| Water resources are the basic natural resources and strategic economic resources related to the national economy and the people's livelihood,and are also the controlling elements of the ecological environment.Criminal law,as the last line of defense of society,should respond to the social problem of water resources protection by implementing the strictest ecological environment protection system.At present,there are some problems in the protection of water resources under criminal law,which are mainly manifested in: the confusion of the application of the terms of water resources related norms;In practice,illegal water intake mainly depends on civil and administrative means to regulate,but the effect is not ideal,illegal water intake behavior appears in endlessly;the use of environmental pollution crime to adjust water pollution behavior,due to legislation in the main The view is not clear,which leads to disputes in judicial practice;the link between crime and execution,the transfer rate of water resources cases is law;the confusion of the management of the consequences of water resources crime in practice.The text is divided into five parts,a total of more than 50,000 words:The first part: the definition of basic concept of water resources and the necessity of criminal law protection.In this paper,water resources are defined as freshwater resources,which exist in nature and can be used by human beings.They are divided into surface water and groundwater.water resources and other related concepts are divided,such as water flow and water environment.The implementation of the concept of green development needs to rely on the green system,and the norms of the criminal law concerning water can not be absent.The function of civil and administrative means is limited,and the new requirment of enviroment ethics,these factors determine the urgency and practical significance of thinking about water resources protection from the angle of criminal law.The second part: the standard investigation of water resources criminal law protection.This paper sums up the related articles in the Criminal Law,which are six counts and eight charges.It is mainly concentrated in the two chapters of the crime of endangering public security and the crime of endangering the order of social management.The provisions of laws and regulations such as the Water Law on illegal acts of water resources basically adopt the form of "if a crime constitutes a crime,criminal responsibility shall be investigated according to law." It may be more appropriate to call it "subsidiary criminal liability clause" rather than subsidiary criminal law norm,which makes subsidiary criminal law have only declarative function and become a dead letter.The third part: the problems existing in the protection of water resources criminal law.On the basis of the second part,this part mainly discusses five problems existing in the protection of water resources criminal law in our country: first,the object of protection is lack of pertinence,and the general view is that the object of crime of environmental pollution crime is the national environmental protection system.This view is still in the administrative thinking level,based on the eco-centrism of environmental law theory lack of practical operability,this article believes that the object of environmental crime should be environmental rights.At present,some scholars who support the theory of environmental law argue that the reality is the same as that of environmental rights.Second,the nature of illegal water intake is not clear,and the criminal law circles define the illegal water intake behavior.In the field of criminal law,there are three theories on the characterization of illegal water extraction.The author thinks that the crime of larceny can regulate by the crime of theft according to the current criminal law,but the crime of theft can not completely evaluate the behavior of illegal water extraction,in the long run,The crime of illegal water extraction should be added.Third,the legislation on water pollution is not clear enough.The author thinks that the judicial interpretation expands the crime of polluting the environment into the coexistence of the crime of behavior and the crime of consequence,which violates the provisions of the Criminal Law Amendment(8),and the subjective aspect of the crime of pollution of the environment should be intentional;Fourth,the execution of punishment appears to be fragmented,there is a low rate of transfer of cases,poor supervision and articles do not link up A clear,non-corresponding problem;The fifth is the application of restorative justice.The application of restorative justice in environmental crime cases means that in environmental crime cases,the judicial enforcement of ecological rehabilitation measures for offenders,What is more common in judicial practice is the measure of planting and restoring green which is suitable for the crime of illegal logging.In the case of water resources crime,the ecological restoration measures of the crime of fish breeding and illegal fishing for aquatic products are presented in the crime of polluting the environment.The ecological restoration measures applied in practice are confused,and the ecological restoration directly sentenced by current criminal judgment is understood as the more appropriate way of execution of the penalty.The implementation of the criminal incidental civil public interest litigation system in 2018 is beneficial to the implementation of the system.Alleviate the current chaotic situation;the application of restorative justice does not violate the principle of equality;at present,the application of restorative justice in cases of water resources crime has a low rate of application,the execution of the main body of the dispute,implementation effect evaluation is not clear.The fourth part: the change of the position of the protection of water resources criminal law.The first is to change the legislative concept,the traditional anthropocentrism and ecocentrism are too extreme,modern anthropocentrism neutralizes the two theories to a certain extent,so we should establish the environment ethics view of modern anthropocentrism.The second is to advance the time of the protection of water resources by criminal law,the management after the event is not enough to deal with the water resources crisis,we should explore a new governance model to promote the protection of water resources,from the post-governance to the early management of the transformation;Third,perfect the means of water resources protection.At present,the criminal law provides two ways of free punishment and fine,but in order to better protect water resources,it should be formed.Civil,administrative and criminal law "trinity" and internal freedom penalty,fine penalty and qualification penalty.The fifth part: the perfect suggestion of the water resources criminal law protection.One is to perfect the crime of wading water,to add the crime of illegal water taking,to perfect the regulation of the crime of polluting the environment,to improve the criminal responsibility,to perfect the application of the fine penalty,and to increase the stipulation of the qualification penalty;Third,improve the relevant supporting measures,do a good job in connection with execution,standardize the application of restorative justice. |
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