污染环境罪实证研究——以中国裁判文书网198份污染环境罪裁判文书为样本

An Empirical Study of the Crime of Environmental Pollution:Samples from 198 Cases of Environmental Pollution

随着《刑法修正案(八)》的生效和相关司法解释的出台,污染环境刑事案件数量迅速增长。该罪多由两人以上实施,而法院对该罪是否存在共同犯罪有争议;污染环境罪最为常见的行为类型是非法排放、倾倒生产废水,且大量构成犯罪的生产经营活动缺乏工商、环保等部门的有效监管。司法审判中,存在鉴定机构多头混乱、鉴定程序不规范等问题,需要建立与完善环境损害鉴定制度;对该罪主观方面的争议也需要厘清;对"严重污染环境"认定标准的具体适用还需要进一步明确。在刑罚设置上,需要对自由刑的幅度进行一定程度的扩张,罚金的适用也应划分幅度,由法官根据具体情况在相应幅度内进行自由裁量。

With the criminal law amendment and the judic number of the crime of environmental pollution has increased mitted by more than two people,yet controversy exists as to of wastewater is most frequently seen in the crime~ however, ial interpretation entering into force, the rapidly. In practice, the crime is often corn- joint offense. Illegal discharge and pouring effective supervision from industrial, corn- mercial,and environmental protection departments is often missing. In judicial adjudication, problems of confusing evaluation institutions and evaluation procedures have occurred frequently. Therefore, it is nec- essary to establish and perfect the evaluation system of environmental damage, clarify the disputes of crime subject,and definite the standard of severe environmental pollution. In penalty settings,the degree of freedom penalty might be extended, and the fines should also be divided into different rates, made by the judges within certain degree in accordance with specific conditions.