On the Role of Criminal Law in the Protection of Environment By Dr. Feng Ye and Dr. Dan Wei
Supreme People’s Procuratorate of P. R. China
In retrospect of the development of human history, it is not hard to see that the environment issue is always associated with the development of human society. Human beings are constantly exposed to the counter attacks of environment, as people have no far-sighted perspective upon its potential danger and its sustainable usage. Impairs to environment existed since ancient time, but people do not have a better understanding of the issue until the Industrial Revolution. Since the 1950s, with the rapid development of industry, steep increase of human population and unwise exploration of natural resources, the ecological balance has been broken and environmental pollution has become more and more serious.
Environmental pollution as a crime of public hazards is in general very similar to the crimes in the traditional criminal law. But explicit provisions of offenses of the public hazards are rarely seen in the criminal code of most countries. The criminal law in the traditional sense demonstrates its protection of environmental interests by paying more attention to the protection of private rights and interests (Life, Property). At present, many countries’ criminal law still follow this mode to counter the collective criminal conduct of public hazards. But there are still many countries who do not actively counter the new mode of public hazards with criminal law. Besides the fact that environmental pollution is not compulsorily subject to criminal rules because of its characteristics as a public hazards, other factors that affecting the legislation of environmental protection are, the conservative attitude towards its legislature; inadequate understanding of the significance of environmental protection; differed opinion on the unprotected legal interests. On the other hand, environmental pollution is less blamed or valued in traditional sense than life, public security, social order and property safeguarding. The core in the prevention of environmental pollution of criminal law lies in the prior warning and prevention rather than focusing on the actual damage. The key of the criminal law of environmental pollution should be oriented towards the potential damage offense. Hence, the criminal law of environmental pollution should be aimed at reinforcing and supporting the provisions of civil law and administrative management law, rather than punishing the conduct of actual damage. But the so-called “reinforcing and supporting” still exists conflicts in their significance, esp. in the application of environmental criminal law and environmental administrative law. E.g. the application of criminal punishment, should it take the upper conduct limit in the provisions of administrative law as its premise? For this will ensure a smoother coordination between the two laws and achieve the effectiveness of inducing evidence. Or should the application of criminal punishment be determined by the capacity of criminal judge under the mode of attached criminal law? So that criminal judge could refer to the provisions of the attached criminal law to provide a more specific explanation than that of the environmental administrative law. The constitutive requirements of environmental criminal law are more or less dependent upon the provisions of administrative law, esp. the policies of the administrative organizations.
It has been 20 years since Chinese Criminal Law has been playing a role in environmental protection. It can be divided into 3 phases:
First, the period of cross-application of Civil Law, Administrative Law and Criminal Law. According to the legal system for environmental management and control during this period, the law is in the first place to set the environmental quality criteria and waste discharge limit. For any conduct that violates the criteria or limit, it should be subject to administrative penalty, civil penalty or criminal penalty referring to the nature and consequence of the environmental crime. During this period, the environmental protection and control is more centered upon administrative measures, while the criminal law enforced upon the environmental protection is far from adequate. As the legislature for various environmental pollution crimes was inadequate, it blocked the enforcement of administrative measures taken for pollution prevention and environmental protection. But as China then was still in its starting phase for economic development, environmental pollution and other environmental crimes were not so serious. The criminal law on environmental crime therefore was rather dispersed, and mostly they were not stipulated for the purpose of environmental protection. So it was not a wholesome legal manifestation of protecting the ecological balance and ecological environment. The kinds of articles that stated the environmental crime explicitly or inexplicitly in the 1979 Criminal Code are: 1. In the Provisions of the Crimes of Endangering Public Security, Article 105 and 106, about “the other dangerous means of endangering public security” to sabotage river, water source, forest etc.. “The other dangerous means” as provided in the article, refers to such means as committing arson, causing an explosion and spreading poison. They imply the meaning of endangering public security through environmental pollution. In Article 114 about the Case Of Serious Accident Arising From Negligence: “any employee of a factory, mine, tree farm or any other enterprise or institutions disobeys management or violates rules and regulations or, if anyone forces employees to work under hazardous conditions in violation of rules, thereby causing an serious accident arising from negligence which seriously endangers environment.” In Article 115, “Whoever violates the regulations on the control of explosive, inflammable, radioactive, poisonous or corrosive materials and thereby causes a serious accident during the production, storage, transportation or use of those materials”. 2. In the Provisions of the Crimes of Disrupting the Order of the Socialist Economy, three crimes of impairing the protection of environment and resources are provided. Article 128, “Whoever, in violation of the provisions of the Forestry Law, illegally fells or destroys precious trees”, Article 129, “Whoever, in violation of the law or regulations on protection of aquatic resources, catches aquatic products on an area or during a season closed to fishing, or uses prohibited fishing gear or methods for the purpose”; and Article 130, “Whoever illegally catches or kills precious and endangered species of wildlife”. 3. In the Provisions of Crimes of Dereliction of Duty: Article 187, “Any functionary of a state organ who abuses his power or neglects his duty, thus causing serious environmental pollution and causing heavy losses to public money or property or the interests of the State and the people, shall be subjected to criminal punishment.
Second, the period of cross application of the Separate Criminal Law and the Attached Criminal Law. Before the revision of the Criminal Law, the Separate Law and the Attached Law are the only way of punishing the environmental crimes. They work as a means to remedy the actual reality of which the environmental criminal law falls behind the environmental crimes. They are supplementary to the inadequate understanding of the unique characteristics of the environmental crimes. And they are helpful for a comprehensive understanding of the distinct value of the environmental resources, esp. the independence of the environmental protection. For example, on Nov. 8, 1988, the National People’s Congress has enacted the “Supplementary Provisions of Punishing He Who Catches And Kills The State-Protected Precious And Endangered Species Of Wildlife” in which the conduct of illegally killing precious and endangered species of wildlife is stated as a crime independent from the crime of Illegally catching aquatic products and that of Illegally Hunting Wildlife as formerly provided in the Criminal Law. And in the Attached Criminal Law, the 1995 “Provisions on the Prevention of Air Pollution”, “Provisions on the Prevention of the Solid Waste Pollution” and the 1996 “Provisions on the Prevention of Water Pollution” have enacted 3 new charges accordingly: The Charge of Air Pollution; the Charge of Illegally Collecting, Storing and Using Solid Waste; and the Charge of Water Pollution. These provisions have been the first of its kind in our country’s environmental criminal law. But they are far from adequate in the actual application. As a new sphere of legislation, the legislation of environmental crime has been more and more significant. The legislation of punishing the environmental crime in our country has been gradually developing. And the involvement of criminal law in the environmental protection has become inevitable in the development of history.
Third, the period of the execution of the revised criminal code. Based upon the legislation experience and legal practice, by consulting other countries’ environmental criminal law legislature, and by considering the recommendations of many scholars regarding the issue of environmental criminal legislature, the Criminal Law issued on Mar. 14, 1997 provides the Crimes of Impairing the Protection of Environment and Resources in Section 6 separately. It has 9 articles with 14 charges, which are “the Charge of Major Environmental Pollution Accident”(Article 338); “The Charge of Illegally Using Imported Solid Waste as Raw Material”(Sentence 1 of Article 339); “The Charge of Illegally Importing Solid Waste as Raw Material” (Sentence 2 of Article 339); “The Charge of Illegally Catching Aquatic Products” (Article 340); “The Charge of Illegally Catching or Killing Precious and Endangered Species of Wildlife or Illegally Purchasing, Transporting Or Selling Such Species Of Wildlife As Well As The Products Thereof” (Sentence 1 of Article 341), “The Charge of Illegally Hunting Wildlife” (Sentence 2 of Article 341), “The Charge of Illegally Occupying Cultivated Land”(Article 342); “The Charge of Illegally Mining” (Sentence 1 of Article 343); “The Charge of Mining Mineral Resources in a Destructive Way” (Sentence 2 of Article 343); “The Charge of Illegally Felling or Destroying Precious Trees” (Article 344); “The Charge of Illegally Stealthily Felling Trees” (Sentence 2 of Article 345); “The Charge of Illegally Purchasing Trees, which he knows are felled stealthily or arbitrarily”(Sentence 3 of Article 345). Among these charges, four are revised from the 1979 Criminal Code, the others are all newly stipulated. Meanwhile, unit committing environmental crimes is provided in a separate article (Article 346)
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