油污损害防治的法经济学解释——基于财产规则、责任规则和不可让渡规则三个维度的分析

在法经济学领域中,“卡-梅框架”将侵权救济规则抽象成财产规则、责任规则与不可让渡规则三种类型.这一框架从分析法律规则的效果模式出发,以寻求“最有效率的权利保障”作为规则选择的取舍标准.“卡-梅框架”对于油污损害防治理论和实践的价值在于有助于重新审视相关法律规则的设置目的、适用场合及实践效果.油污防治法律规范的修改与完善需要对克服油污损害的外部成本以及实现法律的效率价值给予更多关注.

Petroleum pollution prevention by law & economics analysis:Based on property rule, liability rule and inalienable rule

In variety of remedies for ecological damage which had caused by oil pollution, they can be found corresponding rule model in field of law and economics. Once oil contamination causes ecological damage, analyzing the efficiency of remedial rules has two advantages. On the one hand, it might be contribute to revise the costs & benefits and practical effect of the remedies which are being used to solve oil spill incidents such as the one happened in Bohai. On the other hand, it can provide theoretical basis for further choice when we choose different rules. Liability rule has three superiorities such as ex post relief, guardianship environmental public interest and executive power restriction when it is compared with other remedial rules. At this point, liability rule should come the main regulation for oil spill contamination. However, every relief measure has potential social cost. Therefore, liability rule should be coordinate with other regulations and reduce its valuation cost, then a high quality remedial plan with lower cost and massive benefits would be provided.