对环境刑法的象征性标签的质疑——与刘艳红教授等商榷

Queries on the Label of Symbolic Legislation in Environmental Criminal Law——A Discussion with Scholars including Professor LIU Yanhong

近年来环境刑事立法被视为象征性立法的典范。尽管有学者对我国象征性立法的批判进行了反批判,但他们并未站在同一个层面来审视象征性概念的内涵和外延,甚至变相转移了批判者的真实目的。产生象征性错觉的主要原因在于人们通过现代刑法应对风险时所普遍持有的纯粹法律工具主义的态度。无论从司法实践的效果还是立法层面的推测来看,环境刑法都不符合象征性的标签。"象征性立法"标签的错位套用,不但会造成环境刑法公共认同的缺失、限制环境犯罪的治理,而且会加深古典刑法与现代刑法之间的矛盾。我们需要正视环境法益保护范围扩大的现实需求,秉持生态中心的法益观。

Environmental criminal legislation has been regarded as a model of symbolic legislation in recent years. Although some scholars have launched counter-criticism of the criticism of symbolic legislation in China, they did not examine the connotation and extension of the concept of "symbolic" on the same level, and even changed the real purpose of the critics. The main reason for the symbolic illusion is the widely-held attitude of pure legal instrumentalism when people deal with risks by modern criminal law. Environmental criminal law cannot be labeled as "symbolic", with regards to the effect of judicial practice and the speculation of the legislation purpose. The dislocated label of "symbolic legislation" could lead to the lack of consistent recognitions on environmental criminal law, restrict the control of environmental crime, and deepen the contradiction between classical criminal law and modern criminal law. Therefore, the real needs of expanding environmental legal goods ought to be considered and legal goods of eco-centrism is to be upheld.