Environmental issues, which exist in multiple fields of society and is not a single issue any more, are associated with national society and social order. The publics should face with these serious issues together. In the process of treatment of envir... Environmental issues, which exist in multiple fields of society and is not a single issue any more, are associated with national society and social order. The publics should face with these serious issues together. In the process of treatment of environmental pollution, criminal law of environment plays an important role as one of solutions for treatment of environmental pollution. In china, environmental pollution began to be systematically treated with in the 1970s. It was the first time in 1979 that the contents about environmental crimes occurred in criminal law. In 1997, National People's Congress amended criminal law and arranged the contents on environmental crimes into crimes on damaging environmental resources protection which are stipulated in criminal law 6:6. On the other hand, some contents in the environmental administrative law and judicial interpretation have involved the contents on environmental crimes. The centralized legislation system with Chinese characteristics has been established with penal code put first and environmental administrative law and judicial interpretation used as supplementaries. Treatment of environmental pollution formed with the development of economy in Korea has started in the 1960s. In the 1980s, legislation system, which was used to strike environmental crimes, has been established with environmental administrative law put first and special criminal law used as auxiliary mean. However, we are suspecting if the stipulation of criminal law of environment in China and Korea conform to requirements of criminal law in terms of theory of criminal law. For example, in order to strike environmental crimes of legal persons, penalty provisions have been made in China and Korea according to principle of violating responsibility. I agree that the basic principle and theory (principle of legally prescribed punishment) of criminal law shouldn’t be neglected, though the aim is to deal with the issues on environmental pollution. If we gave up the basic principle, criminal law of environment would have been national violence. Since modern times, principle of legally prescribed punishment has been regarded as the criminal law basis of protection of human rights and justice and fairness. According to the ideas above, the issues on criminal law of environment were discussed in the perspective of the comparison between China and Korea in this . The system and characteristics of criminal law of environment from China and Korea were investigated first in this . The specific solutions for improvement were developed according to the existing issues on the basis of theory of criminal law. 1.the investigation of environmental criminal law in China In 1970s,due to the destruction of environment, China began to curb environment pollution. The National People`s Congress stipulated clauses about environment protection in constitutional code in February 1978.On September 3rd,the Standing Committee of the National People`s Congress enacted the Environmental Protection Act. Contents about environment have been mentioned in the Criminal Law, But clauses about environmental crime were not explicitly stipulated. Criminal Law 1997 specified details about environmental crime. Chapter VI Section 6 Crimes of Impairing the Protection of Environment and Resources, Chapter III Section 2 Crimes of Smuggling and Chapter IX Crimes of Dereliction of Duty concentrated reflection this great change. Besides, environmental administrative regulations and judicial interpretations such as the Law about Prevention and Treatment of Air Pollution and Water Pollution Prevention and Control Law also have clauses about environmental criminal .Now legislation system on environmental criminal law has 3 main characteristics. First, the environmental right has not been validated yet. Second, the administrative subordination of most environmental criminal laws are relative. Clauses with absolute administrative subordination are few. Third, the Criminal Law affirms the ability of corporation crime against environment. 2.the investigation of environmental criminal law in South Korea The initial administrative criminal law in South Korea is Prevention and Cure Act in Public Hazards, enacted in November 1963.In 1977,this law was abolished as environmental law and marine pollution prevention law were enacted at the same time. In 1980,the environmental right was explicitly stipulated in the eighth revision of the Constitution. Since 1990,environmental law was abolished while a series of specific administrative regulations like Atmospheric Environmental Protection Act and Coordination of Environmental Disputes Law were legislated. These laws specified the contents of environmental criminals.On the other hand,in order to prevent fatal polluting environmental accident,South Korea aggravated punishment of violating specific environmental administrative regulations and enacted Special Measures to Increase the Punishment of Environmental Crime. This law was renamed Law on the Attack of Environmental Crime and the Heavier Punishment. Till then,a distributed legislation system including special criminal law and specific environmental administrative regulations coexisted forms South Korea`s legislation system on environmental criminal law. The legislation system on environmental criminal law in operation has these features. First, environmental right is validated as fundamental right. Second, the administrative subordination of most environmental criminal laws are absolute. Clauses with relative administrative subordination are few. Third, in the aspect of protecting the legal interest, the environmental criminal law emphasizes the protection of environment, citizens` life and health value. Fourth, causality presumption is stipulated in the special criminal law. Fifth, punishment system of corporate crime has been built. 3.Trouble spots and improvement scheme of China and South Korea`s environmental criminal laws I pointed out the trouble spots of China and South Korea`s environmental criminal laws and provided and improvement scheme. First, China `s environmental criminal law has these trouble spots: equivocal and obscure clauses such as “in violation of State regulations”or “circumstances that number is large”.What`s more, many judicial interpretations are out of range. even take the place of the law. This situation not only infringes legislative power, but also violates the legalism. On the other hand, in South Korea`s environmental criminal law, the relevance of legal interest of the criminal law the absolutely administrative subordination is hard to firm.The causality presumption is against the principle of accountability and complementary jurisdiction. To solve these problems, I would like to provide such an improvement scheme: first, according to the legalism, the inconformity in China`s environmental criminal law and the violation of judicial interpretation in legislation should be improved by sturdy lawmaking and abolishing judicial interpretation gradatim. Second, criminal law including equivocal and obscure clauses should be amended. Equivocal judicial interpretation should be disposed by abolishing of interpretation and improvement of legal approach. Third, according to principle of supplement, situations with absolute subordination should be convert to administrative penalty. Fourth, according to obiligation principle and innocence presumption principle, clauses about causality presumption should be abolished. Fifth, China`s environmental protection system should be rebuild by basing on environment right. ，韩语论文范文，韩语论文网站 |
