Research On The Culpability Form Of The Environmental Pollution Crime

In the "Criminal Law Amendment VIII " issued by China in 2011,a major change was made to Article 338 of the Criminal Law.The crime was changed from the "significant environmental pollution accident" to the "pollution of environmental crime",and the crime was also From the previous “causing major environmental pollution accidents” to “seriously polluting the environment”,this has widened the scope of punishment and reduced the threshold for entry into crimes,reflecting the independent protection of environmental law benefits by criminal law.However,because the criminal law does not clarify its sinful form,it can only be determined based on the description of the crime,so it is often controversial.In judicial practice,it is difficult to identify its sinful form,and cases that have been characterized as faults and intentions have occurred.Therefore,the author believes that clear forms of sin are very important for sentencing and conviction.Based on this,this paper uses historical research and comparative research methods to analyze the current theory of sinful forms in this aspect,and to compare and analyze different forms of sin in the Anglo-American legal system and civil law countries,so that it is better.Improve and improve the domestic legislation on environmental pollution.This article consists of five parts.The first is an overview of the crime of polluting the environment in China.The concept of environmental pollution is introduced from the concept and constituent elements.The crime of polluting the environment refers to the act of discharging,dumping or disposing of radioactive waste,wastes containing infectious disease pathogens,toxic substances or other harmful substances,seriously polluting the environment,and being subject to criminal punishment according to law.The object of the crime of polluting the environment has certain complexity,including the personal rights and property rights related to the environment,and the state-related environmental protection management system.The objective aspects of the crime of environmental pollution are mainly reflected in the non-compliance with national laws and regulations,the dumping and discharge of various harmful substances,radioactive wastes and toxic substances,and the pollution of the environment.The main body of the crime of polluting the environment is the general subject,which mainly includes the unit and the natural person.Subjective,that is,sin refers to the intention and negligence of a crime.Regarding the sinful form of the crime of polluting the environment,Article 338 of the Criminal Law does not mention whether it is intentional or negligent,which in turn caused different conclusions from different experts in China.The second part expounds the reasons for the controversy over the crime of environmental pollution.From the legislative evolution of the crime of environmental pollution,the change from the crime of “significant pollution environmental accident” to the crime of “polluting the environment”,the criminal law promulgated in 2011 Amendment VIII.Among them,the corresponding amendments and improvements were made offline,and the term “significant environmental pollution accident” was adjusted to delete the word “accident” into “contamination of environmental pollution” and would cause personal injury and property damage.The result of the requirement is ruled out,which raises a question.What is the sinful form of the crime of polluting the environment? At the same time,the author searched for the result of the "contamination of environmental pollution" in 2011-2018,and retrieved 7207 as of December 2018.The verdict was then read and analyzed.There were 584 forms of guilty intentionality and 133 cases clearly defined as negligence.In addition,there were 6,493 cases that did not identify the crime of environmental pollution.In all cases Its proportion has reached 90%.Therefore,it can be seen that the judge does not determine the sinful form of the crime of environmental pollution in judicial practice,so the attitude is not clear,in my opinion.A core component of the composition of crimes is the form of sin,which has greatly affected the establishment of crimes and has a greater impact on the extent of sentencing.Therefore,in the process of identification,we must attach great importance to the form of sin.The third part analyzes the theory of the crimes of environmental pollution crimes at the current stage in China.Scholars who support the theory of negligence generally believe that this form of sin has certain negligence,that is to say,the actor does not comply with the state regulations,and should be able to foresee the dumping,discharge and other radioactive toxic substances and wastes,etc.The situation that caused serious pollution,but was not foreseen due to negligence,or foreseen that no effective measures were taken to avoid such pollution.Scholars who deliberately say that such crimes belong to a deliberate form of sin,that is,intentionally failing to act in accordance with the standards set by the state,intentionally dumping,discharging,and other radioactive toxic substances and wastes,is a subjective attitude..Holders of vague sin say that scholars generally believe that whether they are negligent or deliberate in their own results,they should be considered to be environmentally guilty if they are leaked or deliberately polluted.Proponents of double sin say that this crime can be composed of intentional or negligence,that is,"intentional and negligent" is the sinful form of the crime.The fourth part analyzes the provisions of the criminal law of the civil law system of the civil law system and the common law system.Based on the theory of fault liability,the situation of many countries in the civil law system is analyzed and analyzed.Most countries apply the double sin theory,and in addition to deliberate crimes,the crimes of negligence are also stipulated in other articles.Both the German criminal law and the Japanese legislation stipulate pollution of environmental crimes from two aspects: intentional crime and negligent crime.The Anglo-American legal system is not limited to “no offense,no prisoner”,and introduces strict liability in the field of criminal responsibility.As long as the behavior of the actor is in violation of the criminal law,it can be negatively evaluated in the form of law from the objective aspect.That is,it is a crime and it is necessary to bear the relevant criminal responsibility.The author believes that based on the principle of fault liability,China's environmental pollution crime can refer to the principle of double sin in terms of subjective crimes.At the legislative level,the following two forms of sin can be specified: one is negligence and the other is intentional.The fifth part first clarifies the rationality of the double sin.According to the spirit of revision of the Criminal Law Amendment VIII and judicial practice,it is undeniable that this crime can be constituted by negligence;with reference to foreign legislation,for civil law countries,the subjective aspect of environmental pollution crime is negligence and Deliberate double sin;from the perspective of the coordination of the criminal law system,there are precedents for the composite sin in China's criminal code.Based on the above analysis,the author proposed a shallow legislative design for the crime of environmental pollution based on the double sin.In this regulation,the crimes are divided into two categories: the crime of negligent pollution and the crime of intentionally polluting the environment,thus making it more scientific,and the judicial organs can strictly handle cases of environmental crimes in accordance with the law.