A Study On The "Disposal" In The Crime Of Environmental

Article 338 of the criminal law of the People's Republic of China on the crime of pollution of the environment is a severe punishment for the acts of pollution of the environment in the criminal law with a modest nature.The method of "disposal" is not clear in the provisions of the criminal law and the relevant judicial interpretation.In addition,there are many ways to deal with harmful substances in judicial practice,which results in the judicial practice because of the diversity of disposal methods,the diversity of disposal materials and the unclear disposal results There is no consensus on the meaning,nature of "disposal" and the status quo of the conviction of disposal type of environmental pollution crime.The research object of "disposal" in the crime of environmental pollution in this paper is Article 338 of the criminal law and 14 provisions on "disposal" in the 2016 judicial interpretation.According to the different meanings of application scenarios and norms,disposal can be divided into ordinary disposal,legal disposal,illegal disposal and criminal disposal.The "disposal" of environmental pollution crime is illegal disposal or criminal disposal.From the perspective of interpretation methods,literal interpretation provides the basic meaning of "disposal",system interpretation provides a personalized interpretation paradigm for different provisions of "disposal" in the framework of the criminal law,and gives the meaning of illegal "disposal" in the crime of environmental pollution in the definition of legal "disposal" in the law on prevention and control of solid waste pollution and the law on management of hazardous waste business license The basic framework of "disposition" is limited to the scope of protection of legal interest created by the provisions of the crime.In terms of the interpretation approach,the interpretation of "disposition" should be based on the nature of administrative offence,under the iron law of legality,with the semantic range as the interpretation radius,pay attention to the protection of legal interests created by the crime,and conform to the national prediction possibility."Disposal" can be defined as the environmental pollution behavior that causes environmental pollution consequences by using illegal behavior methods such as burning to change the physical,chemical and biological characteristics of harmful substances.The prerequisite for the determination of "disposal" is "illegality",which does not include the methods of source behavior before collection,acquisition and purchase.Generally,the difference between harmful substances and pollutants is that they are substances with different time dimensions in the same substance's environmental behavior,so it is reasonable to understand pollutants as primary pollutants.The behavior that can be evaluated as "disposal" in the crime of polluting the environment should be the practice behavior of the perpetrator of polluting the environment.The logical relationship between "disposal" and "discharge and dumping" in the crime of environmental pollution should be regarded as inclusive relationship,and its nature should be the behavior method of covering the bottom."Disposal" should follow the "only containing the same kind of rules" and regard the exemplified criminal constitution and the criminal constitution of fallback provisions as the same item.It is required that the application of fallback provisions should refer to the characteristics of criminal constitution listed in the exemplification law and follow the standards of equivalence and equivalence.The applicable rules are as follows: firstly,it constitutes illegal disposal;secondly,it is necessary to discharge pollutants in the external ecological environment;Third,it must cause the consequences of serious environmental pollution or cause the consequences of serious environmental pollution with high probability.The crux of determining the illegal disposal behavior constructed by "disposal" in the crime of environmental pollution mainly lies in the interaction between the harmful behavior which constitutes the objective illegal elements of the crime and the elements of harmful results.The first,second,third,fourth,fifth and sixth items in Article 1 of 2016 judicial interpretation concerning the basic crime of disposal type of environmental pollution are the threshold of the crime.The same is interpreted as "serious pollution of the environment".Items 1,5 and 6 are specific payments.When the environment or the behavior itself is specific,the behavior method of discharge and dumping corresponds to the level of "pollution result";items 2,3 and 4 refer to the amount of crime required payment.When the disposal meets the amount or concentration of crime,the behavior method corresponds to the amount of crime“ Pollution results are serious.For hazardous results,for single disposal behavior,similar emission behavior involving process behavior may not cause environmental pollution or may cause relatively light pollution.In terms of the composite disposal behavior,it can be concluded from the change of the state of the disposal that the disposal behavior does not necessarily occur with the result of the substantial pollution;in terms of the change of the pollution of the disposal,even if the result of the substantial pollution occurs,there is a situation that the pollution of the pollution discharge is less than that of the pollution source,and the disposal operation and response required by most disposal behaviors must be specific within the enterprise And the process behavior has the possibility of infringement of legal interest(risk of infringement of legal interest)which is equivalent to the behavior mentioned in the reply-the pollution is small or does not occur.Therefore,the illegal disposal may not reach the level of "pollution result" even if it complies with the criminal constitution and specific provisions of items 1,5 and 6 of Article 1 of the basic criminal provisions of the 2016 judicial interpretation;even if it meets the requirements of items 2,3 and 4 on the amount or concentration of its emissions,it may not reach the level of "pollution result",even if it occurs,it may also occur If the result of pollution is not worthy of punishment,it may not reach the level of "serious pollution result".In this way,the conviction of the crime of disposal of environmental pollution may not reach the degree of serious infringement of legal interests required by Article 338 of the criminal law,which violates the iron law of punishment,the principle of legality of criminal law,the basic principle of interpretation of "disposal",and the standards of equivalence and equivalence are inconsistent with Article 338 of the criminal law The behavior structure of the consequential crime of environmental pollution is beyond the criminal policy boundary set by the provisions of the criminal law,which improperly brings the cases beyond the requirements of the amount of crime into the scope of punishment.The basic crime of disposal type pollution of the environment has arbitrarily increased the scope of criminal attack of illegal disposal of harmful substances as stipulated in Article 338 of the criminal law in the identification guidance of 2016 judicial interpretation.Under the framework of judicial interpretation,there are three kinds of harmful results caused by illegal disposal: non-polluting environment,slight polluting environment and serious polluting environment.It is necessary to exclude the two situations that should be imposed administrative punishment or not to be punished,namely,non-specific slight polluting environment and non-polluting environment,from the scope of criminal attack.Article 1,items 1,2,3,4,5 and 6 of the basic violation provisions of 2016 judicial interpretation cover the non-polluted environment and slight pollution that should have been excluded in the scope of punishment of the crime,which is an implied loophole,so it is necessary to limit it purposefully.Environmental quality standards are the first for environmental pollution assessment,but due to the complexity of environmental quality standards,there is currently a lack of effective systematic methods to measure and balance the "drop equivalent" of environmental quality index among different substances in severely polluted environment,which has guiding significance for the "pollution results" level,while only case identification can be made for the "serious pollution results" level Affirmed.For the standard identification of "disposal" in the crime of environmental pollution,we should return the objective illegal elements of the crime to the track of taking "serious environmental pollution" as the result of harm,and form a crime identification paradigm based on the standard of equivalence and equivalence of legal interest infringement among behavior methods by referring to the result of harm of "discharge and dumping".That is to say,in Article 1 of basic criminal clause in 2016 judicial interpretation In the application of items 1,5 and 6,the purpose limit of "no pollution result" for illegal disposal shall be reduced to "no pollution result";in the application of items 2,3 and 4,the purpose limit of "no pollution result" for illegal disposal shall be reduced to "serious pollution result".In addition,the defendant shall be considered to provide and quote the illegal disposal in the form of counter evidence to prevent serious environmental pollution The defense reasons for the formation of relevant evidence,so as to exclude the illegal disposal of not seriously polluting the environment from the criminal attack of the crime of polluting the environment.