Research On Judicial Application Of Environmental Pollution Crime

With the increasingly serious environmental problems in the world and in China,how to protect the environment has gradually become one of the key issues concerned by the ruling party and the government.With the increasing efforts to deal with environmental problems,the concept of "green water and green mountains are golden mountains and silver mountains" has gradually become popular.Of course,in the process of environmental governance,law is one of the indispensable means.It can be roughly seen that although the legal network of environmental crime in China is more and more closely organized,on the one hand,there are not only administrative regulations regulating the problem,on the other hand,in the criminal aspect,the modification and improvement of it all reflect the realization of dual sanctions system for environmental problems.However,even so,the environmental problems in our country are becoming more and more serious.China’s criminal law has been revised many times,and gradually established the crime of environmental pollution.However,it is not clear how to correctly apply this accusation in judicial practice.It is necessary to further study the specific judicial application of environmental pollution crime.From the perspective of law operation,legislative expression is the normative basis of judicial application,so the investigation of legislative mode and content evolution of environmental pollution crime is the premise of judicial application of this crime.Based on the seriousness of the current environmental problems,both in the United States and Britain of the common law system,as well as in Germany and Japan of the civil law system,a large number of written laws have been adopted to deal with and regulate.In the United States and the United Kingdom,there is no unified criminal code for its special legislative provisions,and its related criminal penalties are scattered in different laws.In the concept of environmental protection,the characteristics are still significant.In Germany and Japan,the legislative models are diversified.In terms of substance and procedure,both Germany and Japan are no longer separated.China’s criminal law protection on environmental issues has roughly gone through three development processes: the initial stage,the development stage and the improvement stage.This legislative change is mainly a response to more and more serious problems.Although the crime of environmental pollution has gradually become more detailed and perfect with the emergence,development and modification,the regulation of the crime of environmental pollution in China also has obvious Chinese characteristics.The revised crime of environmental pollution in 2011 has greatly enhanced the deterrent force of criminal law by expanding the scope of application and reducing the threshold of entering the crime.In the content of the specific elements,that is,the actor based on a certain subjective purpose to implement the behavior of environmental pollution,serious environmental pollution.As far as the judicial application of this crime is concerned,the first thing that needs further study is the protection of legal interests.Although there are different legal systems and traditions between the civil law system and the Common law system,there is no substantial difference in the value position of environmental protection.Due to the different times,the legal interest theory reflected also presents the state of constant change and evolution.Similarly,since the crime of environmental pollution was created in China,there have been many oppositions such as "traditional interest theory","environmental legal relationship theory","environmental right legal interest theory","management order theory","ecological legal interest theory" and "synthesis theory".The opposition between "pure human legal interest theory" and "pure ecological legal interest theory" can be concluded by summing up the general viewpoints.Based on the current legislation and judicial interpretation in China,the legal interests of environmental pollution crime in China can be summarized as the theory of "Eco-human" legal interests,which is of great value and significance to judge the incrimination and completion criteria of various environmental pollution behaviors.From the perspective of judicial application,the judicial application of environmental pollution crime includes two stages of conviction and sentencing,in short,that is,whether a crime is committed,whether there is criminal responsibility and how to sentencing.Therefore,it is necessary to carry out further research on the specific application of this crime centering on the above content on the basis of clarifying the protection interests of this crime.Firstly,the application of the objective elements of the crime of environmental pollution,although the objective elements of the crime are relatively clear on the surface,there are still uncertainties in the judicial application process.First of all,it is not necessary to break through the boundary of article 96 of criminal law to determine the boundary and scope of "violating state regulations",and "violating state regulations" is consistent with the "mitigated violation monism".Therefore,in the existing legal system,it is necessary to further determine its scope and boundary by means of classification and analysis.Secondly,although the criminal law provisions and the relevant judicial interpretation stipulate the content of illegal disposal,there are certain misreading.In the specific identification process,it is necessary to further clarify its scope through the purpose interpretation theory.The interpretation should not only be placed under the overall ecological purpose,but also under the specific human purpose.Thirdly,how to identify the "serious environmental pollution",although there are "behavior identification standard","result identification standard","comprehensive identification standard" and "bottom line identification standard" opposite.However,from the perspective of semantic interpretation and legal interest theory,"serious environmental pollution" should be consequential crime.Therefore,it is necessary to reconstruct the specific scope of the results according to the criteria.Finally,causality is the basis and condition for determining whether the perpetrator should be held criminally responsible.The causality of the crime of polluting the environment is not only complex but also complex in theory.However,the existing theories can not solve the relevant problems.Therefore,based on the objective imputation theory,we can judge it through two levels: "creating the risk that is not allowed" and "realizing the risk that is not allowed" It can effectively limit the scope of punishment for the crime of environmental pollution.Secondly,in terms of the application of subjective elements of environmental pollution crime,before the amendment of criminal law has not revised the crime of major environmental pollution accident,because the law clearly shows that its content is the accident that needs to result in,so there is not much dispute on the subjective aspect that it belongs to negligent crime.However,in the process of judicial application,there is a contradiction between the theory of intention,the theory of fault and the theory of double fault.From the current judgment results,these three theories have been adopted by the judicial organs.However,the above claims not only have various theoretical flaws,but also are not conducive to the unified judgment of the judiciary,so the phenomenon of different judgments in the same case is more prominent and obvious.Therefore,instead of such endless disputes,it is better to find a new way in the adoption of the theory and adopt the "relative strict liability theory".In the judicial application,on the one hand,we should adhere to the rule of presumption in substance,on the other hand,we should adhere to the rule of counter evidence in procedure.Thirdly,in terms of the penalty of environmental pollution crime,there are serious deviations in the sentencing position of environmental pollution crime,which are mainly manifested in "low prosecution rate of units","high application rate of probation","weak judicial application of fine" and "different standards for employees to enter the crime".For the punishment of environmental pollution crime,we should first determine the correct position,not only need to take the principle of suiting crime and punishment as the important basis of punishment,but also take the criminal policy of combining punishment with leniency as the limit of punishment.In the specific construction,we need to further clarify the scope of "employees" through the objective imputation theory,and in the future,we need to establish a unified sentencing guidance to unify the current chaotic sentencing standards.