On The Application Of Restraining Principle Of Criminal Law In Environmental Cases Of China

The issue on environmental cases has attracted more and more attention recently,therefore fighting against with the environmental crime by using criminal law is of great importance.As a fundamental principle and inherent attribute of criminal law,the restraining principle of criminal law should be followed and be treated as a guideline in the process of combating environmental crime.By doing that,we can improve the legislative process,the judicial process,and the law enforcement process which are being involved in environmental criminal cases for the time being.Surely,it can better adapt to our realistic situation of ecological environment in china.This thesis can be mainly divided into four parts.Chapter 1 is the basis analysis of the theory of criminal law modesty principle applied to the environmental cases.the restraining principle of criminal law is : if it is out of necessity,one's behavior cannot be punished by law and even one's illegal behavior cannot be sanctioned by criminal law.If it is not have to,one may not undertake any criminal liability and avoid the punishment devises and even the punishment is necessary,the authority is more tend to take easy penalty instead of severe penalty.Therefore,the specific connotation of the restraining principle of criminal law should include: on social controlling means,we should distinguish the differences of legal devices and ocial controlling means.In the choice of legal means,we may apply the criminal law properly to adjust the illegal behavior;If it is not have to,the authority should not punish the illegal behavior by using criminal devises and try to avoid the severe penalty as far as possible.To restrict the public power of the state and to protect the private rights of citizens.Chapter 2 is the basis analysis of the practice of criminal law modesty principle applied to the environmental cases.At present,the intensity of China's efforts to combat environmental crime has increased.As a whole,the law is developing towards the forward orientation of advance the intervention,strict the responsibility and the expansion of the criminal circle,but in the process of its development,we must adhere to the principle of modesty of criminal law,even in the process of establishing dangerous guards,introducing strict liability system and expanding the scope of criminal law adjustment,we can not break the "appropriate and necessary" principle and basis on the direction of "ruling by good law."Chapter 3 is the deficiency of restraining principle of criminal law in the process of combating environmental crime.Reviewing from the current legislation system and the judicial system in combating environmental crime of china,though our legislation system starts late,we have formed a series of law which is mainly dominated by criminal law and some specific regulations with complementary.Due to the update emerging method of environmental crime,the process of law enforcement is becoming more difficult.And on the whole,the appearance of environmental cases present in eastern part of china is far more than the western part.So,many local authorities have set up the court of environmental protection,but unexpected get into the "no case to deal with" dilemma.Seeing from the deficiency of the restraining principle of criminal law,our criminal law of environmental crime has many problems,such as:the incriminate obscurity,the nature of judicial interpretation is not clear,the construction of penalty is excessively relay on imprisonment punishment,all these problems are against the requirement of restraining principle of criminal law: "limit criminal circle properly" "restrict the power of criminal legislation " "use appropriate penalty".However,in the process of law enforcement in combating the environmental crime,if the court of environmental protection don't take the specific action,ignore some specific situations and treat the criminal cases as normal cases,just let the Public security organs exercise the indictment the case.This also against the requirement of restraining principle of criminal law: "To restrict the public power of the state and to protect the private rights of citizens".Chapter 4 is the author gives priority to the improvement of restraining principle of criminal law in dealing with real criminal cases,that is to improve the current criminal policy,the environmental criminal law and the environmental criminal judicial practice of our country under the guidance of the restraining principle of criminal law.On the formulation of environmental criminal policy,the author will elaborate how to perfect it from three aspects: the environmental criminal legislation policy,judicial policy,law enforcement policy.For the perfection of the environmental criminal policy,the author suggest that : "To perfect the application of our country's criminal legislation right","To explicit the stipulation of environmental crime in the law" and "To establish the appropriate environmental crime penalty system" as the requirement of restraining principle of criminal law.Limit the judicial interpretation of the law Strictly,strengthen the interpretation of environmental criminal legislation,enable the environmental criminal practice have laws to abide by,and the law is clear and easy to implement;On the establishment of the penalty system of environmental crime,the authority should change the mode of punishment,establish the penalty mode of "taking the property penalty and restorative punishment as the leading factor,supplemented by personal freedom penalty",vigorously promote the application of non-penalty punishment measures Principle,so that to implement the restraining principle of criminal law.On the practice of environmental criminal justice,the authority should also be in accordance with the requirements of the restraining principle of criminal law,and actively explore the new methods that environmental authorities can be involved in this new environmental justice system,be brave in exploring and innovating,and further accelerate the construction of environmental courts.By carrying out the "three-in-one" trial mode to make sure the environmental protection court can effectively play a role in improving environmental justice for the efficiency of the case.