Research On Air Pollution Control Mechanisms Of Criminal Law

Criminal law of our country does not establish an independent count of criminal acts against air pollution. It is a form of air pollution offenses belonging to the provisions of environmental pollution of “Criminal Law” Section 338, belonging to a specific crime of Chapter VI “crimes against social order” in Criminal Law. Such legislation not only ignores the differences between the form of air pollution, water pollution and soil pollution crime, but also limiting the type of crime against the legal interests to the national environmental management order. Therefore, the protection of the criminal law is difficult to realize the benefits of environmental law. From the provisions of Article 338 of the “Criminal Law”, the atmospheric pollution offenses were committed violations, including violations committed against human and environment. The law does not clearly define the dangerous situation to environment and people, which is not conducive to the effective protection of atmospheric environment. Form of sin is not clear, is not conducive to the proper identification of the crime. Traditional rules of causation judge which faces many difficulties is the current common practice. On setting the penalty, it is limited to criminal fines and penalty free, and freedom punishment is too wide and gentle. Fine penalty is not conducive to make the penalty adaptive to the crime and it is also not conductive to crime prevention.There are many large differences in penal governance mechanisms between our country and abroad. Firstly, they not only have a separate crime of polluting the atmosphere but also a crime the offense belongs to a separate type of crime in criminal law system. On the legislative model, some countries have taken the Criminal Code mode, some have taken single criminal patterns, as well as taking accessory criminal law mode, and even some countries adopt a mixed-mode. The basic form of atmospheric pollution crimes committed includes real harm and dangerous crime. The sin forms are on purpose and negligent, and even some countries have taken strict liability. On setting the penalty, in addition to freedom of punishment, main penalty is fine penalty(mainly taken the day the amount of criminal fines). At the same time they set the qualifications and conduct penalty. Foreign air pollution crime in penal governance mechanisms is the experience over the years to control air pollution crime, and there is a lot we can learn from.Facing the the increasing crime of air pollution in our country, not only should the “crime of destroying the environment protection of resources” of “Criminal Law” sub-chapter VI be replaced with “crimes against the environment,” and promoted to Chapter charges, but also establish the crime of atmospheric pollution, water pollution crime, the crime of soil contamination and other specific crimes in this chapter. On the basis of atmospheric pollution crime deliberately, default should be clearly defined delinquent which deserves penalties. Perilous should be set on the basic of real damage offense. On atmospheric pollution crime penalties, in addition to the free punishment which is set according to the results of hazard and increasing the free criminal sentence, criminal fines should be set up, and adopting the amount of daily fine system. At the same time, qualification penalty and criminal behavior penalty should be increased. On atmospheric pollution crime causation, we should learn from Japan, Germany and other criminal law and criminal law theory, and establish causation presumption in Chinese criminal law theory.