Characteristics of environmental pollution crime

Article 338 of the Criminal Law of People's Republic of China (PRC) stipulates the crime of environmental pollution: "Whoever, in violation of state regulations, discharges, dumps or disposes of radioactive waste, waste containing infectious disease pathogens, toxic substances or other harmful substances, which seriously pollutes the environment, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or only be fined; If the consequences are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and fined. " The crime of environmental pollution has the following characteristics: First, it is professional. The crime of environmental pollution is highly professional and may involve environmental science, chemistry, physics, biology and other fields, and it is highly technical. Such as common water pollution and air pollution, in order to determine the harmful consequences, it is necessary to carry out professional testing on water pollution components and air pollutants. Second, there are strict regulations on sampling, transportation and handover of contaminated samples. 1, water samples of various water qualities will change to varying degrees in the process from collection to analysis, making the samples for analysis no longer samples for sampling. In order to minimize this change, samples must be protected during sampling. 2. Causes of water sample changes (1) Biological effects: The metabolism of bacteria, algae and other organisms will consume some components in water samples, produce some new components, and change the properties of some components. Biological effects will affect the content and concentration of some items to be detected in the sample, such as dissolved oxygen, carbon dioxide, nitrogen-containing compounds, phosphorus and silicon. (2) Chemical action: Chemical reactions may occur between components of water samples, thus changing the content and properties of some components. For example, dissolved oxygen or oxygen in the air can oxidize ferrous, sulfide and so on; The polymer may depolymerize; Monomer compounds may also polymerize. Lawyers should also understand these basic professional knowledge. Defense lawyers should not be afraid of hard work, go to the crime scene in person, fully grasp the first-hand materials, be targeted, find out the real situation of sewage discharge, and defend in a targeted manner. Three, administrative evidence into criminal evidence, environmental pollution crimes by the competent administrative department of environmental protection for investigation, that suspected crimes transferred to the public security for investigation. This involves the transformation of administrative evidence into criminal evidence, and environmental pollution cases are transferred from environmental protection administrative departments to public security for investigation. The transformation from administrative evidence to criminal evidence is the key to the trial. Paragraph 2 of Article 54 of the Criminal Procedure Law stipulates that evidence materials such as physical evidence, documentary evidence, audio-visual materials and electronic data collected by administrative organs in the process of administrative law enforcement and case investigation can be used as evidence in criminal proceedings. This is the legal basis for the transformation of administrative evidence into criminal evidence, and it is limited to these four kinds of objective evidence. Other evidence cannot be used as criminal evidence. Paragraph 1 of Article 65 of the Interpretation of the Criminal Procedure Law stipulates that evidence materials such as physical evidence, documentary evidence, audio-visual materials and electronic data collected by administrative organs in the process of administrative law enforcement and case investigation can be used as evidence in criminal proceedings; After verification by the court, if the collection procedure complies with the provisions of relevant laws and administrative regulations, it can be used as the basis for finalizing the case. It is effective to put the defense direction in public security investigation and prosecution by procuratorate. Looking up the case information disclosure network of the people's procuratorate, in recent years, there are nearly a thousand cases of non-prosecution of environmental pollution crimes, which is far better than the court's decision. Fourth, the identification of environmental pollution crime is very professional. In accordance with the provisions of the Criminal Procedure Law, it is necessary to strictly review Article 14 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Environmental Pollution. If it is difficult to determine the specific problems of environmental pollution involved in the case, it shall be determined according to the expert opinions issued by the judicial authentication institutions, or the reports issued by the institutions designated by the competent department of environmental protection and the public security department of the State Council, combined with other evidence. The signing opinions should be reviewed according to the requirements of Articles 84 to 87 of the Interpretation of Criminal Procedure Law, and clues can only be found after targeted identification. Five, the people's Procuratorate and conditional social welfare institutions may file a civil public interest lawsuit, requiring the defendant of environmental pollution crime to bear the environmental costs. Six, the crime of environmental pollution has the characteristics of civil punishment, civil execution and execution.