Study On The Subjective Crime Of Environmental Pollution

In the period of serious environmental pollution accident crime,the crime is in a marginal position,and there are few arguments about its form of crime,and fault is the general theory of this crime.Subsequently,the Eighth Amendment to the Criminal Law amended the basic charges of the crime,expanded the environmental elements,widened the scope of pollutants,and reduced the requirements for the result of the crime.Since then,the debate about the crime of environmental pollution began.Since then,in order to improve the utilization rate of environmental pollution crime and weave a dense criminal law net,the judicial department has issued a number of judicial interpretations to clarify how to apply this crime.The number of environmental pollution cases is gradually increasing,the intensity of environmental protection in China is unprecedented,and the soft constraint of environmental protection has been fundamentally reversed.However,through the empirical analysis of the overall situation of environmental pollution cases and specific cases,it is not difficult to find that there are different attitudes towards the determination of the crime in judicial practice,so that there are self-talk and different sentences in the same case.There are three main viewpoints of "intentional theory","negligence theory" and "mixed theory" in the theoretical circle.The crime of environmental pollution is a public nuisance crime,and environmental protection is a worldwide subject.Therefore,it is necessary to investigate the environmental criminal law outside the country and explore the experience that can be used for reference.Through the study of the environmental criminal legislation in the representative countries of the Common law system and the civil law system,we can find that the former lacks written codes and mostly punish crimes by case law,and its requirements for proof of the subjective aspect of environmental pollution crime are relatively low.In order to achieve the purpose of prosecuting environmental crimes,the judge will make flexible interpretation of the enactment law,and interpret some crimes requiring intention in a narrow sense so that they actually become strict liability crimes.The latter pay more attention to formal rationality,usually in the legislation to clarify the form of the crime and assign different severity of legal punishment for different crimes.The provisions are clear,logical,worthy of learning.The superiority of "intentional theory" over other theories is very obvious.In all kinds of criminal law interpretation methods,the textual interpretation is the basis,and "intentional theory" is just the inevitable result of sticking to the textual interpretation,identifying negligence is not in line with the basic principles of criminal law.In addition,the "intentional theory" accords with the concept of liability doctrine,and its legal punishment range can be completely in the same chapter of other environmental crimes,so as to maintain the balance of crime and punishment in the whole environmental crime system.At the same time,"intentional statement" can improve the prosecution rate,relying on the theory of joint crime "partial implementation of full responsibility",can reduce the difficulty of judicial practice staff to prove,improve the crime prosecution rate."Intentional theory" also follows the principle of modesty,and combined with other department laws and environmental crimes,it can cover all environmental crimes without excessively broadening the criminal circle,and reflects the observance and respect of the principle of human rights protection.In order to carry out the view of "intentional theory" in judicial practice,judicial practitioners should adjust the concept of rule of law and adopt correct methodology to understand the connotation of intentional.After the promulgation of the Eighth Amendment to the Criminal Law,the legal interest of environmental pollution crime was changed to the environmental legal interest with independent value.As long as the perpetrator intentionally polluted the environment,he could be identified as an intentional crime.In terms of behavior structure,the crime of environmental pollution adopts the mode of co-existence of dangerous crime and actual harm crime.The distinction between dangerous crime and actual harm crime cannot be understood from the difference of charges,but should be based on the specific form of crime and specific analysis.Intentional content includes volition factor and cognition factor.The determination of the will factor should be based on the objective behavior of the parties concerned.If the doer has taken appropriate measures to prevent dangerous substances from entering the environment according to his business experience,it is not appropriate to determine the crime of environmental pollution.The factors of cognition include factual cognition and normative cognition.In the factual aspect,the actor should be aware of the result that his behavior may cause pollution to the whole ecosystem.In the normative aspect,the actor should be aware of the result that his behavior may cause pollution to the whole ecosystem.In terms of the comparison of similar charges,the crime of environmental pollution is the same as the crime of releasing dangerous substances,so we should pay attention to the difference of protected interests in distinguishing the two crimes,and emphasize the difference between indirect intention and credulity and negligence in distinguishing the crime of causing the accident with dangerous substances.