Perfection Of The Legislation Of Environmental Crimes

The environmental situation in China is getting more and more severly, so theenvironmental protection is a very difficult task. Because of many reasons, theenvironmental protection is ineffective. One of the important reasons is that the Criminal Lawdoes not sustain the environmental protection well. Thus it is of great theoretical and practicalsignificance to strengthen the research on the perfection of criminal legislation ofenvironmental crime.At the same time, the criminal law theory guides the criminal legislation practice, thewrong theory may mislead the practice, so accurately, criminal legislation needs the scientifictheory. In view of the criminal theory in our country, some originated from the past andcontinued errors, some deepened ceaselessly along with the development of the unstanding,some lag behind the times and should keep pace with the times. Namely, the criminal theoryof our country needs innovation. Therefore, innovation ideas are forward based on the theoryof some important problems of criminal law in order to perfect the environmental criminallegislation in our country.There are nine Chapters in this thesis apart from the Introduction.In the Introduction, the value of the topic and its status of studies, the connotation anddenotation of the “environmental crimes” in this study, the criminologic features of theenvironmental crimes, as well as the main content, the emphasis and difficulties, and theinnovation and methodology were introduced and defined.In the First Chapter, the achievements and defects of the environmental legislation inChina were thoroughly and systematically clarified. The legislation have defects. Firstly, Thecurrent criminal law has a significant defect on the design of criminal constitution of theenvironmental offences, main performance is the environment right are not as the directobject of crime in a lot of environmental crime is not, the interests of environmental law is notindependently put into the criminal law; Some serious environmental hazards behavior is notthe crime, for example, not only without intent offences to the environment in correspondencewith the negligent offences, but also without sufficient protection over some importantenvironmental states or resources; the current laws has not put the environmental right amongthe fundamental human rights, resulting to a wrong classification of what should be belong tothe restricted environmental offences into other categories. Secondly, In terms of legal consequences, criminally responsible is lighter for environmental crimes. The latter aspectincludes: The legal punishment configuration grade is less for Environmental crime; too lowpenalties prescribed by the law for environmental crimes; the configuration of specificenvironmental crimes are not so coordinated horizontally and vertically; non-penaltypunishments are too rare.The Second Chapter is mainly about the criminal policies and the criminal policies ofthe environmental. Criminal perfection of the legislation can not be separated from the thecriminal policy guidance; The criminal policy is the soul of the criminal law. The criminalpolicy for the environmental offences is of guiding significance for the legislation ofenvironmental offences. It is determining to some extent on the depth and width of theintervention of criminal law into the protection of the environment as well as on the setting oflegal responsibility of environmental offences.First it describes “tempering justice with mercy”, then it makes a depth demonstrationof our natural environmental criminal policy: The criminal policy for the environmentaloffences is determined not only by the basic criminal policy of “tempering justice withmercy”, but also by the national environmental policies.“Tempering justice with mercy” isthe fundamental criminal policy in China, and it goes all through the legislation, judgment andenforcement of criminal law. Due to the differences in the various components of society,“tempering justice with mercy” should be different implemented. The environmental policiesenshrined in China include:“prevention first, with prevention combined with control”,“thosewho cause pollution to be responsible for the recovery” and “to improve the environmentalprotection and management” and “Sustainable development”. Taking these policies gradually,the country’s environmental protection shows appropriate trend. Based on the severe reality ofthe environmental protection, the environmental criminal policy in China should be “tighter”in the future to encounter the environmental offences.In the Third Chapter, the purpose of the criminal is revolutionized and the purpose of thelaws for the environmental offences were discussed. Legal purposes is the creator of the entirelegal provisions. Criminal legislation must determine legislative purpose according to thereality of the situation, then, designs the legal provisions. So does the environmental crimelegislation.The purposes of the criminal law are both punishing the offences and protecting thehuman rights. Meanwhile, the purposes of the criminal law are also relative. Thus it is recommended to redefine the purpose of the criminal law as:“In order to punish and preventcriminal offences, protect human rights, and maintain the overall order of our State…”Subsequently the purpose of laws concerning environmental offences can be “in order topunish and prevent environmental crimes, protect the environmental human rights, andmaintain the overall order of environmental law.”The studies on the purpose of criminal law are of great significance for the perfection ofthe laws concerning environmental offences. The formulation of “overall legal order of theState” and “protection of human rights” would help to put the caution of penalty into practicein the desired way, and determine the range of criminal offence; the formulation of “legalorder of the State” would help to broaden our minds in determining the accusation of thecrimes; the formulation of “punishing and preventing criminal offences” would toleratemultiple way of criminal liabilities for environmental crimes.In the Fourth Chapter, the connotation and denotation of the environmental right wasdefined. It expands the purpose of environmental legislation. The purpose of environmentallaw legislation is “in order to punish and prevent environmental crimes, protect theenvironmental human rights, and maintain the overall order of environmental law”, so it isnecessary to study environmental right, which is a part of “the national environmental legalorder”.The environmental ethics is the ethical and moral basis for the environmental right. Itdefined the subjects and content of the environmental rights. The concept of sustainabledevelopment has been recognized by the international community and many sovereigncountries. It has also been confirmed by the ideology, state policy and laws in China. Thus,the concept of sustainable development should be taken as the ethical basis for theestablishment of the environmental right in China. Based on it, the subjects of theenvironmental right were limited to the human, who can be an individual person, acorporation, the nation and the entire human being; the objects of the environmental rightswere the elements and the set of elements that constitute the content of human surroundings;the content of the environmental right is the right to enjoyed in the safe and comfortableenvironment by the subject for survival and development.To outline the status, connotation and denotation of the environmental right is of greatfundamental significance for a proper orientation of the environmental resources protection bythe criminal law. In the future amending of the criminal code in China, the environmental legal interest (Rechtsgut) can be taken as the constitutive element for the objects of the samekind in classifying particular crimes; in this way the environmental crimes can be emphasizedwith a systematic status with the crimes of violating the environmental rights or harming theenvironmental legal interest; and an earlier intervention of the criminal law in environmentalprotection can be realized. Meanwhile, it should be noticed that the environmental right has astandard metrological feature, and the accusation of the environmental crimes largely dependon the environmental criteria.In the Fifth Chapter, the opinions on the perfection of the theory of the crimeconstitution and the constitution of the environmental crimes are studied. The constitution of acrime is the legal standards; By the legal provisions, the establishment of conditions ofenvironmental crime are finalized. So the criminal legislation must show the constitute thecrime which it is based on and the corresponding theory. Especially in China, our“four-element doctrin” theory impacted by the “three-element doctrin” theory in German andthe “two-tier prosecution and defense” model in England and American, we must comparethe pros and cons of different modes to further strengthen the determination and confidence touphold the “four-element doctrin” theory. So, firstly, the lack of the “three-element doctrin”and the “two-tier prosecution and defense” model and the advantages of “four-elementdoctrin” model were demonstrated. Secondly, the “four-element doctrine” for the crimeconstitution as well as the “three-element doctrine” and the “two-element doctrine” derivedfrom the “four-element doctrine” were analyzed, and the “four-element doctrine” wasconsidered better than the other two, which further enhanced the determination of insisting thefour-elements doctrine in crime constitution.Of course, adopting four elements does not mean we bear all of them, we advocate thatwe shoule give the “four-element doctrin” necessary innovation. The main point is: Not onlyshould the crime constitution in Chinese discourse be comprehended on its substantivemeaning, but also it should be noticed that the four elements of the crime constitution inChinese discourse are hierarchical rather than flat. That is to say, each criminal elements ofthe crime is a “group” rather than “a”. The theft, robbery, embezzlement of public funds are agroup of "four elements" rather than a “four elements”. Unfinished form and the commonpatterns of crime also explains that the crime constitutes of the most specific crime is a groupof “four elements” rather than a set of “four elements”. Then the order of the “four elements”should be “object elment---objective element---subject element---subjective element”. In addition, the “four-element doctrin” must be improved aimed scientificly.On this matter, the four elements of environmental crime are:(1) the object element of acrime should be the rights and obligations that is protected by the criminal law, violated by thecrime, and required for the accusation, and that constitute the entire legal order of the state;“the object of the crime” should also be re-defined, and the “social relationship that is broughtinto the protection of the criminal law” together with its material carrier should be defined asthe criminal object, ie, the “object element of a crime”. The object element of theenvironmental crime should be the environmental legal order that constitute the entire legalorder of the state, ie, the legal relationship of the rights and obligations on the environment,which is manifested by the sever harm to the environmental human right or the violation of asignificant environmental obligation.(2) The harmful behavior on the criminal law, is theprocess that the perpetrator, under the dominance of his own will, have the certain conditionsthat is or should be under his control (ie, the tools that is utilized for crime) act on the objectof the crime; the criminal causality is the objective element of the crime. As for the objectiveelement of the environmental crime, the violation of the administrative and civil lawsconcerned to the environment was deemed as the premise, and the environmental harmfulbehavior should be harmful to the environmental legal interest (right); the significance of thebehavior frequency should be emphasized; for the crimes that is guilty only with harmfulresults or the crimes with the results as the criteria for aggregated responsibility, particularsever environmental harm, as well as the causality between the environmental harmfulbehavior and the particular sever environmental harm, are the objective elements.(3) Theperfection of the subjective element badly requires the analysis on the matters of indirectintent vs. over-confident failure, criminal purpose vs. criminal motivation,“objectiveexcess-element” doctrine, expected possibility, strict responsibility, etc. For the fault of theenvironmental crime, the following should be noticed: Firstly, the criteria for the fault inChina is the cognition of the perpetrator on the causality between the behavior and the results,and the perpetrator’s cognition and will on the harmful result rather than merely on thebehavior proper is emphasized. Secondly, the fault per se is not a purely objectivepsychological fact, but also a value judgment on the psychological facts. Thirdly, as manyenterprises violated the environmental criteria once and again in production or sewagedischarge even warned or punished for many times, their violation is intent in reality, intentoffence of environmental crimes should be specified. The Sixth Chapter is on the research of the boundaries between criminal offenses andcivil and administrative offenses. Setting environmental crime must follow the “four-elementdoctrin”, the key part is the crime and offenses boundary. We can study at both macroscopicand microscopic layers. Macroscopically, it is to be studied on the purposes, the legal intereststo be regulated, the legal responsibilities of the civil, administrative and criminal laws.Besides, in the legal context in China---the Article13of the Criminal Law. Microscopically,based on the “four-element” doctrine of criminal constitution, the specific criteria indistinguishing criminal and administrative offenses should include four aspects: the nature ofthe social relationship offended, the objective aspect of the behavior, the subjective aspect ofthe behavior and the subject element. Among them the “scale” restriction to the socialharmfulness of the offenses should be noticed. The previous macroscopic and microscopiccriteria should be followed in distinguishing environmental criminal offenses and delinquentbehaviors. In particular, pay attention to the limited nature of the crime on the high amount ofsocial harm.The boundary of crime and civil law and administrative violations relates to theunderstanding of Article13of the Penal Code. Constitution of Crime is the only legalstandard for crime. Article13means the behavior that does not meet the crime constitutes.Thus, Article13takes correspondence relationship between the limited amount of specificcrimes; the conviction plot Content within the meaning of Article13of the Penal Code, beinclusived in our crime constitutes.To grasp the boundary of the environmental crime and the general environmentalviolations, we shoule be from both macroscopic and microscopic layers and comply with theaforementioned rules. Microscopically, the significance of environmental social relationshipoffended the differences in the objective aspect, the subject aspect of the environmentalharmful behaviors, as well as the subjective aspect of the perpetrator become the concretecriteria for distinction.In the Seventh Chapter, as for the innovation of potential damage offence theory andwhich is in the environmental crime legislation. The innovation of the potential damageoffence theory: Firstly, should accurately distinguish the risk of the behavior (harmfulness),risky status resulting from the harmful behavior implemented, risk result (risky status) of thepotential damage offence as the criteria of accomplishment of the crime, and the potentialdamage offence itself. Secondly abstract potential damage offence and concrete damage offence is a classification. They are different in accusation. The accomplishment criterion ofabstract potential damage offence is the abstract risk result caused by the behavior (actualpotential damage offence), but in the legislative description and judicial determination it canbe treated as the “delictum commissivum”(the accomplishment of the abstract potentialdamage behavior was taken as the criteria of the accomplishment of the offence). In theaccusation of the concrete potential damage offence, both the potentiality of the behavior andthe risky status are restricted. But as there is no subsequent risk result without risky behavior,the concrete risk result is restricted particularly in the accusation while the risky behavior isalways not restricted.For the potential damage offences in the environmental crime, firstly,“what washarmed” should be precisely grasped. In this study, the direct object element of theenvironmental crime is the environmental right, thus, the “risk” here is the risk to theenvironmental right rather than that to the traditional legal interest (life or health or property).Secondly, The crime threshold in German and Japanese is lower, and criminal law does notonly punish the preparatory acts, but also the attempted offenses. Thus the dangerouscriminals and the result of a crime relates to a specific behavior that is crime or not. Thirdly,However, the principle our country is to punish crime preparatory, not to mention theattempted guilty. Therefore, even if some kind of dangerous criminals is not consummatedand becames the result of guilty, we can make use of the criminal law on the punishmentpreparation for crime or punishment attempted provisions to make up the legislative flaccid.Thirdly, it is sufficiently excused to establish concrete environmental potential damageoffences in legislation, while it is not so suitable to establish abstract environmental potentialdamage offence. Fourthly, the crimes of smuggling wasteful materials, illegally disposingimported solid waste and unauthorized importation of solid waste, as well as negligenceresulting to significant environmental pollution should be set as potential damage offences.The Eighth Chapter is about the innovation of legal responsibilities theory and the legalresponsibilities in environmental law. An offensive fact brings not only criminal responsibilitybut also civil and administrative responsibilities; the relationship among the three types ofresponsibilities concerning the offensive fact should be considered wholly. The configurationof the legal responsibilities should follow the principles of nulla poena sine lege (no penaltywithout law), self-responsibility, caution of penalty, due process, autrefois convict (nobody tobe punished twice for the same offense) and no offense omitted, as well as balance between the offense and its legal responsibility that the criminal responsibility should be the main, withnecessary civil and administrative responsibilities added.Liability on environmental crime, firstly, as for the defects in the current system ofprincipal penalties, it is recommended:(1) that the highest limits of law-prescribed penaltyshould be raised in a few environmental crimes;(2) that more grades should be added to thelaw-prescribed penalties, including raising the law-prescribed penalties of some crimes tolife-long imprisonment (there are two grades to the most in the law-prescribed penalties forenvironmental crimes, with only one grade in some crimes, under current law);(3) and thatnot only the coordination between environment crimes and other crimes but also thereasonable arrangement of the grades of law-prescribed penalties of each environmental crimeas well as the coordination of criminal responsibilities among different environmentaloffenses should be paid attention. Secondly, as for the defect of the setting of accessorypenalties in the current law, it is recommended that:(1) provisions should be added that thecriminal be prohibited in undertaking particular profession or activities; the criminal corporatebe prohibited in undertaking particular business, or be ordered to close down or be deprivedfrom undertaking particular business temporarily or permanently, or even be dissolved.(2) Asthe penalty of confiscating the property works in inhibiting the offenses of greediness (finesalso functions in this aspect), and is functional in deterring the criminal fundamentally (notreplaceable by the penalty of fines), it is of special value if the crimes of illegal mining andthose concerning wild animals and plants be punished with confiscating the property. Fourthly,Aiming for a better regulation against environmental crimes, the system of penalties should bereasonably renovated: alternative punishments such as alternative impositions of short-timedetention and fines should be added; a system of rehabilitation from the harm caused by theoffenses should be established. Lastly, As for the non-penal punishments, in the author’sopinion, they are still in the categories of civil or administrative responsibilities in nature,among the civil and administrative punishments, rather than “an approach to the realization ofcriminal responsibility”.The Ninth Chapter is about the specific research of the position of the environmentalcrimes and the perfection of individual crimes. Firstly, China should continue thecriminalization of the harmful behaviors to the environment in order to further tighten thetoils of the environmental criminal law; and that all environmental crimes should put in aseparated chapter in the specific provisions part of the criminal code---it can be the Fifth Chapter following the chapter of “Crimes that Violate the Corporal and Democratic Rights ofthe Citizens”. Secondly, advices for revision the existing environmental crimes include:(1) toadd an (intent) environmental pollution crime corresponding to the negligent environmentalpollution crime;(2) the main points in revision the crimes concerning wastes are that: theinstitution of the current law on the crime concerning wastes should be breached, the crimesof illegal disposal of solid waste and unauthorized importation of solid waste should beabolished, and new crimes of illegal importation of waste that is banned to import, illegalimportation of waste that is restricted to import and illegal importation of waste that isautomatically permitted should be added, while the crimes should be distinguished from eachother in the accomplishment modes in accordance with the hazardous level of the wastematerials; the extent of the legally-prescribed penalty of the crimes concerning waste shouldbe raised appropriately.(3) The main revision on the crimes concerning wild animals and wildplants is to increase the punishment and raise the extent of legally-prescribed penaltyappropriately, as well as add grades of legally-prescribed penalties and introducing inqualification penalties.(4) Revision on the crimes of destruction of land resources is mainlyto remove the first quantity criterion on the crime of illegal occupation of farmland whilemaintaining the latter one, and to increase the punishment on the crimes of destruction of landresources, raise the extent of legally-prescribed penalty, add grades of the legally-prescribedpenalties as well as introducing in qualification penalties.(5) The main points of the revisionon the crimes of destruction of mineral resources are to raise the maximum legally-prescribedpenalty, add grades of legally-prescribed penalties, and introducing in qualifications penalties.Thirdly, new environmental crimes such as noise pollution, destruction of grasslands anddestruction of wetlands are proposed to be added. Lastly, the numbers and the frequency ofthe harmful behavior, the configuration of qualification penalties in the environmental crimes,the recovery system and the adoption of measures recovering the environment, as well as theprovisions on the corporate environmental crimes should be made special provisions.