论统一生态环境法典中行刑衔接条款的设置

On the Setting of the Sentence Connection Clause in the Ecological and Environmental Code

十四届全国人大常委会将编纂生态环境法典列入“一类项目”,意味着我国开启了继民法典以来第二部以法典命名的法律编纂工作。基于环境法律体系化的政策要求、法律衔接统一化的法治需求、环境犯罪罪状填补精准化的实践需求,有必要在生态环境法典中设置行刑衔接条款。相比之下,形式转致模式和附属刑法模式都存在较大缺陷,实质转致模式更符合我国的立法传统与统一法典化趋势。在实质转致模式下,应当注重规范保护目的的重合衔接、构成要件的从属衔接、追责的回转衔接,以恪守刑法的谦抑性。

The Standing Committee of the 14th National People's Congress included the compilation of the ecological and environmental code in the"first-class project",which means that after the Civil Code was promulgated,China has started the second legal compilation work named after the code.Based on the policy requirements of the systematization of environmental laws,the need for the rule of law to be unified and unification in law,and the practical needs of accurate filling of environmental crimes,it is necessary to set up a sentence on the connection between execution and execution in the ecological and environmental code.In contrast,there are great defects in both the formal transfer model and the subsidiary criminal law model,and the substantive transfer model is more in line with China's legislative tradition and the trend of uniform codification.In the mode of substantive transfer,attention should be paid to the overlapping connection of the purpose of normative protection,the subordinate connection of the constituent elements,and the reversal of accountability,so as to abide by the modesty of the criminal law.