The Judgment Of Illegulity Of Environmental Pollution

With the criminal illegality or not is the basic premise of judging whether it can constitute a crime and be punished by the discipline.As for the illegality,it is an important part of the three-class of crime in the civil law system,and it plays a unique role in judging whether there is legal interest infringement in essence,while the criminal law of our country is to discuss the criminal illegality in the characteristics of the crime rather than regarding it as a part of the constituent elements of crime.Though there are so many differences in the civil system and our country,in recent years,the theory of criminal law in our country is so deeply influenced by Greman and Japanese criminal law thatthe research on illegality is also carried out gradually.On the understanding of the essence of illegality,there are two kinds of arguments about the essence of illegality,result non-value theory and behavior non-value theory,or we also call them as formal illegality and substantive illegality.The final choice of its essential position will affect whether the act can make the negative value evaluation in criminal law.In the real life,the environmental infringement is accompanied by the value of the pluralism,although most of them are the illegal discharge,dumping,etc.of the behavior subject,However,there are also some actors who fully comply with the code of conduct stipulated by the state--that is,environmental damage is caused by their lawful and reasonable economic behaviors.For example,China implements the the permit system of pollutant discharged,but the subject of the action causes pollution damage or danger within the scope of permission,at this situation,how should the illegality be defined?Should we follow the result worthless theory,judging its illegality because of the serious damage and dangerous result caused by the pollution discharge;or followthe theory of the worthlessness of the action,not considering the act as a crime because the pollution discharge is carried out entirely within the scope permitted by the state?On the basic research of illegality theory,the author firstly summarizes the debate on the nature of illegality and carries on thorough thinking of the criminalization and decriminalization of the three-stratum crime constitution system.After that,strictly distinguishing the special concepts of "criminal illegality" and "illegality" in China's criminal law,and explaining that the research in this paper is mainly about the illegality of criminal law rather than the discussion of criminal illegality.The second part,mainly on the discussion of the environmental pollution behavior,This paper defines the behavior of environmental pollution,and combs the common behavior forms of each classification according to the general classification of environmental pollution.The third part,explores the illegality of the environmental pollution behavior.This paper summarizes the characteristics of the illegality of the environmental pollution crime on the basic of combing the current situation of domestic and foreign research on the illegality of environmental pollution crime,and then mainly analyses their difference comes from the result non-value theory and behavior non-value theory on how to judge the illegality of an environment pollution action.We can make a conclusion that neither the theory of anti-value acts nor the theory of anti-value results can solve all kinds of problems arising from the environmental pollution behavior perfectly.Therefore,it is considered that the criterion for judging the illegality of the environmental pollution behavior should be the unification of the result valuelessness and the behavioral valuelessness.The two should be juxtaposed,either of them can not only determine the illegality of an act alone,but also work together to determine the illegality.The current research in this area is also less,so the author just made a preliminary attempt and this article only played a role to throw out a minnow to catch a whale.It is expected to attrct more scholars to note this issue.