Research On The Constitution Of Environmental Crime

The environmental problem has been invading and threatening the normal existence and development of human beings variously which prompts the human beings to reflect on the relationship between themselves and the nature and emphasizes the punishment of environmental crime. The most obligatory final line of environment protection is the punishment of environmental crime through criminal law. The strictness of the criminal law to punish the environmental crime decides the dimension of environmental protection directly. The strictness of the criminal law to punish the environmental crime involves the problem that how to set the range of the punishment to environmental violations to exert the function of penalty. The range of the punishment to environmental violations is decided by the conditions of environmental crime which is called constitutive elements of environmental crime.There are both unity and conflict between the human's interest and the nature's interest. Environmental criminal law is in fact the result of human's choice of value and its standardization when there is conflict between the human's interest and the nature's interest. On the other hand, the value of nature itself can not be ignored. It is not only an important manifestation of human civilization, but also the development of environmental ethics. We must affirm the benefits of natural. As a foundation of environmental ethics, environmental criminal law can not be pure anthropocentrism, but also be pure non-anthropocentrism. It can only be a compromise of the two. The core of environmental ethics lies in which should be a priority when there is conflict between the human's interest and the nature's interest. That is the choice when there is conflict between the human's interest and the nature's interest. People can express their non-animal demand using their own subjectivity. So when there is conflict between the human's interest and the nature's interest, people have responsibility to control and regulate their own conduct. Human's basic survival interest benefits than the nature's interest, and the nature's survival interest benefits than the interest not belong to human's basic survival interest When there is conflict between the human interest and the natural interest. The object of environmental crime is a reflection of the nature of environmental crime, and it need to respect and follow the environmental ethics. The object of environmental crime is environmental legal interest. Environmental legal interest emphasizes on protecting both the interest which is related to the human beings and the nature's interest under certain conditions. It is always difficult to jump out of the cage of self-interest of human beings, so the law must be human-centric. Environmental legal interest treats human beings as the central inevitably. Generally speaking, human's basic survival interest benefits than the nature's interest, and the nature's survival interest benefits than the interest not belong to human's basic survival interest When there is conflict between the human interest and the natural interest. In order to protect the presence and good development of the nature, the act purely damages the nature should also be punished. Therefore, environmental legal interest contains recognition of the value of the nature. The recognition of the value of the nature should be selected and designed by the legislator according to the legislative background step-by-step. Environmental legal interest eventually need to find the relevance with the benefits of nature which should be protected independently when it does not conflicted with the human's basic survival interest.The tightness of harmful act system in environmental crime determines the tightness of environmental punishment. If violating the environmental administrative law is the element of the constitution of crime, the playing scope of environmental criminal law is bound to limit into the playing scope of environmental administrative law. The characteristics of environmental criminal law as the last line of defense are ignored. The broad playing scope of criminal law is ignored. The degree of flexibility of criminal law to protect the environment can not be realized. If violating the environmental administrative law is the element of the constitution of crime, it confused the relationship of protecting environmental management and environmental legal interest. Our environmental criminal law should build a system of harmful act which includes the act to destruct the natural resources, pollute the environment and violate the control of environmental protection directly. The system of harmful act performs as the protection of propagation (including fishery resources, forest, grassland), land, water, the atmosphere (including noise pollution through the atmosphere), mineral resources and others. The real damage offence, potential damage offence and behavioral offence should be set up in our environmental criminal law systematically according to the characteristics of environmental crime. The real damage offence should be set up in the crime of destructing the natural resources, noise pollution and violating the control of environmental protection directly. Based on the characteristics of environmental harm and the potential damage offence, our environmental criminal law should set up the potential damage offence. Our environmental criminal law should set up the potential damage offence in the crime of polluting the environment. The crime of dangerous substances should be set up as the abstractly potential damage offence. In addition, our environmental criminal law should set up behavioral offence in the crimes which have very serious harm carefully.The causality in environmental crime is special. The causality in environmental crime in the legislature and judiciary all over the world are often different from the causality taken by the traditional rules. The identification of causality in environmental crime should adopt presumption of causation rule. This demands us to clear the boundaries of presumption of causation rule in criminal law and procedure law. The reality of international environmental crime punishment, the public policy of "harmony" and China's economic and technological factors determine that the presumption of causation rule has a solid foundation. There are limiting conditions in the presumption of causation rule.The subject of environmental crime includes natural persons and units. Some of the natural persons in environmental crime should have special identities. Most of the environmental crime is conducted in economic activities such as production by the units, therefore, to find out the criminal responsibility reasonably and effectively have great significance. The units of environmental crime should have the conditions as follows: the legality of the units is a prerequisite of the subject of environmental crime. The people conduct based on the benefit of the units. The environmental crime must be from units a whole will. The environmental crime should be conducted by directly responsible persons or other staff directly responsible.The subjective aspects of environmental crime determine the efficacy of the penalty in a way. Strict liability is that it has not to prove the existence of a sin of the act if people cause serious harm when it is difficult to determine their subjective fault, which is based on the purpose of social defense. But there is an exception that people have evidence to prove there is no existence of a sin of their act. Strict liability is a particular attribution when it is difficult to prove the subjective fault. Its prerequisite is that the subjective sin is not clear. In the United States, the strict liability is consistent with absolute liability. In the United Kingdom and Canada, strict liability and absolute liability have different meanings. China's academic circles put forward the concept of relatively strict liability and absolute strict liability. In fact, relatively strict liability is consistent with the strict liability in the criminal law of the Anglo-American legal systems, whereas absolute strict liability is consistent with absolute liability in the criminal law of the United Kingdom and Canada. It is determined that our criminal law should not be provided for strict liability crimes that the harmonization of quality and quantity in our country's criminal legislation, constitution of crime in our criminal law, the violation of ethics, criminal policy and judicial status and other factors. The traditional theory of criminal law should be amended to punishing the environmental crime effectively. The criminal law should set up potential damage fault in the crime of polluting the environment. The moderating trend of penalty is a value philosophy and institutional orientation of tolerance, light and smoothing in the enactment, sentencing and execution of penalty. The crime of polluting the environment should be guided by the moderating trend of penalty and we should set limits to potential damage fault. Concretely potential damage often has happened and established when the act has implemented. We had better not set up potential damage fault in the crime of pollution of dangerous refuse temporarily.