Significant Environmental Pollution Accident Crime Certain Questions

Significant Environmental Pollution Accident Crime is the new addictive accusation in the revision of the Criminal Law of 1997.Such a crime has triggered great argument since its setting up. Under such historical background, the thesis interprets and analyzes this crime in terms of its four aspects, and they are"what kind of benefit should the Significant Environmental Pollution Accident Crime protect","the subjective state of the crime","Objective important document prepared standard"and"the tentative analysis on adopting the theory of ?fault dangerous offence? by this crime".Chapter one deplores the basic elements of the protection to the law benefit by the Significant Environmental Pollution Accident Crime. It is evident that the law benefit in the Criminal Law is the soul of criminal regularities, and any kind of crime can all be demonstrated with"encroaching law benefit". From the perspective of comparative study, the thesis gives the general introduction about the several primary viewpoints in terms of law benefit protected by the very crime in domestic theoretical field, as well as the general conditions of the law benefit protected by the environmental crime in Japan and Germany. In China, there are diverse speaks about the law benefit protected by the Significant Environmental Pollution Accident Crime, such as the speaking on environmental protection system, the speaking on right to environment, the common safety doctrine, and the life and ownership of property speaks as well as the comprehensive doctrine. Comparatively, in Germany, with its continent law system, the"law benefit in environment"has been stipulated into the protective aim by the crime directly, which is distinct from other countries and has certain advancement. However, the environmental crime law in Japan mainly considers for the protection to the law benefit on health and life as well as the management and distribution order of administrative organization, rather than the environmental elements. Consequently, there is no independent protection to the law benefit in environment. Obviously, the success of the two countries in protecting the law benefit through the environmental crime is worthy of our learning. First of all, we should study the advanced thinking and legislation pattern in Germany, particularly their considerations to the environmental problems from the angle of"ecological environment"and their attitude of high stressing the environmental problems. Secondly, in view of the"direct punishment"in Japan, a model has relieved the contradiction between the economical development and environmental protection, China should base on the basic national conditions, draw a lesson from its pattern, and consummate the administrative criminal law matching to the significant environmental pollution accidents, so as to harmonize the relationship between the environmental protection and the economic development. Finally, the legislation criterion of the significant environmental pollution accidents in China should be enhanced, and the protection range of this crime should also be enlarged through judicatory interpretation. On the basis of the above analysis, the writer proposes the basic viewpoints and reasons of the thesis, that is, the law benefit of significant environmental pollution accidents crime should be"right to environment". The identification of the contents of law benefit within this crime should be based on the regulations in the item 338 in the criminal code, having an overall manipulation through the criminal system and structure. And by the comprehensive consideration to the characteristics of the crime and the purpose of setting up such a crime, identify its status in the category of law benefit in"Protection to the Management Regulations of Environmental Resources"which the crime is substituted to. Therefore, the thesis demonstrates its viewpoint in the perspective of criminal code system, the features of the crime, the content stipulated in the item 338 and the aim set by the crime. Chapter Two analyzes the subjective elements of the significant environmental pollution accidents crime. Concerning this questions, there are primary four different viewpoints in theoretical field: (i) the theory of negligence: the crime can only consist of negligence; (ii) the crime can be both involuntary and intentional, but mainly the indirect intention. (iii) the crime can only consist of intentions, and negligence cannot become crime; (iv) the crime should adopt Mistake legal responsibility principle, including intentional offense and involuntary offense, and the strict responsibility should be adopted as special case. Based on such a theoretical background, the writer carries out the empirical analysis of subjective elements in the significant environmental pollution accidents crime. Firstly, the writer demonstrates the rationality of taking the subjective state as negligence. And secondly points out that the subjective state of the crime should include indirect intentions. Then, the writer shows that the subjective state is the same behavior with the direct intentions, and its nature cannot be mentioned at the same time with the significant environmental pollution accidents crime, but should be set as the common safety crime according to the item 114 and 115 in the criminal law. Still, the reason why it?s inadvisable to adopt the strict responsibility is also discussed, and finally, concludes that the subjective state of the significant environmental pollution accidents crime should be negligence or indirect intentions.Chapter Three discusses the question of the significant environmental pollution accidents crime?s establishment not to demand the solid evil result. Started with the existing law of Chinese legislations, and based on the criminal form theory together with the analysis about the contents in the item of 338 in the criminal law, the writer points out that it is only the question of being recognized or not to the so called significant environmental pollution accidents crime. However, whether it can be recognized or not depends on"the extent of damage that public and private property have suffered or the severity of person casualties consequence", which means that the recognition of such a crime demands the actual damage consequence, therefore, this very crime should be confirmed as actual damage offence. In the following sections, the writer explores the related regulations in foreign legislations. The countries within continent legal system represented by Germany and Japan incline to take the crime in terms of environment as dangerous offense, and regard the actual damage offense which has caused actual damage force as the result- aggravation offence, and they have regulated more severe punishments; in the countries within English and American legal system, such as American and Singapore, take the crime of polluting the environment as behavior offense. That is to say, as long as the criminal behavior on violating the environmental law is performed, the client can be confirmed as environmental criminal behavior, no matter whether the actual damage is caused to happen. However, through the following comparative study about the dangerous offense, result offense, actual damage offense and behavior offense, the writer puts forward that the significant environmental pollution accidents crime should belong to the dangerous offense. Firstly, it expounds the deficiency by the criterion of result offense. (i) the characteristics of the crime itself has determined the severe harm of relieving after the event ; (ii) according to the analysis of cost and profit, rational brokers have the behavior of hastening the advantage and avoiding the damage; (iii) the present legislation has lagged behind the economic development, and can not display its function of attack and precaution. What?s more, it?s inadvisable to apply the regulations of behavior offense, because it will enlarge the attack range and will probably affect the normal economic development. At present, it is much earlier to adopt the behavior offense. Finally, the writer proposes the necessity and reasons for which the crime should be regarded as dangerous offense. (i) the demand of the trend of international legislation;(ii) the transference of the law benefit of the crime protection, dangerous offense will be more effective in the protection of environmental right; (iii) the comparison of analyzing"cost and profit". The thesis holds that it is reasonable as long as the pollution behavior regulated in the significant environmental pollution accidents crime is within the range of the acceptance in the human surviving environment. It is evident that human beings cannot avoid the pollution and development to the environment; therefore, it will be no good to the protection of environment with the too strict or loose legislations.Chapter Four makes the tentative analysis about whether the significant environmental pollution accidents crime can be set as involuntary dangerous offence. First of all, the writer expounds the feasibility and necessity of setting up involuntary offence: (i) the demand of filling the legal blank; (ii) the present legislation regulations about involuntary offence provide possibility for the adoption of this theory for the crime; (iii) the characteristics of the crime are accordance with the theory of involuntary offence; (iv) the foreign legislations incline to set the environmental crime as"involuntary dangerous offence", the theory and practice of which develops more mature, having provided the consultation for the adoption of such a theory. Secondly, the writer points out that the adoption of involuntary dangerous offence should pay attention to the coordination with the present legislations in China: for one thing, the penalty of the crime should be regulated again, and increases the fine punishment; for another, the dangerous offence theory should be adopted.