Research On The Crime For Dereliction Of Duty In Nvironment Supervision And Management

The crime for dereliction of duty in environment supervision and management is a new charge incorporated into the criminal law in 1997,with the dual property of environment crime and misconduct.This thesis follows the crime for dereliction of duty in environment supervision and management committed by a Li and a Chen as the main line,the controversies of which include,one is whether the offence form by the Li and the Chen belongs to intention or negligence and the other is whether is a causation between the issuance of sewage discharge permit by the Li's taking advantage of his office and the pollution in the Mingjiang headwaters.This thesis intends to probe into the subjective offense issue in the crime for dereliction of duty in environment supervision and management,the causation therein and its relationship with the related criminal policies.This thesis is composed of four parts.Part One introduces the fact of the crime for dereliction of duty in environment supervision and management committed by the Li and the Chen mainly from the facts,controversial opinions and the dispute focuses with the purpose to induce the legal research on the constituent of the crime for dereliction of duty in environment supervision and management.Part Two briefly elaborates the domestic legislation background of this crime,making background bedding for the elaboration in Parts Three and Four.Part Three deeply probes into the offence,supervision negligence theory,casual relationship(theory of epidemic causation)as well as the related legal principle in the criminal policies on the basis of controversial focuses.The author holds that the principle of “no offence no negligence” shall be adhered to in the crime for dereliction of duty in environment supervision and management and its subjective offense should be composite;the supervision negligence theory should only be applied to the situation in which the doer has negligence in subject,not to the intention;the various theories in the causation can be utilized only they can serve the practice,in which the theory of epidemic causation should be regarded as the supplement of the traditional causation theories;and finally the crime should be severely punished from the perspective of the current criminal policies.Part Four proposes the opinions of the author on the case and the conceptions on the improvement of the legislation on this crime,which constitutes the basic conclusion of this thesis.As for the case,the author holds that the two persons are in indirect intention in subject;there is causation between the Li's action and the dangerous result and the crime should be severely punished.As for the conception on the improvement of the legislation on this crime,the author holds that the offense form of this crime should include the indirect intention and negligence and the defendant can be identified as negligence in subject according to “the principle of being conducive to the defendant” if there is a failure to distinguish indirect intention and negligence;the legislation on this crime should embody the prevention function of the criminal law,the tentacle of the crime for environment supervising and managing dereliction of duty should be raised from “consequential offense” to “potential damage offense”,making it compatible with the criminal theories and the actual development trend,the prerequisite of which must be based on the fact that the subjective offense of this case is indirect intention;the legal penalty of this crime shall conform to the strict policy of the criminal policies,divide the range of sentence,add the fine punishment and in the meanwhile strictly apply the probation system.