On The Guilt Of The Environmental Pollution Crime

In 2011,the Criminal Law Amendment(Ⅷ)(hereinafter referred to as "Amendment(VIII)")renamed the crime of major environmental pollution accident as the crime of polluting the environment,modified the crime and lowered the threshold of incrimination,and the research on the crime of polluting the environment gradually increased.Among them,the most controversial issue is the form of guilt for the crime of polluting the environment.The form of guilt plays an important role in both conviction and sentencing,and only by clarifying the form of guilt can we achieve effective management of environmental pollution crimes.However,because the current legislation does not provide a clear form of guilt for the crime of environmental pollution,resulting in judicial practice there are different forms of guilt,different sentences in the same case of disagreement.Even with the subsequent introduction of the Interpretation of Several Issues on the Application of Law in Handling Criminal Cases of Pollution of the Environment(hereinafter referred to as the Interpretation)and the Amendment(XI)to the Criminal Law(hereinafter referred to as the Amendment(XI)),there are still no clear provisions on the form of guilt for the crime of pollution of the environment.Therefore,it is necessary to analyze the intentional,negligence and mixed guilt that exist in the theoretical circles,unify the form of guilt of environmental pollution crimes,and provide clear standards for judicial judgment.In addition to the introduction,this thesis is divided into four parts.The first part introduces the practical differences and theoretical controversies on the guilt of environmental pollution crimes,analyzes the judicial status of environmental pollution crimes,understands the overall situation of environmental pollution crimes in the country after the implementation of the Amendment(VIII),provides statistics on the number of cases of environmental pollution crimes and the distribution of each province,summarizes the attitude of different judgments on the subjective guilt of this crime,and finds that The problem of inconsistent judicial determinations in practice,and the key elements that judges may refer to in judging the form of guilt are collated.Then,introduce the theoretical theories of intentional,negligence and mixed guilt,and introduce relevant cases to assist in the explanation.The second part is an examination of the relevant provisions on the form of guilt of environmental pollution crimes in foreign countries,including the dual guilt model legislation adopted by Germany,a typical representative of the civil law system,and the strict liability system of the common law system,which is based on the real situation in China and tries to provide conceptual and institutional reference for the form of guilt of environmental pollution crimes in China.The third part is the argument for advocating the intentional theory,firstly,the analysis concludes that the negligence theory lacks literary and scientific basis,and the mixed guilt theory does not implement the liability theory,both of which have inescapable loopholes.In contrast,the intentional theory can achieve more effective treatment of environmental pollution.The intentional theory is consistent with the basic principle of criminality and punishment,the need to punish a large number of common crimes in judicial practice,and the legislative tendency to change from pure anthropocentric legal interest theory to ecological anthropocentric legal interest theory.Therefore,under the premise of not changing the legislation at present,it is more appropriate to adopt the viewpoint of intentional said.The fourth part is the implementation of the intentional said in judicial practice,the intentional composition of the cognitive factor and the will factor are judged separately,the cognitive factor requires the actor to their pollution behavior and meaning,harm results,etc.should be clearly recognized,different criminal links of the subject need to achieve the degree of awareness can be different,the will factor should be held directly intentional pollution behavior and indirectly intentional pollution results.For the follow-up of the responsibility of environmental pollution crime,by trying to clarify the possibility of awareness of illegality is independent of intention and negligence of the elements of responsibility,and put forward the "two-step" judgment standard of whether to create doubts and then take measures to dispel doubts,to provide help for the responsibility of environmental pollution crime and the corresponding judicial judgment of guilt.