The Applicable Theory Of Environmental Criminal Law

By research of methodology,the subject on the application of criminal norms of environment aims to improve current research in criminal law of environment to transform from the idea theory to the norm theory,and from the legislation theory to the application theory.It should achieve the goal of legal interests protection of environment and realize the unity of legal effects and social effects by applying the "criminal law of environment".The basic way to study the application of criminal law of environment in the perspective of methodology on the base of criminal law dogmatic is as followed--to analyse the logic structure,existence structure and applied structure of criminal law of environment,to probe the applied path from norms system,to regulating the purpose and to balance of the legal interest,to resolve the three-in-one triple regulation problem from the theory of value,procedure and method,and to try to make the type construction of the application of criminal norms of environment.Firstly,the analysis of the application of criminal norms of environment is the precondition of the application of criminal norms of environment.Static discussion on the structure of criminal norms of environment is to settle the epistemological foundation of the norms'application in practice,which starts from dividing criminal norms of environment into different levels.There can be three levels of recognizing the criminal norms of environment:From the level of logic,legal norms demonstrate a binary pattern of "component "+"legal effects";from the level of existence state,legal norms are embodied in provisions of law and the "legal system" consists of provisions;from the level of legal application,legal norms demonstrate legal syllogism pattern in the process of application,which is "the component leads to legal facts while legal facts lead to corresponding legal effects".Apart from these normal rules,criminal norms of environment has features as using a large amount of blank provisions,dispersed norms and administrative criminal law,which caused problems in cohesion of norms.Regulated provisions of environmental crime and penalty are the carrier of facts about environmental crimes,and the normative characteristics of environmental crimes are included in them.There are three linked features of our country's criminal norms of environment at the level of facts about crimes,which is administrative subordination,mixed blank facts about crimes,and norms misplacement.The criminal norms of environment is a typical criminal law of administration with the traits of administrative subordination initiated by administration prepositions;from the exterior perspective,administrative subordination demonstrates mix using of blank terms and narrative terms;because of the norms about environmental crimes are not regulated together,so there is no comprehensive norm system,at the same time,for the intrusion of criminal norms of environment and environmental administrative laws,the non-cohesion shows.Secondly,the applicable structure of criminal norms of environment is the dynamic development for the application of criminal norms of environment.The structural problem of criminal norms of environment lies in epistemology of criminal norms of environment,which is proceeding at the static level so as to lay a foundation of the application of criminal norms of environment.As the process of practice,the application of criminal norms of environment is some kind of judicial practice theory,which dynamically judge environmental criminal cases correctly by concrete methods.The process from static to dynamic is a gradual progress from epistemology to practice theory,and a process of identifying facts by norms and of judging,evaluating and verdict.To discuss the application of criminal norms of environment from the angle of methodology,it is necessary to set a way of thinking at first.From legal norm to social experience,and forms to essence,based on a thinking path like this,the process in methodology of criminal norms of environment should start from regulating the meaning of words in the system,and then is to measure the result of the previous step from the angle of value,whose objective standard is the measure of social legal interest.To set a limit to explaining texture of criminal law of environment is just a beginning,to find a proper legal intention will be the core issue of the application of criminal law of environment.For there are debates in theory about the legislation goal and normative goal of legal goal,the goal itself belongs to a value evaluation,but the objectification of value judgement needs estimation of legal interests,so legal interests occupy an important position in criminal norms of environment.Simply speaking in methodology,the application of criminal law of environment should follow the very steps:"norms system,regulating the purpose,balance of the legal interest".The final and last aim of criminal norms of environment is to realize the justice by integration of methods.The direction of thinking is also meant to make the usage of law become a process of argumentation and go through the examination of theories and practice.Thirdly,the regulation to the application of criminal norms of environment is the definition of the application of criminal norms of environment.If the judicial activism is our definite choice at this very moment,it would bring a problem that how to empower the people who apply laws with preventing them from going too far?Theoretically,in terms of the application of criminal norms of environment,the solution to the problems above is a three-in-one triple regulation,that is,the regulation from the theory of value,procedure and method.The value functions of criminal law of environment have multiplicities which involve balance of inner values,besides the functions of general criminal norms,it has a function of ecology maintenance.Specifically restricted by principle of legality,the application of criminal law of environment internally includes tense relation between formal justice and substantive justice.In the context of "risk society",the "values" that the application of criminal law of environment should be regulated is changing after introducing the thought of "legal interests of environment".Regulation from methodology is in fact the rank and order of various methods.However,the arbitrariness behind the supreme choice of value in methodology cannot be well restrained by methodology itself,so regulating through procedure is the only way to achieve the purpose of real justice,which is also a kind of choice of value.Methodology itself should also be restrained by the value theory.Legal methods are to legal purposes what means are to purposes.Thus,the triple regulation of the application of criminal norms of environment embodies the supremacy of the value theory in terms of purposes,the process of thinking from forms to essence in terms of thinking,the logical track from Habermas to Alexis,namely the transformation from ideal dialogue situations to rational rules in terms of theoretical argumentation and the restriction from the process theory to the methodology in terms of institutional guarantee.Typology will be the third way between legal interpretation and legal loophole in methodology of application of criminal law ofenvironment.Lastly,typology is the practical orientation of the application of criminal norms of environment.To introduce the typology into the research of criminal law of environment can analyze our country's criminal norms of environment at legislation level and discuss the problems in the application of criminal law of environment from the perspective of methodology.Although the theory of "Type" has been introduced to research.field of criminal law and has get more and more focus recently,the possible important functions of theory and practice significance haven't showed and released.Type is a unification of "true type of norm" and "significance type of system",that is to say,type is a unification of facts of experience and norms of laws,and a unification of system of norms components and significance requirement of value.Typology firstly admits the loopholes of law,but denies that filling up the loopholes by type is further development of la_w.From the perspective of thinking mode,typology transfers subsumption mode to equivalence mode from the beginning of practice,and admits the legitimacy and universality of analogy thinking,and admits that the essence of matters is the core of type.Since type is the unification of norms,facts and values that are generated by the core of type,the standard of type should be established on these three spheres.And this requires that there is no systematic logic contradiction of type at the norm level,and no experience contradiction of facts constitution,and no evaluation contradiction in value estimation.From the perspective of legislation,the typification of criminal norms of environment mode mainly shows as typification of crimes and typification of measurement of penalty,there are defects and deficiency to some extent in all these modes.Nevertheless,in the process of norms application in cases,the existence of administration prepositions and opening constitution components of criminal norms of environment gives enormous space for the application of typification.We should made typification formation at the level of application,we should realize by increase and decrease of components and the strength at the level of technique.The presupposition is to unfold on"essence of matters",and receive estimation of "anticipated possibility".As for the typification of criminal norms of environment at the level of application,we could unfold in area of action type,illegality type,consequence type.There is one thing to be sure,the anticipated possibility should be the bottom line and cannot be break through.