Research On Environmental Pollution Crime

Environmental Pollution Crime is the worst pollution activity in the legal field,the legal regulation of Environmental Pollution Crime is a significant way of Environmental risk management.Although China has legalized Environmental crime since 1997,but the "Environmental pollution accident crime" has barely been applied in a long period.Given the environmental crisis and people's increasing environmental demands,China has revised the "Environmental pollution accident crime" into "Environmental Pollution Crime",lowering the incriminating threshold of the behavior causing serious pollution.However,our academic research is still hovering among some limited propositions,such as "How to identify the causal relationship of Environmental Pollution Crime","what is the legal interest of Environmental Pollution Crime" and "how does Environmental ethics affect Environmental Pollution Crime".As a matter of face,our academic research has not kept the pace of the fast-changing legalization.In the last few years,we have put a lot of attention to the study of "Doctrine study of Criminal Law",but few scholars use it to analyze Environmental Pollution Crime,which is a great pity.Criminal law is not only the rules guiding people how to act,it is also the rules that should be applied in Criminal justice,only by which can shape the authority of"rule of law".The legislation of Environmental Pollution Crime has been affirmed by different social strength,Media reports on the situation of punishing the Environmental Pollution Crime has increased significantly,we can instinctively feel China is strengthening the fight against Environmental Pollution Crime.Nevertheless,what is the real difference between "Environmental pollution accident crime" and"Environmental Pollution Crime" in Criminal justice?Are the academic studies of Environmental Pollution Crime consistent with the real problem?How much potential do we have to reinforce the regulation of Environmental Pollution Crime?Questions like these cannot be answered by pure theoretical research.Therefore,this dissertation intends to conduct an empirical analysis of Environmental Pollution Crime with the purpose of finding the real problems and making some contributions to China's environmental protection.Chapter 1 briefs the legislation on Environmental Pollution Crime and then analyzed 2862 judgments of the first instance about Environmental Pollution Crime from 2011 to 2016.It makes summary of the origin of cases,the level of trial,criminal subjects,the basis of ruling,whether causing economic losses and so on then uses them as a basis to make vertical analysis of the application of Environmental Pollution Crime.Later,this chapter analyzes 2255 cases of Intentional Injury and 339 cases of the crimes of disrupting public service happened in Zhejiang province in 2015 and summarizes the data such as the application of the sentence,the probation rate of free penalty and others,then compares them with relevant cases of Environmental Pollution Crime.The result shows that the proportion of probation for the defendants of Environmental Pollution Crime who were sentenced to a free penalty is lower than the defendants of Intentional Injury.The crime of disrupting public service as a traditional statutory crime,its rate of detention,the imprisonment for less than one year and the probation is higher than Environmental Pollution Crime.In other words,China's current regulation of Environmental Pollution Crime is very strict,not only more than statutory crimes,even more than traditional natural crimes in some parameters.After vertically and horizontally analyzing the crime of polluting environment in judicial practice,it is found that the regulation of pollution crime in our country is too sensitive to criminal policy.This phenomenon stems from the punitive tradition of crime control in our country.The interaction between criminal policy and criminal law is necessary,but the utilitarianism and volatility of criminal policy should not corrupt the impartiality and stability of criminal law.To standardize the application of Environmental Pollution Crime,we first need to carry out scientific and meticulous theoretical interpretation of Environmental Pollution Crime to unify the understanding of Environmental Pollution Crime in the academic and practical circles.Chapter 2 clarifies legal interest of Environmental Pollution Crime and proposes the core opinion in the paper,namely legal interest of Environmental Pollution Crime is neither the traditional legal interest of person or property nor non-human-oriented ecological legal interest,but is the environmental interest of humans.In the chapter,Sino-foreign criminal law circle settles the theory of Environmental Pollution Crime in detail,states,legal interest theory of pure ecology in criminal jurisprudence of German and Japan,pure human-oriented legal interest theory,human-oriented legal interest theory of ecology,legal interest theory of administration,legal interest theory of individuals,public property theory of life and humans in next generation,health theory,value and principle theory of constitution,and the comprehensive theory,and then introduces theory of environmental protection system,environmental protection system,environmental social relation,environmental rights,ecological legal interest and composite legal interest of Environmental Pollution Crime.Domestic and overseas academic circles have some basis and explanatory power on the theories of Environmental Pollution Crime,but all of them have relatively serious defects.It is impossible to embody peculiarity of Environmental Pollution Crime accurately and can't provide definite,uniform and operable standards for annotation for elements of constitutive requirements and criminal forms of Environmental Pollution Crime.The Environmental Pollution Crime must insist in being human-oriented.Its legal interest firstly should be an interest of humans,instead of traditional personal or property interest or environmental consumption interest.Instead,it is an environmental interest about survival of normal life.The core factor is the environmental quality suitable for human survival.Chapter 3 explores the results of Environmental Pollution Crime under the guidance of the concept of human-oriented environmental interests.The legal interests violated by Environmental Pollution Crime are the environmental interests of the people,and the core of environmental interests is environmental quality.In view of this,the essence of Environmental Pollution Crime is the damage to people's environmental interests,or it can be said that the behavior of environmental pollution damages the life quality suitable for people's normal life.In fact,the current academic controversy over the consequences of Environmental Pollution Crime to a large extent is precisely because of the failure of scholars to adhere to the human-oriented concept of legal interests.Instead,they adopt a non-human-oriented view of legal interest,resulting in blurred result of Environmental Pollution Crime and further causing the intentional or unintentional chaos when talking about the consummated state of Environmental Pollution Crime.According to the current legal norms and judicial cases,Environmental Pollution Crime is a result offense,covering the danger result and damage result meanwhile.Therefore,Environmental Pollution Crime actually has a complex state of consummation:the consummation state of potential damage offense(material potential damage offense)is the general result offense of this crime and the consummation state of actual damage crime is the aggregated consequential offense of this crime.In the view of human-oriented legal rights,we should understand the "pure environmental damage" of Environmental Pollution Crime as a material potential damage.The reason is that the fundamental difference between Environmental Pollution Crime and other crime of abstract potential damage like the crime of dangerous driving lies in the change of objective world beyond human caused by the behavior of pollution,which means that the "pure environmental damage" caused by perpetrators' pollution has actually violated human environmental interests.This infringement is not abstract but completely specific and can be quantified by scientific means.Chapter 4 mainly discusses the subjective criminal form of Environmental Pollution Crime,which has a large dispute in educational circles.There are three opinions about subjective criminal forms in Environmental Pollution Crime,including fault theory,theory of deliberation and compound guilty theory.Fault theory is common in our criminal jurisprudence and advocates that doer should predict their behaviors of discharging,pouring or disposing hazardous substances may cause a serious pollution consequence,thus they don't foresee carelessly or have predicted and readily believed that they can avoid.The theory of deliberation is most consistent to the requirements of principles of legally prescribed punishment for a specific crime in the form.In essence,the theory of deliberation can balance legal interest protection and protection of human rights,designate the suitable range of penalty.Moreover,it can form the competition relation with other criminal forms,expand range of punishment,and reduce loopholes of punishment.Some scholars also call the compound crime theory as the vague crime theory,mixed crime theory or complicated crime theory.It indicates that subjectivity of Environmental Pollution Crime also includes deliberation and fault.Chinese and overseas penal laws have the principle of punishing deliberate crime.The law has no express stipulation to show that the crime of fault crime can be comprehended as deliberate crime.The judicial explanation of Environmental Pollution Crime also has articles of common crime,indicating that Environmental Pollution Crime in lawmakers9 opinions is deliberate crime constituting common crime.In addition,judicial practice since 2011 has showed that almost all crime cases relating to the environmental pollution have been punished as deliberate crime.As a result,the theory of deliberation has the sufficient basis in lawmaking and judicature of Environmental Pollution Crime.Chapter 5 conducted a study on the problem of joint crime of Environmental Pollution Crime.There are more than 900 in 2862 cases gathered in this paper involving joint crime.This means that one third of the cases of this crime are joint crime and the problem of the joint crime in Environmental Pollution Crime is of great importance which could not be denied and ignored.Influenced by the current criminal policy of severe crackdown on environmental crime,current regulation of the joint crime of Environmental Pollution Crime is very strict in out country,some cases of which have obviously arguable points in judgment.Some of the defendants having only assumed the door keeper opening or closing the door or only rented houses to the people who pollute the environment are also punished,improperly expanding the border of the accomplice punishment.The first thing to note for the cognition of complicity is that the role of subjective factors should not be overemphasized.Secondly,it must be recognized that even some "help acts" that do not compose a accessory offense objectively may have some causal relationship with the result of the constitutive requirements.So a simple causal study can not scientifically limit the scope of the composition of accessory offense.In judicial practice,the recognition of the accomplice of Environmental Pollution Crime should be based on the objective criteria of whether or not to create or raise the risk of human environmental interests.Only so,we can scientifically and accurately delimit the border of the accomplice of Environmental Pollution Crime in hundreds of thousands of complex cases.Then,the author proposes specific suggestions on how to perfect accuracy of Environmental Pollution Crime in practice.In the paper,the author thinks that how to improve professional and standardization of cases relating to Environmental Pollution Crime is urgent to be solved in judicature of the current crime relating to environmental pollution,in view of many factors involved in Environmental Pollution Crime and natural science elements.Environmental Pollution Crime has the obvious complexity.For example,judgment of causal relationship,confirmation of damages,calculations of environmental recovery costs should be dealt by professionals with the higher science level.Whether the judge can totally understand terms in expert opinions on environment and logic of drawing a conclusion,whether they can propose professional opinions of doubting,and whether they can understand defense opinions of the defenders relate to freedom of defendants and deprivation of treasure.It is significant.The judges can't only give the guilty verdict according to expert conclusion directly.In order to cope with professional problems of case hearing,China should consider construction of expert jury system in the existing legal framework,hoping to improve science level of doing the Environmental Pollution Crime cases.The phenomenon of "different judgments for sane case" in Environmental Pollution Crime is relatively prominent.Except for updating relevant judicial interpretation,it is necessary for us to value and further perfect case guidance system,issue typical cases of Environmental Pollution Crime more effectively,and promotes applicability of Environmental Pollution Crime.