Research On Judicial Application Of Crime Of Polluting The Environment On The Visual Threshold Of Environment Protection

Whether it is for the Crime of Major Environmental Pollution Accident or theCrime of Polluting the Environment, researcher is keen on criticizing the law.Theoretical research confined to the elements of the crime and perfection ofLegislation. Few scholars think systematically about applying the existing criminallaw theory to solve the problems occurring in judicial application of the crime ofpolluting the environment in the concept of environmental perspective. In this paper,the tone is based on the judicial practice. I intentionally avoid the evaluation of legalnorms, while trying to use basic theory to interpret the law, to apply the law.Specifically, this paper is related to two aspects of the Crime of conviction andsentence of the crime of polluting the environment, and divided into five chapters:The first chapter is the background and context of the text. The environment isthe key words of the text, and environmental issue is the entry point for the study ofthe article. Environment is an alien concept to law. I believe that "environmentconcept" in environmental crime includes the natural environment and man-madeenvironment. Characteristics of universality, economic by-products and conflictionof interest are important factors that being concerned in the judicial adjudgement ofthe crime of polluting the environment.The second chapter is the starting point for theoretical studies of the article. Itbegins with the necessity of the criminal regulation, commanding more discussion ofthe environmental concept. This chapter is the basis of discussion of the elements ofthe crime. Just under the guidance of the concept of the environment, we have theunderstanding of the significance of ecological independent legal interests, singleresults of the elements of the consequences of environmental pollution and the faultmentality to the consequences of environmental pollution.The third chapter is the core of the text. This chapter discussed the changes oflegislature and the judiciary from the Crime of Major Environmental Pollution Accident or the Crime of Polluting the Environment. The chapter is divided intothree sections. Section I is the current situation and the plight, which focuses on thejudicial and legislative issues of major environmental pollution accident crime.Section II is the change and innovation. This section identifies the modification ofthe object of the crime of polluting the environment. On the object of the crime, thecrime of polluting the environment recognizes the independent value of theenvironmental legal interests. On the object aspects of the crime, the crime ofpolluting the environment is still the result guilty. The consequences ofenvironmental pollution should be calculated from the loss of the environment itself,and not be calculated from the damage of the human individual interests and socialinterests. Section III is arguments and explorations, which is mainly aboutcontroversial issues of the crime of polluting the environment. The first one issubjective guilt form issue. I first disprove the correctness of the theory of HybridTheory, and then I prove negligence theory reasonable. The second one is strictliability issues of the judicial application of the crime of polluting the environment.This paper argues that strict liability should not be applied in the judicial applicationof the crime of polluting the environment. The reasons are these: strict liabilitytheory itself has irreparable defects; the theory of strict liability may have an adverseimpact on economic development.The fourth chapter is the expanding research of the judicial application of thecrime of polluting the environment. The article mainly related to the unit pollutionproblem of environmental crime and the determination of causation. The authorbelieves that, due to the subjective different, should be dealt with the directlyresponsible person in charge and other directly responsible persons in intentionalcrime unit should be convicted and punished to the placing of dangerous material. Inthe case of negligence, the theory of negligent supervision should be introduced todetermine the content of the duty and the basis of the establishment of liability fornegligence. Identification of the causal relationship should introduce epidemiologicaltheory of causality, to lower standard of proof.The fifth chapter is mainly about penalty issues of the crime of polluting theenvironment. Firstly this chapter starts from the transformation of the concept of thepurpose of punishment, through denying the traditional conception of criminal lawpurposes, to establish environmental crime of retribution and general preventiveunity concept of the purpose of punishment. On this basis, we introduce the socialdefense theory to guide the penalty discretionary. In the penalty discretionary of thecrime of polluting the environment, I believe that the emphasis should be on thefollowing three points: first, Emphasis on criminal fine applicable. Second, payattention the convergence and transformation with other charges. Third, try to applynon-penal measures.