Research On Several Difficult Problems Of Environmental Pollution Crime

Before 1997,there was no special provision of environmental pollution crime in our country,and the Criminal Code of 1997 specifically established the crime of serious environmental pollution accident.In 2011,the Amendment to the Criminal Law(VIII)promulgated and implemented made a major amendment to the crime.The subjective and objective factors have been changed greatly,and the charges have also become the crime of polluting the environment.In order to better apply the norms of criminal law in practice,judicial organs issued or implemented relevant judicial interpretations in 2006,2013 and 2017.Criminal law and related judicial interpretation are very important to the determination of environmental pollution crime,but we should still see some problems existing in theory and practice.It has not been completely resolved.This article bases on the criminal law norm,through the reasonable explanation in order to clear up the theory and the practice existence real question,this paper mainly carries on the research to the five difficult questions.The first part is about the question of "state regulation" in the crime of pollution of the environment.As to the judgment of "state regulation",the existing research always tries to expand the scope of "state regulation" from the angle of normative name.This article is based on the meaning of regulation in article 96 of the criminal law.State regulations shall be limited to the legal norms formulated by the NPC,its standing Committee and the State Council.Local regulations,ministerial regulations,etc.,do not belong to the "State regulations." The existing research holds that this crime is a statutory crime,and "violating the national regulations" is a necessary requirement for criminalization.In this paper,the environmental pollution behavior is divided into human-type pollution behavior and ecological-type pollution behavior.For the former,the pollution behavior is divided into two types.Violation of state regulations is indicative;for the latter,violation of state regulations is an essential requirement.The second part is the cognizance of "disposal" in the crime of environmental pollution.The existing research ignores the difference of the regulation of "disposal" between criminal law and preposition law.Based on the difference of meaning between the two,this paper makes a broad understanding of the "disposal" stipulated in article 338 of the criminal law,which refers to "emission"."dumping" and equivalent to all other environmental pollution,in order to achieve the coordination between criminal law and pre-law.The third part is the application of "seriously polluted environment" in the crime of environmental pollution.Article 338 of the Criminal Law stipulates that "seriously polluting the environment" belongs to the threshold for the criminalization of the crime of polluting the environment.According to the provisions of the judicial interpretation on "seriously polluting the environment",the crime of pollution of the environment not only protects the rights and interests of persons and property,The ecological environment is also protected independently.The existing research includes not only the behavior state attribute but also the result state attribute,which is interpreted as the behavior crime or the result crime one-sidedly.According to the investigation of the relevant plot content,it is known that the crime is actually a "crime of affection".The fourth part,pollution environmental crime subjective crime problem.The existing studies ignore or one-sided understand the content of criminal law amendment and define it as negligent crime or intentional crime.This article is based on the criminal law norms and relevant judicial interpretation,the criminal law deletes the "accident",the crime of environmental pollution should include intentional form.However,the content of "serious environmental pollution accident" is basically absorbed by "seriously polluting the environment",so it is reasonable to define the crime of environmental pollution as a double crime because there are still negligence forms in the crime of environmental pollution.The fifth part is about the relationship between the crime of environmental pollution and the crime of dropping dangerous substances.Existing research only from the perspective of harm results to doubt that the typical case is the same crime,different punishment or serious crime light punishment.In this paper,the author thinks that we should judge from the different attributes of the two crimes themselves,the basic differences between the concurrence crime and the joint crime of law,the provisions of criminal law and related judicial interpretation,and the difference of the legal interests protected by the two crimes from the angle of view.Judging the typical cases issued by the Supreme Court on the basis of the relationship between the imagination and cooperation of the two crimes,we can see that there is not much problem in the outcome of the judgment.