On Affirming The Crime For Environmental Supervising And Managing Dereliction Of Duty

The four hundred and eighth clause of the Criminal Law of People’s Republic of China stipulates that those civil servants who have the duty of environmental supervising and managing are irresponsible seriously and lead a severe environmental pollution accident so as to cause public and private property a great loss and casualties, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. The crime for environmental supervising and managing dereliction of duty is crucial for environmental protection. But the crime hasn’t been paid attention by the jurisprudential circle in China. Relevant discussions are rare. In juridical practice, the cases named by this crime are really rare and precious. To give play to the striking force of the crime for environmental supervising and managing, the author writes from the affirmation of the crime and study the crime from theory and practice. The author hopes to provide pygmy effort for the study of environmental criminal law and reference for striking the behavior of environmental pollution.The title of the article is On Affirming the Crime for Environmental Supervising and Managing Dereliction of Duty which discuss four problems mainly.First is to analyze from subject conditions of the crime through cases analysis, empirical study and system analysis and expand the subject scope of civil servant. At the mean time, the duty of supervising and managing is expounded in legislation. Main scope of functions of the crime is clarified. The juridical practice is provided with theoretical support through the definition of subject identity on legal malpractice and viewpoint of responsibility.Second is to further affirm the crime from the objects and clarify the objective definition of the crime and the existed academic controversy. That is to collect four controversial theories existed in academic circle about the objects of the crime, that is, the theory of normal activity, the systematic theory of environmental supervising and managing, the diligence of civil servant, the legitimization of power action and normal supervising and managing activities as well as citizens’ environmental rights. As the crime is consequential offense, the reason why the object is dual object is expounded from the legal interests of the nation and individuals.Third is to study from the affirmation of the subjective mentality of the crime and pay attention to state the theory of supervising negligence. In addition, the author analyzes from legal principle and practice and then gets a thought of revision that the crime is regarded as involuntary crime. Indirect intent is included in the subjective elements of the crimes so as to give fuller play to the function of striking environmental crime.Fourth is the behavioral pattern of the crime. The author writes from the affirmation on the results and consequences and further find the imperfection of the crime in legislation and provide strong evidence to improve the crime in which affirm the irresponsible behavior seriously and make a judicial demarcation of responsibility. The article is expounded according to the judicial explanation enacted by Supreme People’s Court and the Supreme People’s Procuratorate(hereinafter referred to as two-supreme) commonly in June 2013, and combining with the situation and formula mode of the great loss and serious results caused by juridical practice. Meanwhile, from the result of the crime, the defects of legislation and perfection of measure of the crime is stated. In addition, the casual relationship of the crime is one cause with many reasons with the complex and secret symbols but no unified identification standard to follow. The difficulty of affirmation and evidence in judicial practice can easily cause criminal offenders who should take the criminal liability at large. Therefore, the author believes that the affirmation of the crime for environmental supervising and managing dereliction of duty should be analyzed widdershins and defined level by level so as to confirm the casual relationship according to the reverse research methods in Criminal Law.