Criminal Responsibility For Failing To Perform Environmental Protection Supervision Duties

The behavior of non-fulfilment of environmental protection supervision duties consists of three aspects: the subject of the behavior,the basic characteristics of the behavior and the subjective elements.First of all,the identification of actors who do not perform environmental protection supervision duties should be defined from two aspects: identity and position.The judgment of position and identity should be based on relevant laws and regulations.Second,the basic characteristic of non-fulfilment of environmental protection supervision duties is that it has serious social harm,including direct harm to the country’s environmental management power and indirect harm to environmental interests.Finally,the subjective elements of non-fulfilment of environmental protection supervision duties mainly include intention and negligence.Accordingly,the two basic types of non-fulfilment of environmental protection supervision duties are deliberate failure to perform environmental protection supervision duties and negligent failure to perform environmental protection supervision duties.The former includes deliberate conduct of non-fulfilment of environmental protection supervision duties and deliberate conduct of the results of environmental pollution caused by non-fulfilment of environmental protection supervision duties.The latter includes acts of negligence leading to non-performance of environmental protection supervision duties and acts of negligence for the results of environmental pollution caused by non-fulfilment of environmental supervision duties.According to whether there is collusion,the behavior of deliberate failure to perform environmental protection supervision duties can be divided into the behavior of deliberate failure to perform environmental protection supervision duties with collusion and the behavior of deliberate failure to perform environmental protection supervision duties without collusion.For those who intentionally fail to perform the duty of environmental protection supervision and management with collusion,they can be convicted and punished according to the joint principal offender or assistant offender of relevant environmental crimes.For those who intentionally fail to perform the duty of environmental protection supervision and management without collusion,because there is no intention of joint crime between the state personnel and the supervised,they can not be punished as accomplices of related environmental crimes.However,whether there is collusion in the intentional failure to perform environmental protection supervision duties or not,as long as the result of the behavior of polluting the environment by the supervised person is the same as the result element of the crime of abuse of power,then the state personnel will constitute the crime of abuse of power.The behavior of negligently failing to perform environmental protection supervision duties is mainly convicted and punished according to the crime of dereliction of duty in environmental supervision stipulated in article 408 of the criminal law of the people’s Republic of China.However,the negligent failure to perform environmental protection supervision duties only leads to the behavior of polluting the environment,which does not meet the result requirements of the crime of dereliction of duty in environmental supervision,and cannot be punished and convicted according to the crime of dereliction of duty in environmental supervision.If the behavior of negligently failing to perform environmental protection supervision duties and causing serious environmental pollution resulting in heavy losses of public and private property and casualties is convicted and punished according to the crime of dereliction of duty in environmental supervision,it will violate the principle of balance between crime and punishment and cause loopholes in punishment.Based on this,we should improve the legislation of the crime of dereliction of duty in environmental supervision.First of all,according to the different results caused by the behavior of not performing environmental protection supervision duties,the crime of dereliction of duty in environmental supervision is divided into basic crime and aggravated crime.Secondly,according to the different results caused by the basic offense and the aggravated offense of the crime of dereliction of duty in environmental supervision,the sentence term of the crime of dereliction of duty in environmental supervision is set by grades.So as to solve the problem of criminal liability for negligent failure to perform environmental protection supervision duties.