环境犯罪的惩治与传统刑事归责原则的创新

由于环境犯罪侵害的特异性和主观认定上的困难,传统刑事归责原则在环境犯罪惩治中面临着困境.对此,西方各国刑法理论先后提出了相对严格责任、绝对严格责任、新新过失论等理论.基于环境犯罪的特殊性和刑事责任的价值与功能,对环境犯罪应采取一种相对严格责任的归责原则,即通过诉讼程序上的举证责任的倒置来减轻犯罪指控的难度,直接根据污染事实推定被告对危害后果的发生是有主观过错的,但同时允许被告反证自己主观没有过错.

Punishment of environmental crime:innovation of the traditional crimined principle of imputation

The traditional crimined principle of imputation is not well suited for punishment of environmental crimes because of the unique endangerment and the difficulty of subjective recognition. Three recent innovations (the relatively strict responsibility, the absolutely strict responsibility, and the new new negligence theory) that have been proposed and practiced in western countries are presented and reviewed. Due to the particularity of environmental crimes and the value/function of the criminal responsibility, the relatively strict responsibility approach, which alleviates the difficulty of criminal allegation with the inversion of the burden of proof and placing the subjective fault directly on dangerous consequences of the pollution after considering the defendant's special case, was recommended.