从危害防止到风险预防:环境治理的风险转身与制度调适

"危害"和"风险"分别是传统秩序行政与当下风险行政的核心概念,语词之分的背后蕴含着制度应对的实质差异。危害防止强调对确定性损害和可预测危险的预防和阻止,是现代环境法应对的重心;但随着风险社会勃兴,对不确定风险的预防也逐渐成为国家应当承担的基本任务。我国环境立法已经对风险预防有所回应,但仍然存在风险预防法律地位不明、风险治理制度体系不够健全等问题,为此需要以预防原则为接口重塑风险预防在环境立法中的表达方式,以公私合作为基础建立环境风险治理的治理框架,并以程序理性为内核建立环境风险治理的裁量控制机制。

From Prevention to Precaution: Risk Steering and Institution Adjustment for Environmental Governance

"Hazard" and "risk" are the core concepts of traditional order administration and current risk administration respectively, and there are substantial differences in institutional response between them. Hazard prevention emphasizes the prevention of deterministic damage and foreseeable danger, which is the focus of modern environmental law. However, with the rise of a risk society, the precaution of uncertain risks has gradually become the basic task of the gouvement. China’s environmental legislation has responded to risk precaution, but there are still problems such as the unknown legal status of risk precaution and the inadequate risk governance institutions. To overcome those problems, risk precaution should be also a legal principle in environmental legislation,environmental risk governance framework should be based on public-private partnership, and discretionary control mechanisms for should be established with procedural rationality at their core.