| Preliminary protection of criminal law is one of the hot issues in the field of criminal law in my country in recent years.Environmental crime is the specific aspect of criminal law protection prepositioning legislation,and environmental pollution crime is the main revision content of environmental crime.After the "Criminal Law Amendment(VIII)",the intensive discussion of the crime of environmental pollution only lasted ten years.The promotion of the modernization of national governance has made environmental protection the focus of modern social governance.The preposition of criminal law protection is a major issue in the study of criminal law dogmatics,which directly involves fundamental issues such as the arrangement of criminal law values,and is related to the choice of environmental governance models in a risk society.The basic theoretical research on the crime of environmental pollution has gradually enriched it at the level of dogmatics,which affects the changes in the rules of the crime of environmental pollution at the judicial level to a certain extent.This is not only a theoretical extension of criminal law research in the crime of environmental pollution,but also a practical turn for criminal law to meet the needs of modern social functions.How the criminal law can fully loosen the prevention potential in environmental crime governance without breaking through the preliminaries of criminal law has important methodological significance.The prepositioning of criminal law protection for environmental pollution crimes is realistic and necessary.It is the need of modern criminal law to incorporate environmental legal interests into the scope of legal interest protection and carry out pre-criminal protection.However,it needs to be clearly pointed out that the prepositioning of criminal law protection for environmental pollution crimes is not completely free from the reconstruction of existing criminal law theories and systems.If the preposition of criminal law protection for environmental pollution crimes is not properly regulated,it may contain the hidden worries of excessive criminalization and the crisis of judicial arbitrariness,and may cause the risk of criminal law imbalance.Therefore,it is necessary to study the pre-protection of criminal law for environmental pollution crimes.This article intends to analyze the problems of the pre-protection of criminal law protection for environmental pollution crimes,dialectical disputes on the theory of pre-protection of criminal law for environmental pollution crimes,and explore the pre-protection of criminal law protection for environmental pollution crimes from the three levels of theory,legislation,and justice.Draw a blueprint for the rule of law that the protection of criminal law for environmental pollution crimes is pre-positioned.The first part of this paper is an overview of the pre-protection of criminal law for environmental pollution crimes.By sorting out the definition of the criminal law protection preposition in the current academic circles,the criminal law protection preposition is distinguished from the legal benefit protection preposition and the penalty punishment preposition.The relationship between the two is clarified by the substantive and formal characteristics of the preposition of legal interest protection and the preposition of criminal punishment.Further specify the prepositional expression of criminal law protection for environmental pollution crimes with the scope of crime,concept of legal interests,protection stage and legislative purpose.The second part of this paper attempts to interpret the actual basis of the protection of criminal law for environmental pollution crimes from three aspects:internal causes of criminal law,external causes of society and environmental reasons.Criminal law not only needs to deal with the situational changes of the external environment,but also needs to coordinate its own internal function transformation.The rise of the positive view of criminal law,the transformation of criminal law’s function and the need for active general prevention make the traditional criminal law turn to the modern criminal law that emphasizes safety and prevention,and become the internal cause of criminal law protection of environmental pollution crimes.The subjective spread of citizens’ anxiety and the objective weakening of informal social integration methods have become the social external reasons for the preposition of criminal law protection for environmental pollution crimes.The surge of environmental risks in modern society and the severe reality of environmental pollution crimes in recent years have become the environmental reasons for the preposition of criminal law protection for environmental pollution crimes.The third part of this paper is to show the tendency of criminal law protection for environmental pollution crimes.In the type of legal benefit protection preposition,the anthropocentric legal benefit view with human legal benefit as the core,the ecocentric legal benefit view with ecological legal benefit as the core,and the human and ecological legal benefit as the common protection legal benefit are derived from ecological ethics.The ecological humanism concept of legal interests.Among the types of pre-penalization,there are the punishment modes of specific dangerous offenders,cumulative offenders and abstract dangerous offenders.The preposition of legal interest protection is the normative essence of the preposition of criminal punishment,and the preposition of criminal punishment is the practice of the preposition of legal interest protection.Different views of legal interests as the normative basis for the performance of punishment methods are also completely different.By sorting out different views of legal benefits and punishment methods,and understanding the legislative performance and measures of environmental pollution crimes in my country,we can comprehensively view the process and dimension of criminal law protection for environmental pollution crimes.The fourth part of this paper is an analysis of the problems related to the preposition of criminal law protection for environmental pollution crimes.This part mainly focuses on the academic criticism of the crime of environmental pollution,namely the controversies of the crime of environmental pollution in three aspects:moderation in criminal law,instrumental criminal law and symbolic criminal law.The prepositioning of criminal law protection for environmental pollution crimes leads to the expansion of criminal circles and the reduction of criminal thresholds,which contradicts the modesty of criminal law.The symbolic criminal legislation that responds to public opinion makes the content of legal interests ambiguous and abstract.Criminal legislation that takes public opinion as a political requirement is a Questioning the resurgence of criminal law instrumentalism.By going back to different scholars and different legal systems to find different positions,from which to find and refine their own arguments.The fifth part of this paper is the normative path of the criminal law protection of environmental pollution crime.This paper affirms the theoretical significance and practical value of the pre-protection of criminal law for environmental pollution crimes,but also needs to face up to the non-standard aspects of criminal law protection for environmental pollution crimes.The protection of criminal law for environmental pollution crimes is pre-positioned.At the level of protection of legal interests,the scope of environmental legal interests is controlled by personal legal interests,and the protection level of environmental legal interests is grasped with the principle of major harm,so as to realize the static mutual succession between the level of legal interests and the scope of legal interests.At the level of punishment and punishment,it is important to consider legislation and judicial guilt.In terms of legislation,the constitutionality review is carried out through the principle of intake ratio and the functional rank judgment of adherence to the administrative subordination is used to confirm the legitimacy of legislation.Judicially,clarifying the applicable standards of proviso clauses in environmental pollution crimes and using harmful changes as the basis for substantive interpretation to achieve judicial modesty,and to achieve a dynamic balance between legislative expansion and judicial restriction. |
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