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Environmental Criminal Law in China: A Critical Analysis

Environmental Criminal Law in China: A Critical Analysis. Submitted by: Prof. Dr. Michael G. Faure LL.M. METRO, University of Maastricht PO Box 616, 6200 MD Maastricht, the Netherlands RILE, Erasmus University Rotterdam P.O. Box 1738, 3000 DR Rotterdam, the Netherlands and Hao Zhang

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Environmental Criminal Law in China: A Critical Analysis

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  1. Environmental Criminal Law in China: A Critical Analysis Submitted by: Prof. Dr. Michael G. Faure LL.M. METRO, University of Maastricht PO Box 616, 6200 MD Maastricht, the Netherlands RILE, Erasmus University Rotterdam P.O. Box 1738, 3000 DR Rotterdam, the Netherlands and Hao Zhang Graduate School, Beijing Forestry University 637 Postbox, Haidian District, Beijing, P.R.China, 100083 and Prof. Ping Xu Law Department, Beijing Forestry UniversityNo.35 East Tsinghua Road, Haidian District, Beijing, P.R.China, 100083

  2. Structure • Introduction • Environmental Criminal Law in China • Critical Analysis • Suggestions for reform • Concluding remarks

  3. Introduction • Goal is to look at material environmental criminal law in China • Using theoretical literature on optimal models of environmental criminal law • In addition enforcement important as well • First analyze whether structure of criminal law can help in providing effective protection

  4. Environmental Criminal Law in China 2.1 Main structure and sources • Penal Code of 1997 • Chapter VI: crimes of obstructing the administration of public order • Section 6: impairing the protection of environment and resources • Penal Code: 15 articles with 25 charges • In addition: subsidiary environmental criminal law (administrative regulations) • Administrative sanctioning

  5. Environmental Criminal Law in China 2.2 Categories of environmental crimes in Penal Code 1997 2.2.1 Behavioral crimes • Behavior is penalized e.g. smuggling rare animals or rare plants 2.2.2 Consequential crimes • Consequence needs to be proven • Example: article 338 Penal Code:

  6. Environmental Criminal Law in China “Whoever, in violation of the regulations of the State, discharges, dumps or treats radioactive waste, waste containing pathogen of infectious diseases, toxic substances or other hazardous waste on the land or in the water bodies or the atmosphere, thus causing a major environmental pollution accident which leads to the serious consequences of heavy losses of public or private property or human casualties, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; if the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.” • Problems: • Administrative dependence • Consequence • Low sanction

  7. Environmental Criminal Law in China 2.2.3 Circumstantial crimes 2.2.4 Mens rea • Not very clear in legal doctrine • Depends on formulation (not in legislation) • Many require proof of intent

  8. Environmental Criminal Law in China 2.3 Subsidiary environmental criminal law 2.4 Administrative sanctions 2.4.1 Various sanctions: • give a warning; • impose a fine; • confiscation of illegal gains; • order to close a polluting plant or stop production; • revoke a permit or license; • impose other types of administrative penalties that the state environmental protection laws and regulations provide for.

  9. Environmental Criminal Law in China 2.4.2 Example: • Law on the prevention and control of water pollution 2008: • Whoever, commits any of the following acts, shall be ordered to stop illegal activities, to take control measures to eliminate pollution and/or to be fined by the environmental protection department of the local people's governments above the county level; if the control measures are not taken within the time limit, the environmental protection authorities can designate other entity which is capable of taking control measures and the costs shall be the commitment of the offender:

  10. Environmental Criminal Law in China • discharge oil, acid and/or lye into water body; • discharge or dump into any water body or directly bury deadly toxic soluble slag, tailings, etc. containing such substances as mercury, cadmium, arsenic, chromium, lead, cyanide and yellow phosphorus; • wash and clean in any water body any vehicles or containers which have been used for storing oil or toxic pollutant; • discharge or dump industry waste residues, urban refuse or other wastes into any water body or to pile or deposit solid wastes and other pollutants on beaches and bank slopes below the highest water level of rivers, lakes, canals, irrigation channels and reservoirs; • discharge or dump radioactive solid wastes or waste water containing any high-or medium-level radioactive substances into any water body; • in violation of relevant regulations or standards, to discharge waste water and/or hot water containing low-level radioactive material or waste water containing pathogens; • use of seepage wells, seepage pits, crevices or caves for discharging or dumping of waste water containing toxic pollutants, pathogens or other wastes; • use of non-anti-seepage measures, ponds for transporting or storing of waste water containing toxic pollutants, pathogens or other waste.A fine above 10,000 RMB and no more than 100,000 RMB shall be imposed for any of the situations in paragraph 3 and/or paragraph 6; a fine above 20,000 RMB and no more than 200,000 RMB shall be imposed for any of the situations in paragraph 1, paragraph 4 and/or paragraph 8; for any of the situations in paragraph 2, paragraph 5 and/or paragraph 7, a fine above 50,000 RMB and no more than 500,000 RMB shall be applied.

  11. Critical analysis 3.1 Ideal provisions present? • Abstract endangerment crimes? • Non-respect of administrative duties • Administrative regulations and administrative sanctions • Problem: low sanctions • Concrete endangerment crimes • Punishing unlawful emissions • Only particular interests protected • Mostly pollution required • Autonomous crime • Not existent • Administrative dependence of environmental criminal law

  12. Critical analysis 3.2 Specific problems 3.2.1 Administrative dependence of environmental criminal law • “In contravention of the state law and regulations” • Combinations not always very clear 3.2.2 Consequential crimes • Result very hard to proof • E.g. article 338 Penal Code • Also criticized in legal doctrine

  13. Critical analysis 3.2.3 Intent • Not clearly regulated • Requirement causes problems

  14. Suggestions for reform 4.1 General • Provide more adequate protection to ecological interests • Sanctions should reflect importance of protected interest 4.2 Specific points • Increase sanctions for abstract endangerment crimes • In concrete endangerment crimes: • Provide more balanced protection to all ecological interests • Regulate unlawfulness concept • Regulate relationship with administrative law

  15. Suggestions for reform • Provide specific provision for serious endangerment of the environment • Do away with consequential crimes

  16. Concluding remarks • Today Chinese law protects more economic and other interests than ecological interests • Various provisions difficult to apply in practice • Administrative sanctions with low fines • Also in China: many proposals for reform to improve environmental criminal law • Next step: improve enforcement • This may hopefully lead to:

  17. Concluding remarks An effective environmental criminal law in China!

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