Several Issues On Crime Of Great Environmental Pollution Accidents

Environment crime is a new type of crime concerning criminal theory, criminal legislation and judicial sphere; it has a short history comparative to traditional type of crime. But environment problem is severe, environment pollution damages the global human lives, health and property more and more in present society. Criminal protection on environmental source gets the great attentions from the theoretical circle and practical circle.It is significant to protect nature resource and biological balance and prevent environment pollution and resource damage. In 1997 the fifth session of the Eighth National People's Congress reversed Criminal Law of the People's Republic of China. There is the sixth section, crimes of impairing the protection of environment and resources in the sixth chapter, crimes of obstructing the administration of public order in the reversed criminal law. Article 338 shows:"Whoever, in violation of the regulations of the State, discharges, dumps or treats radioactive waste, waste containing pathogen of infectious disease, toxic substances or other hazardous waste on the land or in the water bodies or the atmosphere, the causing a major environmental pollution accident which leads to the serious consequences of heavy losses of public or private property or human casualties, shall be sentenced to fix-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; if the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined."It is the first time to set crimes of impairing the protection of environment and resources in criminal law. It is a new multiple crime composing the characters of several environment pollution crimes. It replaces water body pollution crime, atmosphere pollution crime and crime in violation of regulations of assembling, reserving and disposing hazardous waste.After enforcement of the criminal law, there are many discusses about crimes of impairing the protection of environment and resources in the theoretical and practical circle. The author starts a research on the crime in four parts to clarify the nature and character of the crime, analyzing the crime with constitutive elements.In the first part, the author points the subject of the crime includes nations. The general subject of the crime includes nature person and corporate body. It is stipulated that the subject of unit crime is company, corporation, institution, government unit and group. Some scholars think government unit can not be the subject of the crime. It is uncontroversial in the legal theory that nation can not be the subject of crime commonly in domestic law. In present period, nation can be the subject of the national crime in specific conditions in according with the development of international law theory and the increase of international crime. The subject of international environment crime could include the sovereign state. The state should take the obligation of intentional (commonly indirect intentional) obligation for damaging international environment. The state has the duty to supervise and manage the productive behavior in administrative area. When the state knows the actors pollute and destroy environment illegally but not stops or permits silently, the state should take the obligation. To punish a state, we can apply the"dual punishment"theory to fine the state and punish the related persons directly. In the second part, the author researches the object of the crime of impairing of the protection of environment and resources. The object of the crime has the unique specialization and complexity. The general theory thinks the crime offences the national management to the environment and resources or the protection of the land, water body and atmosphere. In the current legislation of the environment crime, we still adopt the interest of"core interest of human being doctrine". The author thinks we should adopt the new concept of"environment right"and"core interest of ecology interest doctrine". We should clarify the object of the crime: the crime offences the national management of the environment and resources firstly, also offences the environmental interest of state, person and unit and related right of life, health and property. The object has obvious characters in ranks. The crime offences the environmental interest by polluting the environment.In the third part, the author discusses the culpability of the crime. The general theory thinks the subjective aspect of the crime is negligence but not intention. However we realize the culpability form is not simple in the theory and practice. It is no doubt that the culpability form of the crime includes negligence. The form could include indirect intention, if the actor realizes the possibility of the great damage to the environment and resources but dose not interfere the bad result; the objective form of the actor is not negligence. The form can not include direct intention, if the actor offences the crime in direct intention; we should commit him in the crime of endangering public security. The author advises the article 338 of criminal law should be revised to distinguish negligence and indirect intention in sentencing by conferencing the regulations of Germany criminal model. The revisal will fit the principle of suiting of punishment to crime and practical needs better.In the forth part, the author discusses the principle of liability fixation in the crime of impairing the protection of the environment and resources. The concept of"strict liability'is adopted in Anglo-American criminal law, growing with the Industrial Revolution and development of the heavily dangerous industry. There are two opposite views about introducing the concept of"strict liability'in our theoretical circle; one is approvable and the other is deniable. The author finds that the scholars understand"strict liability'differently. The traditional"strict liability"is absolute liability and violates the principle of identity of subjection and objection; the traditional"strict liability"also has strong color of objective liability. We should deny it. The present"strict liability"accepts the principle of presumptive wrongs and is more reasonable. We should adopt it. It is hard to judge the subjective form in the crime. We can not strictly observe the traditional of"no fault and no obligation". We should adopt"strict obligation"in the crime of impairing the protection of the environment and resources to fit jurisdiction, prevent crime and protect environment.Above all, criminal legislation and judicial practice face the challenge of environment crime in twenty-first century. The author hopes the theoretical research on the crime to conclude and summarize the legislation of the crime of impairing the protection of the environment and resources, conference and adopt the other nations'advancing experiences, protect the environment with the criminal law activity, perfect the legislation and legal practice and improve environment crime revolution.