| Water is the foundation of ecology.The essence of life and the basis of survival must provide adequate protection of water resources.With criminal law as a means of protecting water resources and combating water pollution,which has become an unavoidable issue in contemporary criminal policy,the strictest view of the rule of law in the new era has put forward higher requirements and latest challenges to criminal discretion for water pollution.The criminal sanction of water pollution environment should be based on upholding the criminal law as the last line of control of society and cannot be abused.In response to the needs of ecological civilization and the construction of a beautiful China,improvements and adjustments should be made with the times.However,in contrast to the current judicial situation of criminal discretion for water pollution in China,the relationship between the construction of ecological civilization and criminal law as the final guarantee law has not been balanced,coordinated,and a lot of discordant,even contradictory,conflicting judicial chaos has appeared.On the one hand,in order to respond to the construction of ecological civilization and crack down on water pollution crimes,the criminal law arbitrarily broke through the bottom line that criminal law should adhere to,formalizing and obscuring the application of criminal law,leading to the improper violation of personal freedom.For example,water pollution crimes face problems such as the formal application of incrimination standards and the obscurity of subjective crimes.On the other hand,ignoring the call of ecological civilization and sticking to the traditional conviction and sentencing ideas,the criminal law has not fully played a role in escorting water pollution,which has greatly reduced the role of criminal law in the construction of ecological civilization.The non-targeted and sanction methods are based on the "penalty" theory.Obviously,this does not meet the requirements of the state to achieve the strictest ecological protection and improve the ecological restoration system.If these problems cannot be resolved in a timely and proper manner,not only will the scope of criminal discretion for water pollution environmental crimes and the methods of criminal responsibility be lack of scientificity and rationality,it will even cause tension between ecological civilization construction and human rights protection.Therefore,it is necessary to take the basic values and standards of criminal law as the premise,use the criminal law doctrines as a bridge between legislation and judicial practice,and based on the critical examination,comparison,and summary of judicial practice,according to the actual needs of the construction of ecological civilization,and combine relevant The departmental law recognizes water pollution and punishes related pollution behaviors,reasonably explains the current legislative provisions on criminal discretion for water pollution environmental crimes,reveals the deficiencies in the judicial process of actual water pollution environments,analyzes its root causes,and penalizes water pollution sanctions.Implement the strictest "ecological rule of law" in the new era to find the best explanation path,and finally form a criminal sanction system that conforms to the law of water pollution crime identification and sanctions,so as to more rationally alleviate and balance the relationship between human rights protection and ecological civilization construction.It can be said that such research directions and ideas have important theoretical significance and practical value.At the theoretical level,the first is that the research on criminal discretionfor water pollution environmental crimes is an important manifestation of the recognition that different environmental media have a certain correlation,but more that the differences between water bodies,soil,and air discretion should be faced up,which will help enrich water pollution.The theory of criminal law and detailed research content provide useful theoretical support for scientific identification and reasonable sanction of water pollution environmental crimes,and provide reference for criminal justice to punish and prevent soil,air and other environmental media pollution crimes.Secondly,with the overall thinking and ecological civilization concept from the perspective of the connection of departmental law,the interpretation direction and criminal law should be put forward on how the criminal law should punish and prevent water pollution and implement the policy of“protecting the ecological environment with the strictest legal system” advocated by the state.Adhering to the bottom line principle will help to build a more systematic,comprehensive,and scientific method for identifying and sanctioning water pollution violations.At the practical level,the first is to establish a water environmental standard or the changes in the flora and fauna in the region to represent the pollution status of the water ecosystem as a judgment standard for the result of water pollution.It is operable to avoid improper restrictions or expansion into the scope of crime,which helps The accuracy and scientificity of the determination of water pollution crimes will improve judicial fairness.Second,the establishment of a normalized multiple discretion system based on penal discretion and supplemented by non-penal discretion can effectively compensate for the deterrence,prevention,and ecological restoration defects of single penal sanctions.It is a criminal law that actively responds to the construction of ecological civilization and responds to the beautiful China.Construction policy move.Thirdly,the study of water pollution environmental crimes is carried out with a doctrinal method,which follows that "the law is not the object of ridicule",so that the court can gradually renovate and appropriately apply the criminal law to maximize the stability and justice of the law.The full text consists of 6 chapters with a total of more than 200,000 words.The first chapter summarizes the theory of criminal discretion for water pollution environmental crime.This chapter is divided into three sections,focusing on the definition,historical evolution,and development drivers of water pollution environmental criminal sanctions,providing a context and analytical framework for the study of water pollution criminal sanctions,and a systematic understanding of water pollution environmental criminal sanctions.At the same time pave the way for the following issues.First,define the basic scope of criminal discretion for water pollution environmental crimes.First,what is water pollution?Human beings directly or indirectly introduce polluting substances into terrestrial waters or oceans,causing chemical or physical changes in water bodies,causing or possibly causing damage to human life,health,and property.It should be noted that the determination of water pollution in criminal law should ultimately rest on human beings.The second is how to understand water pollution environmental crime.Refers to the crime of polluting the environment(the crime of amending the Criminal Law(eight)was previously called the crime of major environmental pollution accidents)in the crime of polluting water and environmental media.The third is the meaning of criminal sanctions."Criminal sanctions" have a broad meaning,including the issue of the rationality of crimes and legal consequences.Second,sort out the history of criminal discretion against water pollution.Specifically divided into the normative evolution of water pollution criminal discretion and the judicial evolution of water pollution criminal sanctions.By sorting out the history of China's criminal law protection of water resources for more than forty years,we can basically conclude that the criminal law's regulation of water pollution crimes has basically achieved legislation(including judicial interpretation)in convictions from scratch,from rough regulations to Strict criminal law network,from focusing on harm results to pollution prevention,from personal freedom protection to water quality public safety,from the emphasis on causal blame to the focus on prosecution of cheap punishment and other major punishment directions,the criminal law continues to expand the scope of application and crime Precautionary approach.In terms of criminal sanctions,attention is paid to the application of traditional punishment methods,and lack of the purposeful consideration of sanctions.Finally,the reasons for the development of criminal discretion for water pollution crimes are summarized.Divided into factual motivation and practical motivation.The factual cause stems from the serious social harm of water pollution crimes,water pollution has its own particularity,the active adjustment of criminal law to society at risk,and the gradual recognition of the impact of ecological legal benefits;the practical cause begins with the severe water pollution status and the criminal law change.Promoting the development of ecological environment protection and green economy,one-sided understanding of other legal means,and the impact of "crime" environmental criminal policies.Chapter II The premise basis of illegal evaluation of water pollution environmental crime.The content of this chapter is divided into three sections.The legal norms of environmental pollution crimes are interpreted with the help of legal interests.It is particularly emphasized that water pollution crimes are based on the premise of infringing humanistic legal interests.The elements of water pollution results are the basis of the illegal evaluation of pollution behaviors(judgment of legal interests).First,it is based on the prejudice to the humanistic view of legal interests.It is difficult to stand by the legal interest of protecting the environment.This kind of transpersonal legal interest also needs to rely on personal legal interest to obtain justification.According to this,as far as the essence of environmental legal benefits is concerned,the environment itself is not an appropriate legal benefit in criminal law.Human life,health,and property belong to the legal benefits protected by criminal law.What is different from traditional killing and injury behaviors is that water pollution crimes do not directly face the infringement or danger of others.What the criminal law must avoid is the indirect danger or infringement of human life and health after the water body is polluted.Secondly,the result elements are used as the basis for the illegal evaluation.The result element of criminal law is the basis of the theory of imputation.It can make the abstract legal benefits concrete.It is a sign of violation of legal benefits.Only through the result can the illegality of behavior be shaped.Abstract dangerous offenders are no exception.Third,abstract dangerous offenders should include consequential elements.Returning to the crime of water pollution,pollution is the consequence element of abstract dangerous crimes,and the lack of water pollution must result in crime.The judgment of the “quantity” of severe water pollution involves scientific and technical issues.In order to facilitate the measurement of damage in judicial practice,it is often necessary to firstly issue technical guidelines and standards to determine the “baseline” and then determine the damage based on the “baseline.The specific judgment of water pollution results should be based on the water environment media standards or the changes in the area's flora and fauna to represent the pollution status of the water ecosystem.Chapter III Adhere to the stand of criminal discretion for water pollution environmental crimes.This chapter is divided into three sections.It explains the principles and concepts of criminal discretion for water pollution environmental crimes at a macro level.It is the theoretical basis and conditions for criminal discretion for water pollution crimes.First of all,we should reasonably grasp the limits of the principle of prevention of environmental pollution by water pollution.First,criminal law should treat environmental pollution risks rationally,that is,correctly identify the risks of water pollution environmental crimes,rationally treat the value of abstract dangerous offenders,and highlight the nature of water pollution social damage.The second is the establishment of standards for water pollution crimes with the participation of the public,because the identification standards derived solely from the scientific professional perspective,if not recognized by the public,the system's standards are only a kind of advanced legislation with a high degree of widowhood,and the final result It is nothing more than "strict legislation and lenient law enforcement." Therefore,to avoid the occurrence of the above-mentioned unreasonable situations,the judicial administrative organs should adopt a consultative standard-setting model when formulating the standards of illegal crimes,and follow the principle of scientific professionalism,and seek conclusions that are acceptable to all parties.Second,water pollution environmental crimes should follow the principle of administrative subordination.Criminal discretion cannot be the first choice,either from the prevention of water pollution or from the effects of applicable laws.The focus of prevention of water pollution should be placed on the water pollution administrative norms,giving full play to the positive role of water pollution administrative norms in preventing and punishing water pollution violations.Of course,the administrative nature of water pollution crimes is also a guide to improve the direction of water pollution sanctions,ensuring that administrative penalties for water pollution and criminal discretion establish an effective connection.Finally,water pollution environmental crimes should focus on the use of multiple sanctions.Although the current system of criminal discretionfor water pollution environmental crimes appears reasonable,there are still many problems that need to be compensated by other sanctions.Chapter 4: The judicial status of criminal sanctions for water pollution environmental crimes.The content of this chapter is divided into three sections.By examining the current judicial situation of water pollution environmental crimes,it provides a data basis for refining and summarizing the problems existing in the conviction and application of discretion methods of water pollution environmental crimes.After effective screening,from January 1,2019 to September 10,2019,a total of 438 valid research samples of water pollution environmental crime cases in the first instance nationwide were determined,and the overall judgment,convictions,and criminal liability of the sample cases were investigated.An in-depth analysis of the way of responsibility.The statistical results show that excessive discharge,hidden discharge and excessive discharge of hazardous substances are the centrally applied criminalization methods;the crime of water pollution and environmental crimes with lighter penalties and lower fines is more prominent;attention is paid to the application of punishments,Attention to other methods of discretion.The fifth chapter analyzes the problem of criminal discretion of water pollution environmental crime.The content of this chapter is divided into three sections,and the problems are refined and summarized according to the judicial status of criminal sanctions of water pollution environment,and the existing problems are analyzed in a “tracing to the source”style in order to improve the criminal sanctions of water pollution crimes.First of all,based on the analysis of 438 sample cases and the application of specific cases,it is considered that the subjective crimes of criminal sanctions for water pollution environmental crimes at the level of conviction are not clear,the crime of water pollution is not targeted,and the abstract danger of water pollution Commit the inadequacy or deviation of formal application,and elaborate and demonstrate the possible risks of the rule of law caused by these inadequacies.Secondly,according to the statistical results of the sample cases,it is believed that there is a single defect in the method of criminal determination of water pollution environmental crimes in China.If it is not improved,it may lead to insufficient deterrent and ecological restoration functions of criminal determination of water pollution.Finally,the crux of the problem of conviction is that one is to depart from the formal norms that constitute facts,for example,the determination of subjective crimes deviates from the facts of the crime,and the idea of identifying the crime deviates from the fact of pollution;Excessive abstraction of the connotation of environmental legal benefits,excessive simplification of the liability system for water pollution crimes,legal basis for acknowledging the accumulation of water pollution crimes.Secondly,the crux of the single structure of criminal discretion is that,as far as the deterrent function of criminal law is concerned,the practice ignores the significance of other discretionary methods such as the recovery of illegal income and the prohibition of employment in the deterrent function of criminal law.The reason why the ecological restoration criminal judgment in water pollution environmental crimes has not been promoted and applied in judicial practice can be attributed to the misconception that the ecological restoration criminal judgment lacks legal origin,ignores the value demands of the concept of legal protection,and adheres to the old environmental criminal justice concept.Chapter VI: Judicial improvement of criminal discretion for water pollution crimes.This chapter consists of two sections.Based on justice,we will improve criminal discretion for water pollution crimes from two aspects: conviction and correction,and consideration of multiple sanctions.First,judicial correction of criminal discretion for water pollution crimes.First,regulate the nature of different environmental media.Due to the different nature of freshwater,seawater,air,and soil,the possible pollution sources and pollution behaviors are different,and the density and intensity of protection of different environmental media may be different.Therefore,it is more appropriate to adopt different constitutional requirements.Second,water pollution crimes should insist on mixed crimes.In favor of the mixed guilty theory that the judicial ruling needs to be clear of negligence or intentional sin,that is,the subjective aspect of the environmental pollution crime is usually constituted intentionally,but it can also be constituted of negligence,and the judicial choice is required to be clear.Sin said.Third,clarify the boundaries between water pollution violations and crimes.In order to strictly distinguish the functional differences between criminal law and administrative law,and to adhere to the legitimate basis for the application of criminal law itself,according to the characteristics of water pollution and the violation of personal legal benefits,the concentration,time,scope of impact of discharged water pollution,and even nearby water bodies should be comprehensively synthesized.Self-cleaning ability is used as a condition for punishment other than the illegal constitutional elements such as the use of privately installed hidden pipes and infiltration pits.Fourth,establish criminalization standards that exceed the standard or total.The total discharge of key water pollutants is centered on the water quality standard,which is an objective limitation on the environmental capacity of the water resource itself,and is the goal of water pollution control.The water pollution discharge standard is a specific operation method to achieve this goal.It is clear that it is not allowed to discharge more than the total amount and constitute a crime beyond a certain limit.It is not only the continuous development of the basic principles of the Water Pollution Prevention Law,the result of administrative punishment and criminal punishment,but also the urgent need for water pollution prevention work in the new situation.Fifth,the jurisprudence limitation of the criminalization function of the pocket clause.On the basis of clarifying the judgment room and operating boundaries of "severely polluted environment",the functions of the bottom-up clauses in preventing water pollution and filling the loopholes in punishment should be fully utilized,and the judges should be given appropriate discretion.Second,consider the multiple discretionfor water pollution environmental crimes.First,water pollution crimes should highlight the application of the prohibition of employment.Prohibition of employment is not a punishment,but a non-penalty punishment measure of a security nature.The use of professional convenience in water pollution environmental crimes is that the actor's behavior of polluting water bodies is closely related to occupational characteristics and occupational requirements.As the actor has significant unreliability and unsafety when engaged in production activities,causing serious pollution of water bodies.occur.In most cases,there is overlap and intersection between the use of professional convenience and violation of professional obligations,so the need for a clear distinction is not great.However,in water pollution environmental crimes,some inaction crimes and negligent crimes still have independent judgement significance whether they violate professional obligations.Second,water pollution crimes should focus on the application of illegal income recovery.The recovery of illegal income is an equal measure of improper gain,which is neither a penalty nor a security punishment.It has independent legal attributes.The recovery of illegal income has the characteristics of property,and has nothing to do with the legal effect of human nature.The review of the recovery of illegal income follows the existence of a criminal offence of water pollution-whether there is illegal income due to the wrongful act-examining which entity obtains the illegal income-confirming the scope of the illegal income that should be recovered.Finally,water pollution crimes should emphasize the application of ecological restoration systems.Ecological restoration is a non-penalty penalty method.Considering that the content of ecological restoration includes not only the restoration at the natural environment level,but also the ecological restoration and ecological compensation at the social level,the way and extent of the water environment damage in practice and the defendant's own restoration of the ecology directly The ecological restoration measures should not be limited to a single direct restoration measure,such as the actual possibility,and appropriate restoration methods should be selected according to the actual situation,including three forms of direct restoration,alternative restoration and compensation restoration."The law is not the subject of ridicule," and legislation cannot be changed overnight to avoid losing its stability.Under such circumstances,how can the criminal discretion for water pollution environmental crimes not only meet the requirements of the ecological civilization and beautiful China construction policy,adjust and improve with the times,but also conform to the scientific criminal law theory.The criminal law doctrine method may be a policy,The communication bridge between law and judicial practice,and the central issue of the article is how to communicate with this bridge. |
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