Research On The Legislation Improvement Of The Crime Of Polluting The Environment

The legislative evolution of the crime of environmental pollution in China has gone through the three independent development stages: the decentralized provisions of the 1979 Criminal Law,the addition of the " Crime on major environmental pollution accident" in the 1997 Criminal law,and "Crime of polluting environment" in the Criminal law amendment(eight)in 2011.In these three stages,crime of polluting environment has gone through the process of transformation,which starting from scratch,from coarse to fine,from decentralization to concentration,from regulatory lag to regulatory preposition.In the first stage,provisions on environmental pollution crime scatter among the other chapters and the separate criminal law and accessory criminal law,which have the enlightenment for cracking down on offense of environmental pollution,but the purpose of legislation is not based on the perspective of environmental protection,environmental protection and sanctions are obviously deficient.In the second stage,the criminal code integrated scattered offense of environmental pollution as " the crime on major environmental pollution accident ",which improves the environmental pollution crime legal rank,however,which provides restrictive regulations for suitable object and harm result,so the environmental protection still need to improve.In the third stage,set an individual crime of the behavior of environmental pollution,and abolish the "property and personal" restrictions,this subversion modification make criminal law pay more attention to protect the environment itself,additionally,putting forward the conception of “Environmental legal benefits”,which makes the criminal legislative idea of environmental pollution crime has undergone significant transformation,but there are many defects in crime settings.The dispute is relatively great in practice.At present,our country’s criminal law on the crime of environmental pollution is not perfect.The accusation of the crime of polluting the environment is obviously lack of pertinence,which not only in the mixture of responsibility forms,but also in the uncertainty of the pollution area.There is a contradiction between logical reasoning and fact finding in this criminal expression.The pollution of the environment crime threshold is set too high,and only provide the three kinds of behavior: "discharge" and "dumping" and "disposal",and there is need to have plot conditions of the serious environmental pollution,more then,it must also meet the elements of administrative illegality from qualitative analysis angle.In addition,the crime of polluting the environment is a consequential offense,and the situation stipulated by the judicial interpretation includes both behavioral and consequential offenders.The judicial interpretation and The Criminal code provisions conflict with each other,causing huge positioning disputes for the crime types of the polluted environment.The way of sanctioning offense of environmental pollution is not scientific.Among them,the setting of penalty is too low,the statutory penalty is difficult to upgrade,and there is no corresponding recovery sanction measures,and environmental remediation is not guaranteed.The structure of penalty allocation,the meaning of punishment and the significance of prevention are insufficient,and it is difficult to implement the principle of adaptation to crime and punishment.In view of the legislative defects of offense of environmental pollution,it should be further perfected in the setting of crime,the conditions of incrimination and the way of sanction.In order to solve the ambiguity of liability form,we should clearly define the offense of environmental pollution as two categories: crime of intentional offense and negligent crime,and at the same time,set up a crime for different pollution objects,so as to realize the concretion of accusation.In the field of pollution and environmental crime,we should appropriately reduce the threshold of crime.By adding dangerous offenses,we will move forward the criminal defense line and block the evolution process of polluting environmental behaviors.In view of the evil nature of the polluted environment and the profitability of the means of not folding,it is necessary to improve the legal supreme punishment of the crime of polluting the environment and complete the application of the penalty.It is necessary to add relevant qualification penalty to the crime of environmental pollution,so the measures of security punishment should also be taken into consideration.Besides,we should also stipulate the restorative sanction measures for pollution environment crime,and match the penalty means flexibly,which is not only to realize the individualization of environmental crime punishment,but also to recover the damaged environment as soon as possible.