| Since the reform and opening up,the industrialization process has been accelerating,and the "pains" in the process of economic development have gradually appeared.Tuojiang River pollution accident,Songhua River pollution accident,Tengger Desert pollution accident and other "earth wars" caused by enterprises’ production and operation activities have caused great damage to the ecological environment and posed a great threat to people’s life,health and property safety.The criminal law of China provides a normative basis for punishing the crimes of environmental pollution committed by companies,enterprises and other corporations,and affirms the dominant position of corporations in the crimes of environmental pollution.However,in practice,the identification of the subjective fault of the corporate committing the crime of environmental pollution is vague,ignoring the identification of the corporation’s negligent crime of environmental pollution,and improperly transferring the corporation’s negligent liability.In this situation,it is not only contrary to the original legislative intent of articles 338 and 346 of the criminal law,but also does not meet the current practical needs of severely cracking down on environmental crimes,and it is not conducive to the realization of the prevention purpose of the criminal law on corporate environmental pollution crimes.The reason is that there is a dispute about the identification of corporate negligence in the crime of environmental pollution in theory,which makes the identification in practice at a loss.At present,the identification of corporate fault in the crime of environmental pollution mainly has the following difficulties in theory: the dispute over the subjective fault form of the corporate subject,the dispute over the subjective fault form of the crime of environmental pollution and the conflict in the identification of the fault of the person responsible for the crime of the corporation.This paper focuses on the analysis of various theories,confirms the theoretical basis of the identification of corporate negligence in the crime of environmental pollution,and then constructs the specific rules of the identification of corporate negligence in the crime of environmental pollution.In order to provide theoretical basis and solutions for the identification of corporate negligence of environmental pollution crime in judicial practice.This paper consists of four chapters.The first chapter is an overview of corporate negligence in the crime of environmental pollution,which mainly expounds the relevant concepts of corporate negligence,analyzes the differences in the subject status of corporations in environmental crimes inside and outside the domain,and the importance of identifying corporate negligence in the crime of environmental pollution.The so-called corporate fault refers to the subjective guilty attitude that the corporation should foresee that its behavior may cause harm to the society,because it did not foresee it due to negligence,or believed that it could be avoided because it had foreseen it,so as to cause harm to the society.At present,there are differences in the subject status of corporations(legal persons)in environmental crimes both inside and outside the region.The common law system has always recognized the status of corporations(legal persons)as the subject of crimes,while the civil law system has a dispute about whether corporations(legal persons)can be the subject of environmental crimes.Article 346 of the criminal law of China expressly stipulates that corporations can constitute the crime of destroying the protection of environmental resources,and affirms the subject status of corporations in environmental crimes from the perspective of legislation.Therefore,on this basis,it is of practical significance to explore the identification of corporate negligence in the crime of environmental pollution.The identification of corporate negligence in the crime of environmental pollution is not only an essential requirement to follow the original legislative intent of the criminal law,but also an effective way to solve the problem of corporation will proving in the crime of environmental pollution.It can also give full play to the preventive role of the criminal law in the crime of environmental pollution.The second chapter analyzes the current situation of the identification of corporate negligence in the crime of environmental pollution.At present,in the judicial cognizance of the subjective aspect of the corporation in the crime of environmental pollution,there is a situation of fuzzy treatment of the subjective fault form of the corporate subject,that is,the fault form of the corporate subject is not clear in the cognizance of the corporate crime of environmental pollution.At the same time,ignoring the identification of the crime of environmental pollution by corporate negligence,in some serious environmental pollution accidents with corporate negligence,only the relevant responsible persons are investigated for criminal responsibility,and the criminal responsibility of the corporate subject’s negligence is not investigated.The natural person should bear the fault liability that should be borne by the entity subject,which is actually the improper transfer of the fault liability of the entity.The reason for the above situation is that there is a great controversy on the identification of corporate negligence in the crime of environmental pollution in theory.First of all,there is a dispute about the subjective fault form of the corporate subject.Theoretically,there are two opposite views on the subjective fault form of the corporate crime: fault affirmation and fault negation.Secondly,the crime of polluting the environment itself also has a dispute over the subjective form of crime.At present,there are theoretical views on the subjective form of the crime,such as the theory of negligence,the theory of intention and the theory of compound crime.Under the current situation that the theory of intention occupies a general position,there is a dispute about whether the crime can be constituted by negligence.In addition to the theoretical disputes on the form of crime,how to solve the possible crime conflicts of the responsible persons in the identification of the crime of polluting the environment has also become a challenge for the identification of the fault of the corporation in the crime of polluting the environment.The third chapter is the theoretical analysis of the identification of corporate negligence in the crime of environmental pollution.First,it is the necessity analysis of the fault form of the corporate subject.Based on the comprehensive analysis of the current theory of affirmation and negation of corporate fault,it is more in line with the requirements of social development and judicial practice to recognize the theory of affirmation of corporate fault.Secondly,on this basis,it discusses the existing theoretical disputes about the subjective form of the crime in the identification of corporate crime of environmental pollution crime.At present,there are three main theories about the subjective form of the crime of environmental pollution: the theory of single crime,the theory of compound crime and the theory of fuzzy crime.After analyzing the contents of various theories,this paper,in combination with the spirit of the amendment of the criminal law,the provisions of the criminal law and relevant judicial interpretations,agrees that it is more reasonable to adopt the theory of compound offence in the subjective offence form of the current crime of environmental pollution,that is,under the premise of not denying the intentional offence of the crime of environmental pollution,affirming the negligent offence can also constitute the crime.Specifically,the forms of corporate fault in the crime of environmental pollution include corporate behavior fault,corporate supervision fault and corporate management fault.After the subjective theoretical basis of the identification of corporate negligence in the crime of environmental pollution has been established,this paper analyzes which fault theory is more suitable for the current identification to meet the characteristics of corporate environmental pollution crime.At present,the basic theories of negligent crime mainly include the old fault theory,the new fault theory and the fear theory(the new new fault theory).This paper analyzes the differences in the background of each theory and its emphasis on the content of the duty of care,It is believed that the new negligence theory is more consistent with the actual situation of the crime of environmental pollution by corporations.Therefore,this paper agrees to identify the corporate negligence in the crime of environmental pollution under the new negligence theory.The fourth chapter is the construction of specific rules for the identification of corporate negligence in the crime of environmental pollution.Firstly,according to the basic theory of negligent crime,the judgment standard of the duty of care of the corporate subject in the crime of environmental pollution is made clear.During production and operation,the entity has the obligation to comply with relevant laws and regulations,internal rules and regulations and other relevant provisions,make reasonable decisions to carry out production and operation activities in accordance with the law,and ensure the legitimate and compliant operation of the entity,and the compliance obligation in a broad sense that the entity must pay attention to the legal,specified and designated obligations formed by business activities,that is,the supervision and management obligation of the entity.Secondly,it clarifies the subdivision types of corporate fault "seriously polluting the environment",specifically including the corporation’s behavior fault of improper decision-making to discharge pollutants and the corporation’s supervision and management fault of improper supervision to discharge pollutants.The corporation’s behavior fault of improper decision-making to discharge pollutants also includes the negligence fault of improper single decision-making to directly discharge pollutants and the overconfidence fault of improper decision-making to secretly discharge pollutants,The supervision and management negligence of "seriously polluting the environment" caused by improper supervision of corporations also includes the supervision negligence caused by supervision and management personnel dereliction of duty and the management negligence caused by the lack of corporate management system.Finally,standardize the ways to identify the crimes of the responsible persons in the corporation,and identify the forms of the crimes of the "directly responsible persons in charge" in the corporation according to whether they perform their duty of care(behavior obligation and supervision and management obligation);The criminal forms of the "other responsible persons" in the corporation are comprehensively judged according to their specific cognitive factors and will factors.After clarifying the criminal forms of the responsible persons in the corporation,they will bear the criminal responsibility corresponding to their criminal forms according to their specific crimes. |
