Research On Environmental Criminal Policy

Environmental Criminal Policy as the most important part of the Comprehensive Management Measures of environment in the country, is a general term for the proper use of Non-penalty measures and Punishment measures to protect environment Strategy and Policy. A comprehensive guide to Environmental Criminal Policy of our country should be in the Criminal Policy of combining punishment with Leniency and Environmental Protection Policy, combined with China's social and economic development and Environmental Governance to make. In this paper, the contradiction between the ecological environment security and social and economic development as the starting point, with the right to survival and development of human strife for the spindle, detailed and deep analysis on the Environmental Criminal Policy, and finally puts forward the conception system of China's Environmental Criminal Policy.The paper is divided into six chapters, the main content of each chapter is as follows:The first part is the Introduction.The research background, research motivation and purpose, research status and research contents and methods four content. Research on the Environmental Criminal Policy is the need of sustainable development of economy, is in need of transformation of industrial civilization to ecological civilization, the urgent need is the development of Criminal Law, therefore, is of great theoretical value and practical significance. Environmental Criminal Policy in all countries of the world need to learn from other countries based on the existing achievements on the Environmental Criminal Policy, combined with their own actual situation of economic development and the characteristics of Environmental Crime. The research method of this paper is a combination of multi-disciplinary approach, combining inductive and deductive method, and the method of combining empirical analysis, qualitative analysis and quantitative analysis method of combining. The focus of this study include Environmental Legislation Environmental Criminal Policy, Criminal Justice Policy implementation, Environmental Criminal Policy the ethical basis and analysis, Environmental Criminal Policy and Criminal Policy theory model of Environmental Criminal Law conversion restrictions, for basic theory research of other Environmental Criminal Policy, independence and other issues such as environmental pollution crime the Strict Liability in the Environmental Crime, the Causality Presumption Principle, Environmental Legal Interests are included.The second part is the introduction to Environmental Criminal Policy.This chapter focuses on the basic problems of Environmental Criminal Policy analysis. In the first section, mainly is carries on the analysis on the concept of Environment and Environmental Crime. The author of the "environment" and "environmental crime" based on the comparison and analysis, tries to make a precise definition of "environment" and "environmental crime"; the author of Environmental Crime and administrative complexity from property characteristics, environmental behavior, the diversity of the object of Environmental Crime and environmental consequences of the special four a detailed analysis of the characteristics. In the second section, the author analyzes the definition of Criminal Policy and Enviromental Criminal Policy, and on the basis of the analysis of the characteristics of Environmental Criminal Policy, guidance, and flexibility in the system, and points out that the three kinds of the origin of the Environmental Criminal Policy, such as policy documents the party and government documents, judicial organs and party and state leaders of the report and the formal speech, and the guiding function of Criminal Policy, Environmental regulation function and the link function analysis. At the end of this section, the author mainly on the relationship between Criminal Policy and Criminal Law of environmental aspects of the analysis, the author thinks that the Criminal Policy has a great effect on the Criminal Law, and through the proper way in the Criminal Law reflected, in order to achieve its value function. But the Criminal Policy of criminal action is not without limits, need to be appropriately restricted by Criminal Law and the basic principles. Freedom and Order is the Environmental Criminal Policy and Environmental Criminal Law the common value basis, Environmental Criminal Policy in the Criminal Law, it is through two reflect the value to show the effect of Criminal Law. The key to achieve Environmental Criminal Policy value lies in the Environmental Criminal Policy value lies in the Environmental Criminal Policy value and content through some specific legislative procedures and standardization. This implementation is divided into two directions, namely in the Criminal Legislation and Judicial transformation direction.The third part is the implementation of the Legislation to the Environmental Criminal Policy.This chapter mainly studies the realization of the Legislation of Environmental Criminal Policy. Based on the analysis of the relationship between Criminal Policy and Criminal Law, the Legislation of Environmental Criminal Policy is an important way to realize the Environmental Criminal Policy. Environmental Criminal Policy through the legislation of the Environmental Criminal Law is implemented, the Environmental Criminal Legislation reflects the guiding role of Environmental Criminal Policy. The legislation of the Environmental Criminal Law is the process of macro environment protection strategy and the specific culture, is one of the substantial rationality into the form rationality. Lawmakers passed legislation of criminal activities effectively, will be reflected the essence of the value of the demand in the form of law. This chapter is based on the analysis of domestic and international Environmental Criminal Legislation, a profound analysis of the connotation of the value hidden in the Criminal Policy. This chapter is divided into three sections.In the first section, the main research in foreign countries the legislation of Environmental Crime. The analysis focuses on Germany, Japan, the United Kingdom and the United States and other countries of the Environmental Criminal Legislation and Environmental Criminal Policy contrast. The mainland legal system country criminal legislation of environment embodies the characteristics of codification and centralized, and gradually by the legislative mode of the subsidiary Criminal Law to the Environmental Criminal Legislation mode of traditional. In Anglo American law system, the legislation of Environmental Criminal Law by means of accessory Criminal Law, lack of statute law tradition, in specific application of Environmental Crime in general provisions of administrative regulations, without additional legislation. The countries of Anglo American law system because the administrative organ has great autonomy, not only can make the pollution of the environment, but also the formulation and adjustment, intervention of various Environmental Protection Plan, ready to intervene. Therefore, the Environmental Protection of the Anglo American law system in practice is mainly dependent on the environmental administrative regulations to adjust. In the second section, the author mainly analyzes the present legislation of the Environmental Criminal in our country, the main current situation, the Environmental Criminal Legislation of our environmental Criminal Legislation of Environmental Crime and the characteristics of the classification analysis. In the third section, mainly to the Chinese and foreign Criminal Legislation of Environmental Crime carries on the comparative analysis, conducted three focus problems, such as Environmental Criminal Law on administrative attribute of the dispute, in view of the final purpose to punish Environmental Crime behavior including the environmental management and recovery, and the comprehensive management of the environment is a dominated by the government's public management activities, for the regulation of Criminal Law and the administrative rules and regulations of two kinds of means, the administrative behavior is the most basic, the most effective means of governance. Therefore, the government can under the consideration of the relationship between economic development and environmental protection and measure multiple conflicts of interest under the balance of value on the basis of the administrative legislation enacted environmental quality standards, and establish and perfect risk control mechanism in the area of the environment. And if, in the controversial issues in the crime strictly the author thinks that the criminal responsibility, for the environment crime is lack of special care, in order to facilitate the investigation of Environmental Crimes, to facilitate judicial operation should be Strict Liability to the environment pollution crime; moreover, the independence of the Environmental Law, the author thinks that the traditional theory of Criminal Law, the importance of Environmental Law understanding is not enough, the important position of environmental legal interests should be established in the Criminal Law. In addition, the extraterritorial Criminal Policy environment presents five characteristics, namely, respectively is the range of attention, the Environmental Criminal Responsibility on the environment and ecology benefits, pay attention to the enlargement of the diversification of punishment offense and negligent crime, Environmental Criminal Liability and criminal environmental responsibility diversification mode etc.. Therefore, should learn from foreign legislation of the Environmental Criminal law domain on the basis of drawing on the experience of the criminal legislation of Environmental Crime and the concrete design.The fourth part is the implementation of the Environmental Criminal Policy to Judicial.The chapter mainly studies the implementation of the Environmental Criminal Policy to judicial. Based on the analysis of the relationship between Criminal Policy and Criminal Law on Environment, Environmental Criminal Policy also needs the Environment Criminal Judicial process can be achieved. Through the implementation of Environmental Criminal Policy in the judicial activities of spirit, the Environmental Criminal Policy as the pointer of judicial activities. The Criminal Policy of justice is the realization of Environmental Criminal Justice process is essentially to the spirit of the law to explore the process, is the process of specification to be revealed. The requirements of the functional to Criminal Policy as the basis, and ultimately to achieve the Environmental Criminal Policy on the value of the pursuit of freedom and order. Because in the judicial practice, Environmental Criminal Policy is based on the Environmental Criminal Responsibility can be realized, therefore, the research on the Environmental Criminal Justice Policy Implementation is to study the Environmental Criminal Responsibility. In the first part, mainly is the research on the elements of the Environmental Criminal Responsibility. The author thinks that the object of Environmental Crime, the Criminal Object according to the type of Environmental Crime is differently. The Objective aspects in Criminal Environmental Responsibility, Environmental Crime Behavior on the whole can be divided into two categories, namely pollution environmental crime and environmental crime behavior in Environmental Crime. Causality cognizance, the author thinks, traditional criminal causality judgment as follows by a method of proof if the prosecution to prove that the process, need to strictly based on the laws of nature, which for the traditional type of crime is not a problem, but it is powerless for the crimes of polluting environment. Because of special characteristics and pollution behavior of environmental pollution damage results, the Causality Presumption Principle to solve the identification of subject of Environmental Crime and the pollution of the Environment Pollution Crime causal relationship dilemma. And for the Environmental Criminal damage type, because of its characteristics of both criminal acts or consequences and the former were significantly different, the principle of causality should still apply the traditional; in the aspect of the subject of Environmental Crime, the author thinks that includes corporate and natural person. Crime Subjective aspect of the crime, can be considered by the the principle of presumption of fault and the burden of proof and so on, to solve the problem of Subjective Responsibility. But the discussion is in the prerequisite of improving the theory of Criminal Law and the principle of Fault Liability, taking into account the safety of the ecological environment is serious and the social and economic development. If a person cannot have the sufficient and reasonable evidence that the no intention and negligence, he should bear the Environmental Criminal Responsibility. In the second part, mainly study on the imputation principle of Environmental Criminal Liability. The author of the Environmental Criminal Liability of legality, the principle of punishment to crime,the principle of modesty,determining the causal relationship between the basic principles of the Environmental Criminal Liability, the principle of combining punishment and non punishment, property punishment, qualification penalty and freedom penalty according to specific principles are analyzed.The fifth part is the Construction of Concept Reconstruction and the Theoretical Model of China's Criminal Policy Environment.This chapter mainly revolves around two questions. The first section is the concept of the Reconstruction of China's Criminal Policy Environment. In view of the different Environmental Ethics will inevitably lead to different Environmental Criminal Policy. The contents of this section includes philosophy theory of environmental criminal policy according to the attributes, ethical values analysis, environmental ethics influence on China's Environmental Criminal Policy and China's Environmental Criminal Policy ought to choose four aspects. First of all, Environmental Criminal Policy based on the philosophy and theory is the relative freedom of action; Secondly, the author thinks that the nature is not human beings have the same intrinsic value and external value, and on this basis on the current account for the mainstream concept of environmental ethics view were analyzed. The environmental ethics values such as Anthropocentrism, Animal Rights Theory, Biological Center Doctrine and the Doctrine of Ecological Centre and so on. The Doctrine of Ecological Centre is the final stage of the development of human civilization, but apparently did not the current Criminal Policy Environment. And Animal Rights Theory and Biological Centrism is western traditional cultural background, value orientation and social differences and relations, is not suitable for China's current social and economic development. And the Human Centralism Ethics only the right to life and health of people, property damage as the basis for formulating the Policy Environment is not conducive to the protection of the Ecological Environment. Therefore, only Modern Anthropocentrism is suitable for the needs of the current Criminal Policy Environment. We should not only limited degree of Recognition of Human in the environment of the dominant position, should also be on the basis of attention to the human overall interests and long-term development goals, and grant the confining nature to appropriate moral concern, to realize human sustainable development and, ultimately, the Human Civilization to ecological civilization stage; In the second section of this chapter is construct of the Theoretical Model of the Criminal Environment Policy of our country. The author believes that China's Environmental Criminal Policy Theory Model should include Classification of Environmental Crime Hierarchical Responsibility System and the Environment Crime Punishment Model:On the one hand, in the Stratified Responsibility System of Environmental Crime, the author from the perspective of Criminal Policy Environment speak of Environmental Crime according to the violation of environmental factors of the size of the importance and the size of the environmental crime behavior is harmful to the society, environmental crime is the crime of environmental pollution, failure natural resources crime, crimes of animal abuse, primate crime and other five categories of environmental crime with damage to the environment supervision order. Then depending on the size of each type of environmental crime and violations of the elements of the natural environment and humanistic environment elements influence on human factor based, Environmental Criminal responsibility in accordance with the size of the from heavy to light order sequence, are polluting the environment crime, destruction of natural resources class crimes and crimes of animal abuse and destruction of environment supervision order crime and other environmental crime; On the other hand, the author put forward the Classification of Environmental Crime Punishment Model Construction. Due to the Environmental Criminal Liability System is a hierarchical system, with complexity, diversity of the characteristics. Therefore, the Environmental Crime the influence of environmental media on human harm the interests of ladder according to construct, including punishment measures of Punishment Model. In this new Environment Crime Classification Penalty Model, each kind of Environmental Crime should be according to the human impact factor size and the degree of social harm size, get their crimes corresponding punishment measures, so that ecological environment get the greatest degree of protection.The sixth part is the conclusion.This chapter puts forward the transformation of Environmental Criminal Policy into the Criminal Law should be limited. The author thinks, the Environmental Crime as a new crime, is the rapid development of social economy, the level of science and technology is highly developed and industrialized degree gradually deepen the negative effect which brings, is the inevitable product of social risks. This requires the Environmental Criminal Policy should be formulated based on comprehensive consideration in our country's Criminal Policy of combining punishment with Environmental policy Leniency in China. But the transformation of Environmental Criminal Policy also must be limited, Environmental Criminal Policy does not affect the Criminal Law completely. On the one hand the Environmental Criminal Policy as the Environment Governance within the framework of macro only in the Criminal Law, Criminal Policy with the aim of the utility values are reasonable. Beyond the scope of the Criminal Law on Criminal Policy with the aim of the utility value, is the destruction of the Criminal Law. On the other hand, because of the Criminal Law has limitations, can not fully reflect the value of the content of Environmental Criminal Policy, the Environmental Criminal Policy is not standardized and specific. Therefore, should avoid Environmental Criminal Policy is completely dependent on the Criminal Law to realize the value of the Criminal Law, namely the transformation of the Environmental Criminal Policy should be limited. The Criminal Law's restriction on the Environmental Criminal Policy is reflected in the process of Environmental Criminal Legislation, Criminal legislation is mainly through the techniques of specific norms of Criminal Law and the realization of the skill. The former refers to the Criminal Law can be selected according to the specific requirements of the relevant contents of the Environmental Criminal Policy, which is related to the social needs of legislation.