我国环境刑法行政从属性问题研究

On Administrative Subordination of Environmental Criminal Law in China

行政从属性是环境刑法重要特性之一,对这一特性之争议不仅关乎理论亦关乎司法实践。就目前而言,环境刑法这一行政从属特性不可被完全废除,因其在理论上根植于刑法之谦抑性。但现行从属模式给我国环境犯罪理论和实践造成的困境已凸显,在梳理现行模式所带来困境基础上,考察欧洲环境刑法改革历程可知,其分级惩罚的从属模式可为我国因应这一问题提供镜鉴。就我国而言,当扭转环境犯罪之法益观,迈向人类与生态并重法益观。在此基础上,短期而言可以解释论路径解决现行从属模式的难题,长远观之则应在立法上设置例外条款,允许在严重破坏环境危害人类生命健康法益情况下突破行政从属性依赖。

As administrative subordination is one of the important characteristics of environmental criminal law,the dispute over this characteristic is not only related to theory but also related to judicial practice. At present,the administrative subordination of environmental criminal law cannot be completely abolished,because it is theoretically rooted in the modest restraining of criminal law. However,the dilemma caused by the current subordination model to the theory and practice of environmental crime in China has been highlighted. This problem,on the basis of sorting out the dilemma caused by the current model and then investigating the reform process of Environmental criminal law in Europe,can be solved by the subordinate model of graded punishment. As far as China is concerned,the first step is to reverse the view of legal interests of environmental crimes and to enrich it with equal emphasis on human beings and ecology. On this basis,in the short term,we can use the theory of statutory interpretation to solve the problem of the current administrative subordination mode,while in the long term,we should set an exception clause in the legislation to allow the breakthrough of administrative subordination dependence in the case of serious damage to the environment and harm to human life and health benefits..