环境行政执法与刑事司法衔接原则的反思及其重构

Reflections on the Principles of Convergence between Environmental Administrative Law Enforcement and Criminal Justice and Its Reconstruction

环境行政执法与刑事司法衔接应当以何项原则为指引,是环境行政执法与刑事司法衔接机制建设必须解决的前提性问题,也是目前环境行政执法与刑事司法衔接机制理论研究的重点难点问题。考察当前研究成果,学界对上述问题的回应存在"刑事优先"原则说、"行政优先"原则说、"刑事相对优先"原则说之论争。但以上观点均有不足,难以为环境行政执法与刑事司法衔接机制的顶层制度设计提供理论支撑,实践中也难以有效解决环境行政执法中普遍存在的"有案不移、有案难移、以罚代刑"问题。从实定法依据、价值功能、现实绩效视角看,环境行政执法与刑事司法衔接机制建设应当坚持"同步协调"原则,即环保部门一旦发现涉嫌环境犯罪的行为或线索,应当先立案、先调查、先行政强制与先行政处罚,案件移送后不停止调查、行政强制与行政处罚。坚持"同步协调"原则的理由在于:一是该原则不违反现行法律法规的强制性规定;二是有助于充分发挥环境行政处罚与刑事处罚的价值功能;三是可有效解决环境行政执法中的"有案不移、有案难移、以罚代刑"难题,实现环境行政执法与刑事司法的无缝对接。

The principle of environmental administrative law enforcement and criminal justice should be guided by the principle, which is the premise that must be solved in the construction of environmental administrative law enforcement and criminal justice connection mechanism. It is also the key difficulty in the theoretical research of environmental administrative law enforcement and criminal justice connection mechanism problem. Investigating the current research results, the academic community's response to the above-mentioned questions has the "criminal priority" principle, the "administrative priority" principle, and the "criminal relative priority" principle. However, the above viewpoints are insufficient, and it is difficult to provide theoretical support for the design of the top-level system of environmental administrative law enforcement and criminal justice linkage mechanism. In practice, it is also difficult to effectively solve the problem of "no case transfer, difficult case transfer and substituting fines for criminal punishment", that is common in environmental ad-ministrative law enforcement. From the perspective of actual law basis, value function, and realistic performance , the construction of environmental administrative law enforcement and criminal justice convergence mechanism should adhere to the principle of "synchronous coordination". that is to say that once the environmental protection department discovers the behavior or clues of suspected environmental crimes;it should first file a case, first investigate, first administrative compulsory enforcement and first administrative punishment, and after the case is transferred, the investigation, administrative compulsory enforcement and administrative punishment should not be stopped. The reasons for adhering to the principle of "synchronous coordination" are as follows: First, the principle does not violate the mandatory provisions of the current laws and regulations;second, it helps to give full play to the value function of environmental administrative punishment and criminal punishment;third, it can effectively solve environmental administrative law enforcement. The problem of "no case transfer, difficult case transfer and substituting fines for criminal punishment", and the seamless connection between environmental administrative law enforcement and criminal justice is realized.