论中国核能利用立法的首要原则和基本框架

Abstract

Nuclear energy usually means the part of the energy of an atomic nucleus,which can be released by fusion or fission or radioactive decay, and it can be utilized for civil purpose in many fields. Nuclear law is the law related to the peaceful uses of nuclear science and technology, which has close relationship with the civilian uses and management of nuclear materials and nuclear electricity power station. In Handbook on Nuclear Law: Implementing Legislation issued by the International Atomic Energy Agency (IAEA) in 2003,nuclear law is defined as “the body of special legal norms created to regulate the conduct of legal or natural persons engaged in activities related to fissionable materials, ionizing radiation and exposure to natural sources of radiation”. Although as early as in 1984, China started the activities of legislation on utilizing nuclear energy with the basic law entitled Atomic Energy Law, and later on, the civilian uses of nuclear energy was launched and developed gradually, neither has there been the basic law nor has there any separate law on the uses of nuclear energy in China, which may block the development of the utilization of nuclear energy. Fukushima Daiichi nuclear disaster in March 2011 aroused the public attention to making the basic law of using nuclear energy urgently again in China, which is currently in the course of drafting and still entitled “Atomic Energy Law”. Owing to the features of nuclear energy, experiences on the related legislations of other countries and the development tendency of nuclear uses, it is more appropriate to entitle the fundamental law as Nuclear Energy Law in replacement of Atomic Energy Law. By reference to Handbook of Nuclear Law issued by IAEA, in which 11principles are describes with the safety principle as the core and foundation,and the legislations of Japan and other states which regard the safety principle as the most significant one, the Nuclear Energy Law of China shall regard safety principle as the prime principle and focus on nuclear safety, security and supervision, and its basic framework shall contain general provisions (including purpose, definition, principle and scope), regulatory body, authorizations,research and development, constructions and operations of nuclear facilities (including construction, operation of nuclear reactors and the liability of related parties),utilization and regulation of nuclear materials, inspection and supervision of nuclear activities, and penal provisions. Furthermore, this law will just give generic terms on the issues such as nuclear safety, damage liability, processing and transportation of nuclear materials, etc., of which the detailed contents shall be regulated in separate laws, such as nuclear safety law and nuclear liability law or other related laws, such as Mineral Resources Law and Transportation Law.