The Dilemma And The Way Out Of The Crime Of Environmental Pollution In Judicial Application

In 2011,the Criminal Law Amendment(VIII)was promulgated,in which Article 46 amended the crime of major environmental pollution accidents stipulated in Article 338 of the Criminal Law of 1997,not only changing the crime of major environmental pollution accidents to the crime of environmental pollution,but also making some major adjustments to the conditions for the establishment of the crime.With the emergence of a series of problems in the judicial application of the crime of environmental pollution,the Supreme People's Court and the Supreme People's Procuratorate jointly issued the Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases of Environmental Pollution in 2013and 2016,which made detailed provisions on the conviction and sentencing standards of the crime and related legal application issues,and further strengthened the criminal judicial protection of the ecological environment.However,there are still some outstanding problems in the judicial application of current environmental pollution cases.Based on this,this paper further deepens the difficult theoretical research on the crime of environmental pollution,in order to provide an operable solution to the outstanding problems in practice.By adopting the method of statistical analysis of case data,this paper takes 10353 cases of environmental pollution crimes closed in the first instance of China Judgment Document Network from 2011 to 2019 as a model for inductive analysis,and reveals the current situation and outstanding problems of environmental pollution crimes in judicial application in China.The concrete manifestation is that the guiding ideology of environmental crime is not unified,the determination of causality is complex,the penalty setting and specific application are light,and there is a lack of qualification punishment and restorative sanctions.In order to solve the above problems,starting from the existing criminal laws and regulations in our country,combining with the controversial focus of the crime in theoretical circles,and taking the advanced governance experience of foreign countries as reference,we should find a way to solve the dilemma: it is suggested that the concept of sustainable development and the concept of "restorative justice" should be taken as the principled guiding ideology to deal with the crime,expand the identification of the dangerous criminals in the crime form,recognize the double sin form of intentional and negligent coexistence,and appropriately introduce the "strict liability principle" and "epidemiological causality theory".