CAJ | 학술논문

日本环境权说在立法、司法和环境行政实践中遭到了普遍怀疑和普遍拒绝。在环境权入宪的国会讨论中,支持派或主张把环境权＂作为国家政策＂加以规定、以＂环境的义务＂的形式规定,或主张仅仅把环境权的＂精神＂植入宪法,都不主张直接把环境权规定为宪法权利;反对派或认为环境权不宜进入宪法权利体系,或以与环境权相对应的责任义务不明确为由反对明确规定环境权,或认为规定环境权不如规定其他具体的人权,甚至认为讨论环境权入宪是误入歧途;折衷派认为环境权是一个需要＂进一步探讨＂的对象,其理由或为环境权内容含糊、环境保护立法定位未定,或为反对环境权入宪的观点也有道理。日本司法界拒绝环境权说的主要理由有（1）根据环境权的主体不明确性;（2）环境权的内涵不明确;（3）环境权这一概念多余。日本环境行政也没有采纳环境权的理念,而是贯彻了（1）环境＂有限性＂的判断安排法律政策;（2）用来自对环境整体性的积极反映的整体性思维指导环境政策安排;（3）以共同利益作为处理不同主体间关系的原则;（4）以职责——监督为环境行政系统开展工作的动力机制等原则。日本环境权说遭遇困局的原因出在：第一,萨克斯并没有向日本学界传授环境权的真＂经＂,他的演讲没有回答什么是环境权,而是介绍了美国的环境公民诉讼制度,讨论了这个制度产生的合理性;第二,日本学界所＂发扬＂的环境权以私权环境权为代表,而这种挂环境标签的权利与日本的环境观不相容。
일본배경권설재입법、사법화배경행정실천중조도료보편부의화보편거절。재배경권입헌적국회토론중,지지파혹주장파배경권＂작위국가정책＂가이규정、이＂배경적의무＂적형식규정,혹주장부부파배경권적＂정신＂식입헌법,도불주장직접파배경권규정위헌법권리;반대파혹인위배경권불의진입헌법권리체계,혹이여배경권상대응적책임의무불명학위유반대명학규정배경권,혹인위규정배경권불여규정기타구체적인권,심지인위토론배경권입헌시오입기도;절충파인위배경권시일개수요＂진일보탐토＂적대상,기이유혹위배경권내용함호、배경보호입법정위미정,혹위반대배경권입헌적관점야유도리。일본사법계거절배경권설적주요이유유（1）근거배경권적주체불명학성;（2）배경권적내함불명학;（3）배경권저일개념다여。일본배경행정야몰유채납배경권적이념,이시관철료（1）배경＂유한성＂적판단안배법률정책;（2）용래자대배경정체성적적겁반영적정체성사유지도배경정책안배;（3）이공동이익작위처리불동주체간관계적원칙;（4）이직책——감독위배경행정계통개전공작적동력궤제등원칙。일본배경권설조우곤국적원인출재：제일,살극사병몰유향일본학계전수배경권적진＂경＂,타적연강몰유회답십요시배경권,이시개소료미국적배경공민소송제도,토론료저개제도산생적합이성;제이,일본학계소＂발양＂적배경권이사권배경권위대표,이저충괘배경표첨적권리여일본적배경관불상용。
The environmental theory in Japan has been suspected and refused generally by the circles of legislation, jurisdiction and administration. When discussion was carried out on whether environmental fight should be put into constitution or not by the congress, ideas of members could be divided into three parties as approval, opposition and neutrality. Those who approved the i- dea claimed that environmental right should be regulated as ＇ national policy＇ and ＇ obligation of environment＇ , or clamed envi- ronmental right should be put into constitution just as a kind of ＇ spirit＇ , which means these members didn＇ t agree to have envi- ronmental right as a kind of right in the constitution. The opposition party claimed it was not appropriate to put environmental right into the system of constitution, or opposed to regulate environmental fight in clear terms because the obligation of environ- mental right is indefinite, or claimed that some concrete human rights should be regulated instead of environmental right, or even argued that the discussion on the topic was a mistake itself. The neutrality party claimed that environmental right need further dis- cussion, because the content of environmental fight was indefinite, or it had not been ranked in the legislation of environment pro- tection, or the idea of the opposition party made sense somehow. The reasons that environmental right was refused by the jurisdic- tion circle could be conclude as follows. First, the subject of environmental right was indefinite. Second, the content of environ- mental right was indefinite. Third, the concept of environmental right was unnecessary. The environmental administration didn＇ t accept the idea of environmental right either. Instead of that, firstly, environmental laws were arranged based on the judgment of ＇ limitation＇. Secondly, policies were directed by thinking environment as a whole. Thirdly, relations between different subjects were dealt with on the principle of common interest. Fourthly, ＇ duty - supervision＇ was taken as the power mechanism to carry out the work of environmental administration. It＇ s inevitable for the advocators of environmental right theory to meet dilemma in Japan. Firstly, the lecture given by Joseph Sax at the symposium held in Tokyo in 1970 had not taught the academic circle in Ja- pan what was environmental right. Secondly, environmental right was enhanced by Japanese academic circle as private right, which was incompatible with the natural view and environmental view in Japan.