The Dilemma Of The Crime Of Polluting The Environment In Judicial Application And Its Countermeasures

"Lucid waters and lush mountains are invaluable assets".This is the scientific thesis put forward by General Secretary Xi Jinping when he was the secretary of the Zhejiang Provincial Party Committee in Yu Village,Anji,Zhejiang.The construction of ecological civilization is the necessary prerequisite for the Chinese nation to take the road of sustainable development.The construction of ecological civilization requires us to reduce pollution to the environment.At present,water and air pollution are serious,and it has become a roadblock in building a well-off society in an all-round way.In order to strengthen the crackdown on environmental pollution,the crime of polluting environment was established.As an alternative to the crime of great environmental pollution accidents,the crime of polluting environment is stipulated in the Criminal Law Amendment(VIII).The emergence of this new crime has attracted the attention of academic circles and the judicial practice community.At the same time,it also provides the criminal law basis for combating environmental crimes and demonstrates the determination to combat environmental crimes.Compared with the crime of great environmental pollution accident before the amendment,the amended crime of environmental pollution is more in line with the current needs of ecological civilization construction in China.First of all,the result of the hazard is revised to "causing serious environmental pollution" by "causing major environment pollution accidents,heavy losses to public and private property,or grave consequences of personal deaths and injuries".Second,the criminal object was modified from "dangerous wastes" to "hazardous wastes".The effective opening of the scope of conviction is conducive to reducing the threshold for crimes of environmental pollution.Finally,the provisions on "releases,dumps,or disposes of something into land,water,and the atmosphere" were deleted,which makes the scope of application of Article 338 broadened.However,at present,there is no unifiedstandard for the constitutive elements of the crime of polluting the environment,and there are different opinions in the theoretical and judicial circles.In judicial practice,different understanding of the constitutive elements of this crime will lead to different trial results.It can be seen that the inconsistency in the understanding of the elementsof the crime of polluting the environment will lead to a series of problems in the judicial application of this crime.This article mainly elaborates the following problems in the judicial application of the crime of polluting the environment: First of all,before the Criminal Law Amendment,this crime is a typical negligent crime.After the Criminal Law Amendment,there is an accomplice in this crime.Therefore,the guilty form of this crime after the amendment is controversial.Secondly,because of the difference in understanding of the constitutive elements,which are seriously polluting the environment,of this crime after the amendment,there are disputes about the accomplished form of this crime,so there are differences in the trial results of similar cases in the judicial trial.And then,it takes quite a long time for the harmful results to appear after the acts of polluting the environment in the crime of polluting the environment occur,and not all acts in the crime of polluting the environment correspond to one consequence.The phenomenon of multiple causes and one fruit is a common phenomenon in the cases of the crime of polluting the environment,and there are some intervening factors in the middle,which makes the causal relationship between the behavior of polluting the environment and the result of the damage particularly complicated.The precondition for the application of the traditional causal relationship presumption theory in judicial practice is that we must know beforehand that an act will cause a certain result.However,when the result of the crime of polluting the environment is difficult to determine which behavior was caused by the previous behavior,the traditional causal relationship presumption theory is flawed in presuming the causal relationship of this crime,and cannot apply to all cases of environmental pollution crimes.Finally,the application of the crime of polluting the environment and the crime of putting dangerous substances is confused in judicial practice.The author cuts in from the criminal constitution of this crime,combines the latest judicial interpretation of this crime in our country,analyzes these issues,and finally proposes that the subjective aspect of this crime should be considered asintentional.The accomplished form of this crime is consequential crime,and the causal relationship presumption theory is more suitable for presuming the complex causation in this crime.As for the confusion of the application of this crime and the crime of putting dangerous substances in judicial practice,the author believes that a case library of environmental crimes can be established,which will play a guiding role in the future similar cases of environmental pollution crime.