Legislation on environmental crime, few ideas
【Abstract】 In our modernization process, the serious pollution of the environment and destruction have become increasingly prominent, environmental protection has been referred to an unprecedented height.
Clearly, only the means of civil and administrative penalties, is not enough. Theory and Practice sector has also increased attention to criminal law's role in the protection of the environment. China's Criminal Law, amended in 1997 improved the criminal law protection of the
environment, the protection of the environment and natural resources has played an important role, but there are still many shortcomings and should be perfected. According to China's environmental protection, criminal law,
environmental crimes should be increased to the provisions of Potential Damage.
Key words environmental crime no-fault liability provisions of Potential
Problem of environmental crime and environmental law theory and criminal law theory study of a hot issue in recent years, as China's rapid economic development, environmental issues more and more attention, more and more government officials to improve the environment as a concern for people's livelihood an important measure. As China's current institutional
and legislative environment inadequate, resulting in environmental issues more marked form, serious pollution of the environment, destroying the ecological balance of the cases are legion, more and more cases of environmental disputes and how to use criminal law to better combat
environmental crimes, environmental crimes to effectively curb the momentum of environmental law and criminal law would be a good link up. As the application of the law of environmental crimes different from other
ordinary crimes have many features of traditional criminal law had a big impact, it is necessary to break with traditional thinking, a fixed type, reconstructed concept of environmental crime, criminal law, specifically the following points:
1, from the constitutional level, to further improve the
programmatic norms on environmental protection
That departmental level, from the Constitution the basic principles of law that can effectively promote the sectoral laws to be rapid, healthy development. At present, our Constitution has been lagging behind the needs of the development of environmental practices, if not in a timely manner to introduce environmental concepts in the Constitution, is bound to affect the cause of the vigorous development of national
environmental protection, and national scientific development strategies have some impact.
(A) Environmental protection concepts and ideas of the Constitution must be introduced as soon as possible. In the preamble of our Constitution should be involved in environmental protection concepts and ideas, and the national implementation of scientific development and sustainable development strategies for achieving the great rejuvenation of the Chinese nation to step up to run events to promote environmental
protection concepts and ideas to further enjoys popular support, in order to to provide environmental protection and harmonious space for development.
(Ii) environmental rights, environmental protection principles in
the Constitution clearly defined. "The People's Republic of China Environmental Protection Law" Article VI provides that "All units and individuals shall have the obligation to protect the environment and the right of the pollution and damage to the environment of units and
individuals to report and accuse." From which the law of view, we are currently The main emphasis in the law is the obligation of citizens to environmental protection, while the lack of the environmental rights of citizens expressly provided, therefore, our Constitution should be made clear right to the environment as a "civil rights and obligations" one of the elements, and the Constitution reflected in the country to develop a national policy of environmental protection as affirm.
Second, improve the national environment to adapt to the Basic Law, the fundamental wears
We not only from the constitutional level, improvement of national regulations on environmental protection, but also to further improve the state's basic law on environmental protection with the basic system, the basic principle of adaptation to the environment in harmony the Basic Law so that it can reflect the scientific development and sustainable development strategies thinking, to become open, very
inclusive environment for the Basic Law.
Third, China's environmental legislation should be able to
reflect the changes in China's economic policy
(1) China's accession to the World Trade Organization, China's economic policies which will have a significant impact, at the same time, it will promote our country and the world economic and technological exchanges and cooperation.
(B) and environmental rights-related environmental information
management system established first. Once the citizen's environmental
rights be recognized in law, citizenship in order to safeguard their own legitimate rights and interests, then certainly for the environment-
related information is concerned. However, the citizens how to access to environmental information, environmental information is provided by what kind of units issued, as well as information release to the environment in the process of management, the need to develop appropriate policies or laws and regulations to regulate.
(C) should be intensified to develop "recovery method." With China's accession to the World Trade Organization, information, and the electronics industry will further develop the continuous improvement of people's living standards, for television sets, refrigerators and so the
number of discarded home appliances are bound to have increased, therefore, should be as soon as possible the development of relevant policies or laws and regulations, for waste electrical appliances, batteries and mobile phone recycling, dealing with issues such as to make specific provisions to protect the ecological environment from pollution.
Fourth, China's environmental crime, criminal legislation should provide for free papers Potential Damage reposted elsewhere on the
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Potential Damage refers to the implementation of the perpetrator is sufficient to cause some real damage risk criminal acts, although the results are not yet in fact harm occurs, but has caused a dangerous condition that constitutes a crime consummated, this crime is the Potential Damage. We are referred to here is the Potential Damage of environmental crimes, apparently only on the basis of the concept of environmental crime, environmental crime, the suspects can be the meaning
of an accurate expression.
Environmental Crime in the performance of the objective aspect of the pollution or damage to the environment, endanger personal safety or to the ecological balance and major property of the company under serious
threat or harm behavior. Acts of environmental crime can be divided into
two categories: one category is environmental pollution behavior, both the illegal importation of a large number of substances into the environment or energy, more than self-cleaning the environment, regulating function
decline in environmental quality caused by, resulting or likely to cause serious consequences .
The other is damage to the environment is mainly the behavior of natural resources, namely, development and utilization of natural
resources, the illegal removal of certain resources from the natural world, species, alter or destroy the natural environment of the original appearance, shape and other activities, more than an environmental The self-regulation and balance function, serious behavior.
Potential Damage of environmental crimes is the perpetrator in violation of national laws and regulations that endanger the environment behavior, enough to cause environmental pollution or damage, leaving the
natural and human life, health and property of the company who is in critical condition.
Potential Damage as environmental crime, has three
characteristics: (1) said here today that the "dangerous" is an objective reality, not a subjective act, or conjecture; (2) "dangerous" is for the purposes of the human environment, is to make environmental crime the objective at risk; (3) "dangerous" level is more serious, may result in both scope and extent of deep, difficult to restore the environmental
pollution or damage, and may even endanger the safety or cause significant loss of public and private property.
The provisions of certain environmental crimes Potential Damage is mainly based on the value of the environment per se be considered. Only one
earth, the earth to humanity affordability is limited, a long time, human exploitation of natural resources, aggravating already serious impact on our living environment and sustainable economic and social development, environmental issues and urgency of the seriousness of requires that we
must strictly control the environment, crime, as far as possible to prevent such incidents. Environmental crimes provided that its purpose is to ward off this danger, with a very positive meaning.
First, the punishment of Potential Damage to environmental crime to stop the dangerous bud, to avoid the ex-post real relief after the
damage occurred, so that timely protection of the environment;
Second, give full play to the Penal Code is conducive to the
forecast, guidance, as well as a deterrent, the punitive function, so that people can know what their behavior may have criminal consequences, which makes it more prudent to treat their own eco-environment;
Third, the provisions of Potential Damage acts committed both to
make up deficiencies, but also committed to prevent the results of the lag, from the implementation of criminal law protection of the environment, this is a more positive, rational and effective measures.
China's current criminal legislation in no Potential Damage provisions. 1997 Criminal Law on Environmental Protection to the basic is the result of criminal legislation to punish guilty of an object, without the Potential Damage as a disciplinary object. We believe that this is a
major flaw on the characteristics of environmental crime, once the actors begin to implement its behavior, we will have a realistic environment and potential risks. In order to protect public interests, such as harm the environment without real harm occurs, the law should be enough to cause such pollution and destruction of the environment acts as a crime. Therefore, the proposed legislation to increase the provisions of Potential Damage to the environment, crime, give full play to the Penal
Code punishing Potential Damage of the pre-barrier.
5, China's environmental crime should be implemented no-fault
No-fault liability principle means that the violations were subjective, whether deliberate, negligent or without fault, as long as the
implementation of a certain behavior, and caused a certain amount of harmful consequences, the perpetrator must bear legal responsibility. This principle held liable in civil and administrative sanctions have been in the world in many countries and regions applied. The accountability environment, criminal use of this principle, only the common law countries. Reposted elsewhere in the paper for free download http://
Although China's current penal system does not recognize the
principle of liability without fault, but does not mean that we have established in this field system has been perfect, do not need to be further explored and improved. Overall, China's current environmental conditions and the fact that a large number of environmental crime is not
an easy topic.
Some people worry that the implementation of the principle of liability without fault, there will be no fault act a penalty being imposed on offenders, will result in a "super-crime" of the tendency
unduly expand the scope of environmental crimes, which have a negative impact to the country to bring some unnecessary burden for companies to bring litigation tired is not conducive to national economic development. This is unnecessary, and pros and cons of the implementation of what
principles will continue to exist, the problem is to objectively weigh the size, and correctly handle the relationship between the pros and cons, as far as possible while avoiding disadvantages, the disadvantages minimized.
After half a century of efforts, China's environmental protection laws and regulations with the country's social and economic activities closely related to civil, administrative areas has considerable development, but in the policies and regulations in the situation needs to
be further improved. Establish and improve the environmental situation in policies and regulations still need further refinement. Establish a perfect environment for criminal policy and penal measures, it will
seriously harm the environment into the crime out of behavior, is the socio-economic development needs, will play a multiplier of the effectiveness of environmental protection. Reposted elsewhere in the paper for free download http://