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环境权制度化的呼声日趋高昂,但对于其制度化的路径却存在诸多争议甚至误区,如忽视环境权作为法律关系的面向、忽略环境权在不同法律部门中的差异以及伦理道德化趋势严重等问题。环境权入宪作为环境权制度化的路径之一,亦必须在厘清这些误区的基础上才能实现。对于入宪来说,其首要解决的前提是论证环境权的基本人权属性,而这一点,在学理上、国际或区域人权文件和各国宪法中均得到了广泛承认。但基本人权属性只是入宪的必要条件而非充分条件,在此基础上,还必须明确环境权入宪的必要性和可行性。同时,应对环境权内涵进行分解,将其明确区分为一般环境权和具体环境权,并因应各不同法律部门的特点考察其不同的含义,为环境权入宪提供法技术层面的支撑。最后通过对各国纳入宪法环境权条款的模式进行比较,并因应我国宪法的特质,找出一条适合中国环境权宪法保障的进路。
However, there are many controversies and even misunderstandings about the institutionalized path of environmental rights, such as ignoring the environmental rights as the legal relationship, ignoring the differences of environmental rights in different legal departments and the serious trend of ethicalization problem. As one of the ways to institutionalize the right to environment, the incorporation of environmental rights into the Constitution must be realized on the basis of clarifying these misunderstandings. For the entry into the constitution, the premise of its primary solution is to demonstrate the basic human rights attributes of environmental rights, which have been widely recognized in academic, international or regional human rights documents and the constitutions of all countries. However, the basic human rights attribute is only a necessary condition rather than a sufficient condition for entering the constitution. On this basis, the necessity and feasibility of environmental rights into the constitution must also be clarified. At the same time, the connotation of environmental rights should be decomposed, clearly divided into general environmental rights and specific environmental rights. According to the different legal departments, different connotations should be examined to provide technical support for the incorporation of environmental rights into the Constitution. Finally, by comparing the constitutional rights provisions of all countries, and according to the characteristics of our country’s constitution, we can find a suitable way for the constitutional protection of China’s environmental rights.