气候资源的属性及权属问题研究——兼评《黑龙江省气候资源探测与保护条例》

气候资源具有动态资源的自然属性和公共资源的社会属性,是全人类共同且平等享用的物资,中国现行法律疏漏气候资源非排他性的公共资源特点,在民法与宪法中均未区分公共自然资源与国有自然资源的归属,气候资源的权属亦无规定。因此,在共生理论背景下实现多元利益的平衡,保护气候资源,建议中国现行立法应该明确全人类共同享有气候资源和平等使用的权利,增强国家对气候资源的管理义务,防止气候资源国产化。

On Attribute and Ownership of Climate Resources

Climate has the natural attributes of an ever changing, dynamic resource as well as the social attributes found in all public resources. These features are common to and equally distributed for all of humanity. In China, present legislation has not addressed the non-exclusive nature of climate as a public resource and responsibility. There are no provisions in the current civil law or in constitution that deal with any ownership of the climate. Furthermore, civil law and the constitution do not deal with the issue of ownerships for public natural resources or the state-owned natural resources. Therefore, based on symbiosis theory, protecting China's climate resources is a balance among the multiple interests of mankind. This article suggests that the right to enjoy and use climate resources should be equally shared among all of humanity and that these needs should be addressed in China's current legislation. Such legislation needs to create a strengthening of the national management obligation of climate resources. However, any legislation should prevent climate resources from becoming a state-owned property.