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Research on the Application of Strict Liability in Criminal Law of Environment

Author: TangZuo
Tutor: LeiZuo
School: Central South University of Forestry Science and Technology
Course: Environment and Resources Protection Law
Keywords: Environmental Crime Strict Liability Presumption of Fault
CLC: D924.3
Type: Master's thesis
Year: 2010
Downloads: 70
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Abstract


Environmental crime brought by the modern society, attracting the popular attention of the worldwide. In order to control various crimes effectively, countries around the world choose the national criminal law one after another to protect the environment. Since the environmental crime has the character of professional, gradual, as well delitescent, these bring our judiciary department into the trouble to prove the doer’s subjective thought. As a result, some activities which damage the environment heavily escape from the punishment of criminal law. This is no doubt a big impact to the traditional theory of fault responsibility. To protect environment effectively, Britain and the U.S play a leading role, one hand they still insist the fault responsibility theory, on the other hand they try to give up proving the strict responsibility of the crime so that they can protect the public rights. However, the definition of severe responsibility between Britain scholar and the U.S scholar is not so agreed. This bring the bifurcation that whether should the strict responsibility exist in the environmental criminal. Some scholar in our country also against strict responsibility, they think strict responsibility disobey our criminal law’s basic rule. However, in the criminal activities, there are still large number of strict responsibility used. What’s more, it becomes better and better with the endless improvement. In the author’s opinion, there is no conflict between strict responsibility and fault responsibility. The inbeing of the strict responsibility is to conjecture the fault, transfer the onus probandi. Only when the actor can’t prove himself effectively, then he has to respond the law. On the basis of the scholar’s study, herein the author will discuss whether should the strict responsibility used in China, as well how to use. For this discussion, the author will start from the strict responsibility of Britain and the U.S, and base upon the actual situation of our country’s environmental criminal. At the beginning of the article, the author analyse the definition of strict responsibility, point out its essential, that is "fault conjecture and prove responsibility inversion". This is not for the litigation efficiency, just transfer the prove responsibility from the proceeding, allow the actor to defend. The reason of the advocacy is the important part of the strict responsibility, as well the embodiment of justice. Then the author enumerate some countries, such as England, American, French, Japan. The related rule for strict responsibility in the environmental criminal law provide us reference. As well author start from the basic theory of criminal law and our country’s situation, expounding the rationality to use the strict responsibility in our country’s environmental crime. At last, the author point out an new viewpoint-on the basis of insisting fault responsibility, take the strict responsibility as a complementarity, a development. To those crime which have specific relationship between act and result, such as damage resource, dispute environmental control, commonly use fault responsibility. To some special environmental crime, strict responsibility will be used, through the prove responsibility inversion to mitigate the accusation difficulty, directly presume the pollution brought by subjective. Meanwhile, the actor have the right to prove the pollution happened not for the subjective reason, just for some force majeure or other person’s reason. Also we should limit the condition and range of using strict responsibility to avoid abuse happening.

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CLC: > Political, legal > Legal > Chinese law > Criminal law > Sub-rule
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