商业银行绿色信贷的实现路径及其法律掣肘

绿色信贷体系的建构与发展有三种可能的实现路径，分别是自愿实现机制（以“赤道原则”为典型代表）、民事侵权责任机制（以美国的《超级基金法》为典型代表）以及行政权力推动机制（以我国现阶段的绿色信贷政策体系为典型代表）。将以“软法”为核心特征的自愿实施机制引入中国的金融体系，尚不具备成熟的内外部条件；通过强制性的立法来确立商业银行的环境侵权责任制度，则会面临无法与既有的侵权责任法律制度和商业银行监管法律制度相契合的难题，同时还会带来诸多消极结果；行政权力推动模式在我国的普遍运用源于现阶段我国金融市场法治约束的不足，但其长效性和稳定性无法保证。考虑到我国商业银行体系在当下的特殊境遇，破除绿色信贷发展法律掣肘的关键在于有效促进商业银行治理机制和风险管理能力的提升，而非增加商业银行承担环境义务与责任的法律条款。

Green Credit of Commercial Banks: The Implementation Paths and Legal Barriers

Throughout the world, green credit of commercial banks is the most typical green finance mechanism. Its core is to include environmental test standards, pollution control effects, ecological protection and other factors into the decision-making of credit granting by commercial banks.Green credit mechanism shows different intrinsic attributes and external features because it starts and grows up in different regions or at various stages of historical development. Specifically, a system of green credit establishes itself and develops in three possible paths: (1) norms of self-regulation, or voluntary codes of conduct, with the Equator Principles (EPs) as a typical example; (2) environmental tort and compensation liability under private law, with the US Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) as typical examples; (3) promotion by administrative power under public law, with China's current green credit policy as a typical example. The above three paths are not completely exclusive as many of them would integrate with others to make a difference in different regions or at various stages of development in history.Paths of realizing different green credit policies are always related to the traits of financial market and legal system in some countries. In China, the development and improvement of legal system of green credit is premised on the knowledge of supportive conditions under which various paths of realizing green credit policies make a difference. Regarding the above three paths, the voluntary codes of conduct featuring soft law is expected to be introduced to China's commercial banking system against the backdrop of immature financial market. The environmental tort liability of commercial banks is supposed to be determined by compulsory legislation. Though such tort liability has been exemplified by foreign practices, it is still controversial. Its introduction to China would also be faced with a challenge of integrating with China's current legal system of tort liability and of regulation on commercial banks, which would probably increase social cost. As for the widespread use of administrative power to promote green credit policies, it is a result of insufficient legal limitations on the current financial system. The use of administrative power can play a role to some extent at current stages, but its long-term effectiveness and stability could not be ensured institutionally.To develop green credit policies in China, it is necessary to think outside the box to search for a responsive policy to China's institutional environment. China's commercial banks granting credit to high pollution and high energy consumption areas is largely not out of their commercial interests. Instead, their choices are influenced by various external factors. Therefore, in order to push forward China's green credit development, it is essential to highlight that commercial banks bear the responsibility for their business activities for investors and the market, improving their corporate governance mechanisms and risk management capabilities.