The Analysis On Problems Of Environmental Supervision Offense Of Misconduct In Office

Environmental supervision offense of misconduct in office is a new additional charge in an indictment to our existing criminal law. The meanings of the crime is: Any functionary of a state organ who is responsible for environmental protection, supervision and control, through his gross neglect of duty, causes a serious environmental pollution accident, which results in heavy losses of public or private property or the grave consequences of injuries or deaths of persons, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. This crime was established in 1997 in the new Penal Code, absorb and amend from item 48 of entironmental protection law of the People's Republic of China, which passed in the eleventh meeting of Standing Committee of Seventh National People's Congress on February 6,1989, prescribe that any functionary of a state organ who is responsible for environmental protection, supervision and control should be given administrative punishments or criminal penalty if he or she abuse his or her power or neglects his or her duty. At the present time, there are few theoretical study about this crime in the domestic criminal academic circle. In the course of exploring of this crime, I find some existent questions of the crime. So, this paper start its discussions with angles of characteristics and judgment of the causality, the identify of the scope of the subject of crime, the subjective aspects and allocation of the legal penalty. And try to perfect them in the legislative level. Next, discuss causality from the theory of causality respectively belong to Continental Law Legal System, Anglo–American Legal System , domestic law and nonfeasance'causality; discuss the scope of the subject of crime from angles of unification between legal provision and the duty of supervision and supervising and managing ability. Furthermore, discussion the scope of the subject of crime from angles of substance of supervision and management. Boldly introduce punishment system of corporate crime, to seek balance between width and narrow at the identification of the scope of the subject of crime; explored the subjective characters of environmental supervision offense of misconduct in office from angles of indirect intent and over confident negligence, indulgence of indirect intent, seriously irresponsible and legislative history. Conclude that it is entirely possible that subjective aspect of the crime can be indirect intent, not just negligence.Proof and perfect the allocation of the legal penalty of the crime from angles of operational error, the principle of suiting punishment to crime and criminal responsibility, legal penalty of same kind of crimes, legal penalty of same kind of crimes, practice and criminal policy. Finally, in brief summary, the author gives practical and feasible legislative advices against overall conviction and sentencing of environmental supervision offense of misconduct in office, and try hard to explain some doubts regarding the crime which exist in some scholars, to make this crime to be more perfect in the legislation.