局面使得政策的司法融入成为司法裁判的重要一环。现有司法实践中，“双碳”政策在合同效力案中涉及的案件类型仅有几类，同时“双碳”政策的融入方式不同导致司法裁判混乱：直接以政策作为否定合同效力的直接依据、以政策非法源拒绝将其作为合同效力的审查考量因素、以绿色原则作涵摄，引入政策强化说理、以绿色原则为指引，引入政策强化说理等。主要原因在于对于“双碳”政策的定位存在理解分歧，扩大化地理解绿色原则，从而扩大其影响范围。基于此，一方面要全面理解“双碳”与司法功能的契合性，印证政策司法融入的正当性；另一方面，证明“双碳”政策与绿色原则的可通约之处，建立起以绿色原则为“中介”，帮助“双碳”政策融入合同效力审查之中，作为案件事实解释材料，进而通过价值优先性论证，为合同效力的认定提供依据。最后，从“双碳”领域的特殊性质的视角，针对不同类型的合同，为司法裁判提供相应裁判思路。

Abstract: The situation of “insufficient legislation, policy first” in the field of “carbon peaking and carbon neutrality” has made the judicial integration of policy an important part of judicial decision-making. In the existing judicial practice, there are only a few types of cases involving “carbon peaking and carbon neutrality” policies in contract validity cases, and the different ways of integrating these policies have led to confusion in judicial decisions: Directly using the policies as a direct basis for denying the validity of the contract, using the policies as an illegal source, refusing to use them as a factor for reviewing the validity of the contract, and using green policies as a factor for reviewing the validity of the contract. Refusing to consider the policy as a factor in reviewing the validity of the contract, introducing policy-enhanced reasoning with the green principle as a connotation, introducing policy-enhanced reasoning with the green principle as a guideline, etc. The main reason is that for the “dual-carbon” policy, there are only a few types of cases. The main reason is that there are differences in understanding the positioning of the “carbon peaking and carbon neutrality” policies, and the green principle is understood in a broader sense, thus expanding the scope of its influence. Based on this, on the one hand, it is necessary to comprehensively understand the compatibility between “carbon peaking and carbon neutrality” and judicial functions, so as to prove the legitimacy of judicial integration of the policy; on the other hand, it is necessary to prove the compatibility between the policies and the green principles, so as to establish a “mediator” with the green principles, and to introduce policy-enhanced reasoning as a guideline. It proves that the “carbon peaking and carbon neutrality” policy and the green principle are interchangeable, and establishes the green principle as the “intermediary” to help the policies to be integrated into the review of the validity of the contract, which serves as the factual explanatory material of the case, and then provides the basis for the determination of the validity of the contract through the priority of the argument of value. Finally, from the perspective of the special nature of the “carbon peaking and carbon neutrality” field, for different types of contracts, to provide the judicial decision for the corresponding decision ideas.