环境法益刑事保护的提前化研究

Research into the Advance Protection of Environmental Legal Interest through Criminal Law

环境法益刑事保护的提前化是刑法保护由个人法益向集合法益的转向,环境资源犯罪惩治既要摒弃我国《刑法修正案(八)》出台之前绝对人类法益保护的指向,也要警惕割裂地强调与人类法益完全无涉的自然法益纯粹论。构建环境法益保护的二元防范体系,要根据环境法益的集合法益特征,对人类法益与自然法益进行一体化保护,同时针对环境资源犯罪的特点充分运用累积犯理论解决对环境法益造成损害之临界点认定的难题,合理划定环境法益刑事保护提前化的界限。环境法益刑事保护提前化对行政执法与刑事司法衔接节点进行了实质性改变,有必要对该节点标准和取证方式进行适时明确和调整。环境法益刑事保护提前化行政执法与刑事司法衔接的节点标准,应当主要从行为发生地、行为对象数量、污染物含量、行为方式和防治污染成本以及生态恢复可能性和资源再生能力方面考察。在环境法益刑事保护提前化行政执法与刑事司法衔接的取证方式中,环境数据的测定是关键,司法者审查的重点应当是环境数据的取样检测和条件分析过程。

The advance protection of environmental legal interest through criminal law indicates that the protected object of criminal law is shifted from individual legal interest to collective legal interest. In punishing and controlling environmental resources-related crimes,we should abandon the orientation of protection of strictly human-involved legal interest prior to the adoption of Amendment VIII to Criminal Law and be vigilant against the view of purely natural legal interest which emphasizes the complete irrelevance to human legal interest. The establishment of dual-prevention system for protecting environmental legal interest shall be based on characteristics of environmental legal interest as the collective legal interest,providing integrated protection for human-related legal interest and natural legal interest,resolving the difficult question of identifying the critical point of damage to environmental legal interest by full utilization of the theory of cumulative offence on the basis of the characteristics of environmental resources-related crimes,and drawing a reasonable demarcation line for the advance protection of environmental legal interest through criminal law. The advance protection of environmental legal interest through criminal law has made substantial changes to the connecting point of administrative law enforcement and criminal justice,so it is necessary to make clear and adjust the standard for interconnecting point and methods of evidence collection in a timely manner. The standard for connecting point of administrative law enforcement and criminal justice regarding the advance protection of environmental legal interest through criminal law shall be mainly determined according to the following factors:the place where the behavior occurred,the quantity of objects of the criminal behavior,the content of pollutants,the way of behavior and the cost of pollution prevention and control as well as the possibility of ecological restoration and the ability of resource regeneration. Among methods of evidence collection,the measurement of environmental data is the key to accountability and the judiciary should focus the review on the process of the sample inspection and the conditional analysis of environmental data.