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天博官方:ZHANG Mingkai: The Setting of Crime and Punishement Clauses Regarding the Ecological Environment Code

天博官方-04-07

Abstract: The view that “the Criminal Law is a better place to embrace environmental crimes within the law” is only a subjective judgment, which may not be consistent with the facts. Since the late Qing Dynasty, our code of the Criminal Law has presupposed multiple criminal legislation modes. The mode of single criminal codification is not formed by criminal legislation with the promulgation of the only Criminal Law, but has been formed by the facts that other laws hesitate to prescribe crime and punishment clauses within their codes. The ecological environment code should set crime and punishment clauses regarding environment crimes directly within the law. The crime and punishment clauses should be close to the rules of conduct and the provisions of administrative punishment; therefore, a decentralized setting mode should be adopted. The characteristic of administrative criminal law is to ensure the effectiveness of conduct rules by reinforcing them, so the crime and punishment clauses in the ecological environment code usually adopt the prescription of administrative crimes, but some provisions can also adopt the prescription of criminal crimes. The crime and punishment clauses should be based on the provisions of administrative punishment, and upgrade the violation of environmental crimes to be punishable in the criminal law by adding elements of unlawfulness and responsibility. When handling the relationship between administrative punishment and criminal punishment, the emphasis should be placed on preventing the replacement of administrative punishment with criminal punishment. As to the circumstance that the offender actively fulfills the “responsibility of restoring ecological environment” which is stipulated in the Civil Law, the ecological environment code shall prescribe it as the cause of remission of punishment for environmental crimes. The setting of crime and punishment clauses in the ecological environment code should focus on the necessity, clarity, rationality, and coordination, and no need to worry about the repeating and crossing with environmental crimes within the current Criminal Law.

Keyword: ecological environment code; accessory criminal law; crime and punishment clauses; multiple criminal legislation modes


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