| Nowadays,environmental criminal law ineffective practice shows that Chinese environmental criminal law just stay in the stage of "written law".From ultimate principle of the relationship between law and ethics,we conclude that if we want to propel environmental criminal law from "written law" to "practical law",eligibility of environmental criminal ethic is essential.Generally,we learned about three options for responding to the ethical basis of environmental criminal law are "anthropocentrism","non-anthropocentrism" and “modern anthropocentrism".However,by rigorous theoretical analyzing,all of above three theories are existing more or less theoretical defects.From the perspective of research methods,the use of environmental ethics to study environmental criminal law has some inadequacies in its methods:(1)Criminal law,as a product of policy science,has completely different characteristics from environmental ethics in value judgment and concept use.The same concept is not identical in the field of criminal law and environmental ethics.(2)Environmental ethics is not the same as environmental criminal law.The research object of environmental ethics is "ideal relationship between man and environment",which is the ideal state design for the future;the research object of environmental criminal law is "environmental behavior",which is oriented towards the present and has problems to solve.Different research objects determine that environmental ethics cannot provide legitimacy support for environmental criminal law,because the legislative design for “future”cannot be used to justify the “current” judicial activities.There are time and space differences between the two.(3)In the disciplinary system,environmental ethics is the applied ethics in the field of environmental protection,and criminal law ethics is the applied ethics of moral principles in the field of criminal law.Therefore,the environmental ethics to guide thelegislation and justice of environmental criminal law,to some extent,is to use the application of ethics in the environmental field to guide the application of criminal law,the selection of theoretical tools is not appropriate.With this in mind,this article uses the basic principles of ethics to revisit the issue of the "ethical basis of environmental criminal law."The paper is divided into 6 parts.The 1st part is Introduction.This part first introduces the reasons for the research questions,and believes that because the environmental criminal law lacks the proper theoretical basis of the theory,there is a "two skins" between the current environmental criminal law legislation and the judiciary.At the same time,this part reviews and evaluates the research on the three aspects of "criminal law and ethics","environmental ethics" and "environmental criminal law and ethics" in the "ethical basis of environmental criminal law",and proposes to study the ethics of environmental criminal law.The foundation must jump out of the old model of argumentation based on "environmental ethics" and turn to the path of research based on the basic theory of ethics.It is proposed that compared with previous research,this study is based on "interpretation",which is the human environmental behavior,the "ethical interpretation" of environmental criminal law using the principle of moral judgment;the previous research is "human" "Relationship with nature",facing "legislative proposals",do not conflict with each other.The 2nd part is the principle of moral judgment of environmental behavior.This department uses the basic principles of ethics to conduct detailed analysis and discussion on issues such as moral judgments,moral principles,moral consensus,and moral obligations related to the basic research of environmental criminal law.It is believed that the study of the ethical basis of environmental criminal law first belongs to the category of normative ethics in research orientation.Secondly,the issue of environmental moral judgment should adopt the value stand of obligation theory;once again,there are two environmental moral consensus,one is“environmental order”.The second is "survival".On the basis of two moral consensuses,the moral judgment principle of environmental behavior can be extracted.Finally,the implementation of environmental moral obligation is to respect individual rationality,and it is to recognize the individual's "self-legislation of oneself" and morality.The principle is verified by authenticity.This part focuses on and points out that in the era of multi-value,there are two moral consensuses in the environmental field: one is“environmental order” and the other is “survival”.These two moral consensuses are all derived from the close connection between the individual and the social community,derived from the individualized social life.Based on the ethical consensus,the derived environmental behavior ethics can be expressed as: individual behavior can not destroy the environmental order,and can not infringe the environmental order while causing violations of other people's lives and property.The moral principle integrates the two moral consensuses of “environmental order” and“guaranteeing survival”,reflecting the internal and external concentric circles between the two moral consensuses and the structural form of overlapping consensus.The environmental order is a firewall outside the moral consensus of "guaranteeing survival" and is an external barrier;"guaranteeing survival" is the core of the environmental order consensus protection.The “overlapping consensus” state is an internal structure that avoids the extreme situations that may arise from a single consensus.In the actual moral judgment,whether the behavior is "piercing" the outer circle of the big circle,or from the outside to the inside,"breaking through the layers of the big heart and the small concentric circle,it means that the behavior violates the moral principle and should be subject to morality.condemn.Moreover,if the behavior is not only to undermine the environmental order,but also to invade the survival interests of others at the same time,then this simultaneous "piercing" is to challenge both moral consensus at the same time,which is the worst,challenging the bottom line of citizen ethics.Serious misconduct should be subject to the most ethicalcondemnation.At the same time,in this part,the issue of moral obligations of environmental behavior is also discussed.The article derives two environmental behavior obligations according to moral principles:(1)environmental behaviors that undermine “environmental order” should not be implemented;(2)environmental behaviors that undermine“environmental order” should not be violated,and then the personal property of others should be violated.Since these two behavioral obligations are derived from moral consensus and are consistent with the individual's rational understanding,the external norms can be transformed into the internal “self-legislation”,so when the individual performs the obligation of behavior,he will not feel pain and be Mandatory.When individuals fulfill their obligations as if they were "doing themselves," the behavioral obligations and moral obligations are highly unified,which further proves the authenticity of the moral principles,and confirms the correctness of the choice of the obligation on the moral judgment of environmental behavior.The 3rd part is the specific moral judgment of environmental behavior.This section discusses two major sections: what is an improper environmental behavior and an environmental crime is a serious unfair environmental behavior based on the provisions of environmental ethics and the structure of ethical consensus.The unfair environmental behavior is manifested as:(1)the act of destroying the "environmental order";(2)the act of destroying the "environmental order" while infringing on the personal property of others.As far as "acts that undermine environmental order",the illegitimate nature of moral judgment stems from the destruction of the moral consensus of "environmental order",manifested in the failure to perform the obligation of conduct,and the loss of environmental resources caused by fulfilling the obligation of conduct.In moral judgment,the illegitimate nature of "destruction of environmental order behavior" has a degree of importance and needs to be distinguished.As far as "the act of destroying theenvironmental order and infringing on the personal property of others",the illegitimateness of moral judgment comes from the simultaneous violation of the two moral consensuses of "environmental order" and "guaranteeing survival".In the course of environmental behavior,death or injury to others;or loss of property to others.Because it is the simultaneous infringement of the two moral consensuses,there is a “superposition of the evaluation of the improperness” in the moral judgment,and because the behavior causes the death and injury and the property loss of others,in the overall moral judgment,it can be concluded Such environmental behavior is a conclusion of serious unfair environmental behavior.There are two main types of serious and unfair environmental actions that can be identified as environmental crimes:(1)"Acts that seriously damage the environmental order." There are three main judgment indicators,one is the number of behaviors,the second is whether the behavior violates the limitation of specific time and space conditions,and the third is the destruction of resources.As far as the“number of behaviors” indicator is concerned,the behavior repeatedly occurs repeatedly to confirm that the damage to the environmental order has reached a serious degree.The “number of actions” cannot be understood rigidly,including some quantitative provisions in legislation and judicial interpretation,as well as duration of conduct.As far as the “specific time and space conditions” indicator is concerned,the actor insists on continuing to act with clear instructions,indicating that the actor “knows and guilty”and ignores the subjective intention of the environmental order.As far as the “destruction of resources” indicator is concerned,the perpetrator has completely destroyed the resource for the sole purpose,and the behavior is controlled without any restrictive factors,which is the most serious damage to the environmental order.In addition to the above three indicators,“behavior objects” and “violation of behaviors against national laws and regulations” are not indicators for judging whether environmental behavior has reached a serious degree of misconduct.(2)"A behavior that infringes upon the interests of others bydestroying the environmental order." From the overlapping consensus structure of "environmental order" and "survival",the destruction of "environmental order" only pierces the outer circle of the big circle,is the type of behavior that threatens to survive;and the violation of "survival",It is the type of behavior that directly invades the inner and outer size and concentric circles at the same time.Including: in the event of serious damage to the "environmental order",it also violates the interests of the person and property;while destroying resources,it also violates the behavior of the person and property.The act of directly infringing on the interests of survival,that is,the act of infringing on “survival ” by jumping beyond the “environmental order” circle,even if it is based on environmental activities,there is no piercing of two moral consensuses.The effect is not a serious and unfair environmental behavior in moral judgment,but other serious misconducts implemented in the context of environmental activities.The 4th part is the application of the principle of moral judgment in criminal theory.Based on the conclusions of environmental moral judgment,this part analyzes the issues of legal interest,crime form,crime completion form,causality problem and criminal mentality.(1)According to the moral consensus structure of “consistent consensus of size and concentric circle”,the legal benefit of environmental crime is the dual legal benefit of “environmental order legal benefit ” and“survival legal benefit ”.The relationship between the two legal interests is also called the “blocking legal benefit” and the “behind layer legal benefit”,that is,the environmental order legal benefit is the blocking layer legal benefit,and the survival legal benefit is the back layer legal benefit,with the structure before and after.On the basis of "double legal benefits,front and back structure",environmental behaviors that only infringe on environmental order,after satisfying the requirements of behavioral indicators,establish environmental crimes;infringe on environmental order and then infringe citizens' survival and legal interests,and establish environmental crimes.At the same time,it is proposed that the judgment ofthe establishment or not of environmental crimes must be understood on the basis of the relationship between “the structure before and after,and advancement by layer”.Under the analytical framework of “double legal benefits,front and back structure”,environmental crime is a unified criminal form of dangerous and actual crimes.Infringement of the barrier law benefits,but does not cause any specific dangerous environmental behaviors to the back layer of benefits,not a crime,at most consider administrative violations.The violations of environmental crimes include the act of stealing and stealing,the act of safeguarding the survival of others,and the unauthorized use of discarded resources.The difference between statutory crimes and natural crimes lies mainly in whether the basic legal benefits protected by explicit legal order and order are integrated and accepted by the public.(2)In the "double legal benefit" structure,environmental crime can be understood as the unity of behavioral offenses and outcomes.Because the environmental crimes are completed,the actual violations are formed in the legal order of the environmental order,which is the behavioral offense;in the level of survival and legal benefits,since the results of the actual harm have not yet appeared,it is the result of the intervention.A dangerous criminal is a concept that corresponds to a perpetrator,not a concept that corresponds to the result.Danger is also a "result" in the sense of criminal law.Under the premise of identifying environmental crimes as the result of crimes,it is necessary to add environmental protection to environmental crimes.The practical significance of legislation is not great.(3)The dual legal benefit structure determines that the completion status judgment of environmental crimes needs to be judged separately by two levels.Due to the particularity of statutory crimes,the violation of the legal benefits behind the law of law and order,the behavior must "penetrate" the legal interests of the order in order to achieve the purpose of infringement,so although the judgment of the state of the two states is to be carried out separately,but at the level of the two legal interests In the judgment of the attempt,the two have coincidence.At the same time,in thecase that the survival benefit is not seriously damaged,the attempted judgment of the violation of the legal benefit can be “retreshed” to the level of order law and benefit,and whether or not it is judged.(4)Under the guidance of the dual legal structure,the causal relationship of environmental crimes should be considered in two levels.At the level of order law and benefit,since the behavior of the actor is an action initiated by the “rules of behavior” and “outside the environment”,there is no problem of unclear judgment of causality.At the level of survival legal benefit,the causal relationship between behavior and the loss of survival benefits is not clear in most cases.Therefore,the causal relationship between the behavior and the damage to the survival benefit should be considered using the presumption method,and the defendant should be proved.The responsibility for causality does not exist.(5)According to the analytical framework of “double legal benefits,front and back structure”,environmental crimes can be both intentional and negligent.That is,the infringement of the barrier benefits is intentional,and the infringement of the behind-layer legal benefits may be either intentional or negligent.In other words,the subjective mentality of environmental crime is neither a so-called mixed fault nor a single mentality under monism,but a different mentality for different levels of legal interests,which requires hierarchical judgment.The 5th part is the application of the principle of moral judgment in penalty theory.The article believes that there are two moral consensuses in the moral principles of environmental behavior,one is "environmental order" and the other is "guaranteeing survival." The current environmental penalties,mainly due to the freedom penalty and fine punishment,only reflect the recovery function of the criminal law's moral consensus of "guaranteeing survival",which is the lineage of the traditional natural criminal penalty thought.Environmental crimes are different from traditional crimes.Environmental crimes are new products in which the market economy develops to a certain extent and society enters the stage of market economy and industrialized production.The main feature is thatcriminal behavior not only violates the "guarantee survival" consensus.It also violated the moral consensus of "environmental order." However,the current environmental penalties have not noticed this characteristic of environmental crimes.In the design of environmental penalties,the restoration of the moral consensus of "environmental order" has not been considered.Therefore,the implementation of environmental penalties is not satisfactory.In order to change this status quo,the function of giving environmental punishment a return to the "environmental order" moral consensus,the role of rebuilding social beliefs in the process of penal enforcement is an inevitable requirement for environmental punishment to achieve systemic change.On the basis of summarizing the causes of environmental crimes,combined with the principle of moral judgment,the ideal environmental penalty should have the following characteristics:(1)the function of restoring environmental order moral consensus;(2)should be linked with ecological restoration,reflecting ecological restoration Functional orientation,establish the concept of sustainable living;(3)the duration of execution must be matched with the long-term nature of ecological governance,the execution period is not fixed;(4)the diversity of punishment means;(5)the penalty is open;(6)should have criminals Experience.According to the above characteristics,the ideal environmental penalty has certain administrative punishment characteristics,and has the following contents:(1)Adding a sentence that requires specific administrative examination and approval,and implementing specific production and operation rectification measures;(2)Adding a penalty for implementing specific ecological restoration measures(3)Adding an enforcement manner for the execution of environmental penalties;(4)Adding a personal inspection method for the implementation of environmental penalties;(5)Improving the implementation of free penalties to enable the implementation of free penalties and ecological restoration measures Cooperate with each other;(6)Improve the penalty,and link the amount ofthe fine with one of the consequences of the criminal act or the governance of the crime.Since the ideal environmental penalty is significantly different from the traditional concept of punishment in terms of the concept of punishment,it is not appropriate to adopt the criminal law amendment,the subsidiary criminal law legislation,the single criminal law or the independent environmental criminal code,and the judicial interpretation method.A step-by-step approach is implemented.The 6th part is a summary of the main analysis conclusions of the full text. |
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