Research On The Object Of What Environmental Criminal Law Protects

Recently,many debates in the field of environmental crime can be attributed to the object of environmental protection itself.In terms of basic theory,what are the functions,objectives or tasks of environmental criminal law,what environmental crimes violate and what environmental criminal law protects? All these problems point to the object of environmental criminal law protection.There are many different theories about the object of environmental criminal law protection,and there has been no consensus in the academic circles.Therefore,there are two voices,one is premature,prepositive legal benefits,abstraction,responsiveness,and symbolism of environmental criminal legislation;and the other is relative lagging of environmental criminal legislation and environmental crimes governance,and advocacy of cumulative crimes.In judicial practice,criminal punishment is more active and avant-garde than administrative punishment in many cases.While in some cases,the same fact ascertained in a civil judgment may,should or has reached the standard for the criminalization of environmental crimes,the criminal punishment will not act.In the system of environmental criminal law,the same act of committing different crimes gets different conviction and sentencing.In the legislative evaluation,people are accustomed to take environmental criminal legislation as an example to criticize the expansionary criminal legislation of our country in recent years.The problems involved here is,on the one hand,what is the object protected by environmental criminal law? On the other hand,where is the boundary of the object protected by environmental criminal law? The debates about the objects of environmental criminal law is mainly because people's discussion on it is limited in the concept of legal interest,the legal interest of such a bearing the concept of the classical liberal thought in enlightenment period is difficult to adapt to the development of modern criminal law which represented by environmental criminal law.In other words,even though the concept of legal interest has been reinterpreted and given new functions in the current academic prosperity,it is still a limited concept in the modern society with increasingly complex functional differentiation.In addition,the problems encountered in the modernization of criminal law itself have been in a state to be solved.As a typical representative of modern criminal legislation,environmental criminal legislation is bound to encounter attacks from these problems.However,the crisis of formal rationality in the modernization of criminal law needs the formal rationality to be rematerialized.In the general theoretical research of criminal law,people more from the perspective of social change to observe the modern society of criminal law essential rational needs,and pay more attention to how to break the rigidity of this form through the substantive means,but pay less attention to the problem of the change of law itself and how the law change and social change coexist.Therefore,it is of great significance not only to the development of academic theory,but also to the guidance of criminal legislation and judicial practice to make clear the fundamental problem of object.In the process of the modernization of criminal law,how does environmental criminal law deal with itself? There needs to be a return to the observation of modern society itself.From the perspective of sociology,modern society is a complex society with functional differentiation.As a result of differentiation,criminal law has its own logic of operation.So,Luhmann's system theory is cited here.Using the research method of Luhmann's system theory,namely,the previously dominant way of experience/transcendence and subject/object is replaced by system/environment.This kind of research paradigm transformation played down human individual,realized the decentralization,advocate the parallel operation of the relationship between system,from this point of view,although the system theory against vaporous principle of value,human rights concept,ethics,and other interference in law.But its theory itself everywhere to maintain such a fair and justice.From the perspective of criminal law theory,this research paradigm breaks the myth of system supposed by doctrinal science and solves the rigid problem of “Lisztsche Trennung” gap advocated by legal positivism scholars in the field of criminal law.In recent years,some scholars in the field of criminal law in China have tried to introduce Luhmann's system theory,which provides a new perspective for people to think about criminal law from a macro perspective.However,the conclusions obtained from such introduction are often too broad,focusing on the framework assumption of criminal law system,and lack of theoretical application and concrete construction.Some German scholars,such as Amelung,tried to absorb Luhmann's system theory after analyzing the limitations of the concept of legal interest,but it was German criminal law scholar Jakobs who really introduced Luhmann's theory into the criminal law and completed the system construction.Looking at Jakobs' normative violation from his intellectual source – Luhmann's system theory,we can find that many of the criticisms of Jakobs by proponents of legal interest are misinterpreted.Unfortunately,in the face of all kinds of criticism,Jakobs ended up with Hegel.Although Jakobs absorbed the freedom/obligation(sollen)such a set of basic binary distinctions about symbols and expected structures of social communication in Luhmann's system theory,he did not pay attention to Luhmann's later autopoiesis theory and Luhmann's structural coupling theory proposed in the face of criticism of closed operations.These are the keys to unlocking the legal crisis.From Luhmann's system theory,it can be concluded that the object of criminal law protection is norm.This kind of norm is different from the conceptual norm which evolves from the fact,it is a kind of norm which the legal system creates itself.The logic of norms derived from facts carries out the monism of sollen derived from existence,while Luhmann opposes all empirical realities into his system theory.From the point of system theory,environmental criminal law has the nature of autopoiesis.According to Luhmann's description,autopoiesis follows the following logic: a system is composed of elements,which are generated through the recursive arrangement of information and form a network system structure,and it is constructed and maintained through meaningful communication and replication of communication.Their self-reproduction requires the identification of the system,that is,distinguish between the system and the environment,which is achieved by attributing the selected system to the system rather than its environment.This distinction,in turn,relies on self-observation and self-description to be introduced into the system.In the legal system,legal norms are formed through the institutionalization of specialized and consistent behavior expectations.The behavior expectation comes from the decision of freedom/ sollen.This basic binary rule ensures the maintenance of the autopoiesis of law and excludes the values or ethics endowed by external subjectivity.In the circular structure shaping of self-observation and self-description of some key elements of the general legal system,the independent recursion of criminal law operation can be realized.By giving "meaning" different from the general legal system,criminal law can construct its own network interwoven structure.The unification of the autopoiesis system of environmental criminal law determines the stability of the system structure.Norm's autopoiesis strengthens the autonomy of environmental criminal law.The closed operation of criminal law system makes the object of environmental criminal law protect to self-limit.But the closed operation of the criminal law system is not isolated from the outside world.And environmental criminal law should not go too far to open the cognition,otherwise all the functional differentiation and reduction efforts of the system will be in vain.The opening of the legal system is based on the self-referential closure of the norm,while the autopoiesis and self-replication of the closed legal system requires the communication of information between the legal system and the environment.In relation to the environment,the environmental criminal norm is open to the outside cognition in the form of structural coupling.The structural coupling of the legal system is mainly aimed at the arbitrariness and reckless brought by the exchange between the traditional open system and the inflow and outflow of environmental information.In order to avoid the input intervention of other systems,the relationship between criminal law and its environment is presented in the form of structural coupling.The premise of the coupling of criminal law system structure is the closure of criminal law autopoiesis' operation.The structural coupling of environmental criminal law shows the openness of environmental criminal law to its environment.It is a kind of external reference relative to the closed self-reference of operation,which makes a certain response through its own environment,namely the disturbance of other system information operation,and through the communication of meaning.Interference and stimulation exist because of structural coupling.Without structural coupling,there will be no interference,and the system will lose the opportunity to learn and reform itself.The structural coupling of environmental criminal law will bring about the effect of structural change.An important example of coupling of environmental criminal law system and economic system structure is the judge's evaluation of public and private property losses caused by environmental damage when reviewing the standards of incrimination and penalty discretion in the process of judgment.At present,people pay more and more attention to the monetization of ecological value.The typical coupling of criminal law and political structure lies in the introduction of criminal policy and criminal legislation.In conceptual jurisprudence,interest balance has always been a medium of communication between law and the outside world,but in the self-referential autopoiesis criminal law system,interest is only a concept to realize the external reference of the system.The concept of legal interest originates from the concept of interest,and it carries too much significance in the doctrine of criminal law,so it cannot be a medium for environmental criminal law to communicate with the outside world.Roxin structured the criminal policy into the criminal law system,which to a certain extent conforms to the requirements of Luhmann's Autopoiesis system for the unity and stability of the legal system,but it is still an external factor of the criminal law system,and a manifestation of the coupling of political and criminal law structure.The coupling media of environmental criminal law and its environmental structure should be the core concept in the criminal law system,only the concept of norm can undertake such a function.In short,the norms of environmental criminal law should be the object of protection.Only they can explain and establish a new environmental criminal norm.The closed operation of criminal law system blocks the interference of external ethics,value principle and interest balance,and restricts the arbitrary expansion of environmental criminal law norms.The opening of the cognition of criminal law system promotes the study of environment and the structural coupling of environmental criminal law norms with other systems.Self-reference and external reference ensure the unification of formal argumentation and substantive argumentation of environmental criminal law norms,which is conducive to the rematerialization of formal rationality.