The Legislative Modification Of Environmental Crime On The Philosophical Foundation Of “Ecological Legal Interests”

With the continuous improvement of the ability of human beings, we seem to have been invincible and ever-victorious, but when humans are delighted for their "achievements", nature begins to revenge and humans have begun to live in the environmental risk society which has been created by them. As a result, the environmental problem has gradually become the focus of human attention in twenty-first Century, improving the environmental criminal legislation has become the focus of legislation in our country. However, the protecting goal of our current environmental criminal is not clear and waves among personal legal interests, property legal interests, order legal interests and ecological legal interests, which makes the purpose of environmental crime legislation indistinct and it is very unfavorable for the protection of the ecological environment. In the thesis, we insist among four kinds of legal interests, the ecological legal interests should be the main goal of environmental protection, and the remaining three kinds of legal interests are the secondary objectives to environmental crime protection. Based on this theme, the thesis will be divided into five parts to study the legislative modification of environmental crime on the philosophical foundation of ecological legal interests.The thesis takes the "interest" as the starting point, interest is the need to meet, the minimum need is to survive, which is life in the performance, so the subject qualification of nonliving and stakeholders of future generations is excluded. The concept of ecological interests is broader than the concept of ecological legal interests. Based on combing the concept of ecological interest,the author thinks the subject of ecological interests is human beings and non-human life forms. In the thesis, "legal interest" is taken as a starting point, by analysis of the relationship between legal interests and interests,the thesis draws a conclusion that the subject of ecological legal interests is human being, which further excludes the subject qualification of ecological legal interests of non-human life forms.In the thesis, "ecology" is taken as a starting point, by comparing ecosystems and environmental resources, a conclusion is drawn that the economic attribute of environmental resources is noted and it is difficult to get rid of the inborn defects of being caught in the quagmire of the classical anthropocentrism. While the ecosystem emphasizes the integrity and its strong foundation of natural science research, so a conclusion can be drawn that it is more appropriate to take the ecosystem as an object of ecological legal interests. Thus, the concept of ecological legal interests should be defined as: it is the interest which is protected by law, provided to humans by ecosystems, independent of the personal, property, order legal interests and environmental spiritual benefit of humanity and taken as a fundamental support and decisive effect for human survival and development.In the discussion of the rationality of the environmental crime which takes the protection of ecological legal interests as the center, the author puts forward the idea that ecological legal interests should be the center, which is originated from the special particularity of the ecological interests-difficult recovery, public attribute and cross-border effects. In the thesis, the author demonstrates the infeasibility to do perfect compensation for the damage of ecological legal interests which is difficult to recover, using the “no difference” standard in the economics, the serious social harm by the public attribute which the ecological interests damage has, and the environmental criminal punishment is not a country of their own affairs, but the common cause of the entire world, because the ecological interests damage has cross-border effects. China’s environmental criminal law should be in line with the environmental criminal law of the advanced world’s countries. So it is necessary to protect the ecological legal interests intervened by the criminal law. On the basis of this, combined with the performance which takes the protection of human tradition legal interest as the center in current environmental criminal law in our country, the thesis further demonstrates the ecological legal interest is the main object of environmental crime, the damage of ecological legal interests is the most essential difference between environmental crime and other crimes, and taking the protection of ecological legal interest as the philosophical foundation can effectively curb the occurrence of the environmental crime.Although there are some signs of the protection of ecological legal interests in the criminal law, we can find deficiencies of environmental crime in three areas when we reflect on the environmental criminal legislation on the philosophical foundation of ecological legal interests. They are as the following: the protection of ecological legal interests is not comprehensive, which manifests the lack of protection of ecological fragile regions and the wetland ecosystem, and the repetition as well as the improper presentation of "number larger" and "have made agricultural land a large amount of damage” have been used and moreover, in crime of illegal occupation of agricultural land, the property tendency of forest stumpage accumulation as the standard is measured on social harmfulness in harmful forest criminal. The protection of ecological legal interests is lack of depth, which is mainly reflected on the protection of biodiversity only staying on the protection level of species diversity which is not overall, specifically demonstrating in lack of Alien Species Invasion Crime, lack of consideration to the whole process of the life operation, lack of putting pure ecological legal interests damage into the crime consideration. Criminal responsibility of Environmental crime is inadequate for the protection of ecological legal interests, which exists in the setting of criminal penalties magnitude being in imbalance between Environmental crimes and other related crimes and lack of criminal responsibility for the restoration of ecology against the damage conduct of ecological legal interests.Whether the addition and the adjustment of the criminal law provisions or the interpretation of them, it should be based on a separate Chapter of environmental crime. At the same time, the thesis comes to a conclusion that its location should be between two chapters which are the crimes of violation of civil rights, democratic rights and violation of property by discussing the conflict and the rank between ecological legal interests and the remaining three kinds of legal interests. For addition of specific crimes and the adjustment of Legal provisions, we should give equal protection to Key Ecological Fragile Regions as National Nature Reserve, and wetlands should be incorporated into criminal object of the crime of illegal occupation of agricultural land, and the crimes of invasive alien species, endangering nature reserve, illegal acquisition, and the destruction of rare and endangered wild animal eggs should be added which is to protect biological diversity. In the penalty, the thesis advocates that social service order system is appropriate for the environmental offenders to restore the ecology, who are sentenced to control, probation and parole in connection with the judgment for the purpose of restoring ecology in the judicial practice and by the comparison of the doctrines in theory.The quantitative standards of China’s environmental crime can not meet the need of protecting ecological legal interests. To evaluate the damage of ecological legal interests is the only way to overcome the indistinction of damage of ecological legal interests. The method which evaluate the damage of ecological legal interests and then included in the scope of legal regulation has been applied and got huge achievements in the United States and the European Union. The method has also been widely respected and learned by all countries. The method has three bases which includes that economics scholars have already possessed of ecological value assessment technology, criminal law has already had a certain degree of normative base and there is a certain operating basis on Forensic Sciences. Besides the presence of these bases, it needs more adequate preparation to use this method in criminal law. In the thesis, the author makes a further adjustment to the legislation of the crime of polluting the environment, the crime of illegal import of solid waste, the crime of illegal mining and the crime of destructive mining in order to fit the environmental crime legislation. The author advocates that the way of floating range in the design of incrimination standard of ecological legal interest damage should be used in order to resolve the conflict between the regional capacity of environmental capacity and the determination of the amount of conviction of ecological legal interests’ damage.