基于统计分析的污染环境罪刑罚适用研究
发布时间：2018-08-15 17:25
【摘要】：在污染环境罪确立之前，“我国环境污染犯罪的判例在刑事司法中极为少见，在绝大多数地方法院均呈现‘零判决’现象。”一方面显示出重大环境污染事故罪的“曲高和寡”，另一方面则表明我国在打击污染环境犯罪、保护环境法益方面，刑事手段可谓捉襟见肘。2011年5月1日起颁行的《刑法修正案（八）》对原重大环境污染事故罪的成罪条件进行修订，修订后实际上设立了污染环境罪。这一修订让刑法手段作为解决污染环境问题的手段成为可能。2013年6月19日起，《最高人民法院、最高人民检察院关于办理环境污染刑事案件适用法律若干问题的解释》施行，该《解释》明确了污染环境罪的入罪标准。自该《解释》颁行以来，各地涌现出大量污染环境罪判例。这一现象充分表明刑法手段已经成为解决污染环境问题的手段，刑法在对污染环境犯罪的治理上迈出了坚实的第一步。但该罪在适用过程中的表现、效果需要评估，不明晰之处需要明确，抵牾之处需要理顺，欠缺之处需要弥补。笔者认为，刑罚适用情况能较好地反映上述要点，故选取污染环境罪判例作为研究对象，对污染环境罪刑罚适用情况进行统计研究。 本文基于上述目的及研究思路，，对现阶段污染环境罪判例中自由刑、宣告缓刑制度、罚金刑等适用之具体表现、判定依据之犯罪情节进行统计，对于单位犯罪中的刑罚适用情况进行统计。 上述统计主要反映出以下特点：污染环境罪入罪数量大量增加、自由刑以三年以下有期徒刑为主、宣告缓刑及禁业刑适用比例较低、罚金刑数额较为集中、罚金刑的适用情况与自由刑的适用情况总体相当但并非完全对应、罚金刑的裁判依据之犯罪人违法获利情节存在认定不当的情形、单位犯罪中对于单位和直接责任人都判处了罚金、直接责任人的罚金数额大都远低于单位罚金数额等。 关于量刑工作的改进，本文重点提出三项建议：一、违反废物、废水登记制度、处理登记制度的行为应作为量刑情节。二、增加非监禁刑适用比例，用更恰当的、对社会造成最小负担的方式来实现刑罚的意义，同时避免弱化对犯罪人的刑事处罚。三、将污染环境所获利益通过没收违法所得制度解决，而非作为罚金刑的量刑情节。
[Abstract]:Before the establishment of environmental pollution crime, "the precedent of environmental pollution crime in our country is very rare in criminal justice, and the phenomenon of 'zero judgment' appears in most local courts." On the one hand, it shows that the crime of major environmental pollution accidents is "high and low"; on the other hand, it shows that our country is fighting environmental pollution crimes and protecting the interests of environmental law. The criminal means can be described as limited. The Criminal Law Amendment (8) issued on May 1, 2011 revised the crime conditions of the original major environmental pollution accident crime, and actually established the pollution environment crime after the revision. This amendment makes possible the use of criminal law as a means to solve the problem of environmental pollution. From June 19, 2013, the interpretation of the Supreme people's Court and the Supreme people's Procuratorate on some issues applicable to the law in handling criminal cases of environmental pollution was put into effect. The explanation clarifies the standard of incrimination for the crime of polluting the environment. Since the enactment of the interpretation, a large number of environmental pollution cases have emerged. This phenomenon fully shows that the means of criminal law has become the means to solve the problem of environmental pollution, and the criminal law has taken a solid first step in the treatment of the crime of polluting the environment. However, the performance of the crime in the process of application, the effect needs to be evaluated, the lack of clarity needs to be clear, the contradiction needs to be straightened out, and the deficiency needs to be remedied. The author believes that the application of penalty can better reflect the above points, so the case of environmental pollution crime is selected as the research object, and the application of penalty for environmental pollution crime is studied statistically. Based on the above purpose and research ideas, this paper makes statistics on the application of free punishment, proclamation of probation system, fine penalty and so on in the case of environmental pollution crime at the present stage, and makes statistics on the circumstances of the crime on which it is based. Statistics on the application of penalties in unit crime. The above statistics mainly reflect the following characteristics: the number of convictions for environmental pollution crimes has increased substantially, the majority of free sentences are fixed-term imprisonment of not more than three years, the proportion of probation and proscription sentences is relatively low, and the amount of fines is relatively concentrated. The application of the fine is equal to the application of the free punishment on the whole, but it is not completely corresponding, and the circumstances on which the criminal on whom the fine is based are found to be improper in the circumstances of making profits in violation of the law, In the unit crime, both the unit and the direct responsible person have been fined, and the amount of the fine of the direct responsible person is much lower than the amount of the unit fine and so on. As to the improvement of sentencing, this paper puts forward three suggestions: first, the behavior of violating the registration system of waste and wastewater and treating the registration system should be taken as the circumstances of sentencing. Second, increase the applicable proportion of non-custodial punishment, and realize the meaning of punishment in a more appropriate way that causes the least burden to the society, and avoid weakening the criminal punishment of the offender at the same time. Third, the interests gained by polluting the environment should be solved through the confiscation of illegal income system, not as the sentencing circumstances of the fine.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.36
本文编号：2184904
[Abstract]:Before the establishment of environmental pollution crime, "the precedent of environmental pollution crime in our country is very rare in criminal justice, and the phenomenon of 'zero judgment' appears in most local courts." On the one hand, it shows that the crime of major environmental pollution accidents is "high and low"; on the other hand, it shows that our country is fighting environmental pollution crimes and protecting the interests of environmental law. The criminal means can be described as limited. The Criminal Law Amendment (8) issued on May 1, 2011 revised the crime conditions of the original major environmental pollution accident crime, and actually established the pollution environment crime after the revision. This amendment makes possible the use of criminal law as a means to solve the problem of environmental pollution. From June 19, 2013, the interpretation of the Supreme people's Court and the Supreme people's Procuratorate on some issues applicable to the law in handling criminal cases of environmental pollution was put into effect. The explanation clarifies the standard of incrimination for the crime of polluting the environment. Since the enactment of the interpretation, a large number of environmental pollution cases have emerged. This phenomenon fully shows that the means of criminal law has become the means to solve the problem of environmental pollution, and the criminal law has taken a solid first step in the treatment of the crime of polluting the environment. However, the performance of the crime in the process of application, the effect needs to be evaluated, the lack of clarity needs to be clear, the contradiction needs to be straightened out, and the deficiency needs to be remedied. The author believes that the application of penalty can better reflect the above points, so the case of environmental pollution crime is selected as the research object, and the application of penalty for environmental pollution crime is studied statistically. Based on the above purpose and research ideas, this paper makes statistics on the application of free punishment, proclamation of probation system, fine penalty and so on in the case of environmental pollution crime at the present stage, and makes statistics on the circumstances of the crime on which it is based. Statistics on the application of penalties in unit crime. The above statistics mainly reflect the following characteristics: the number of convictions for environmental pollution crimes has increased substantially, the majority of free sentences are fixed-term imprisonment of not more than three years, the proportion of probation and proscription sentences is relatively low, and the amount of fines is relatively concentrated. The application of the fine is equal to the application of the free punishment on the whole, but it is not completely corresponding, and the circumstances on which the criminal on whom the fine is based are found to be improper in the circumstances of making profits in violation of the law, In the unit crime, both the unit and the direct responsible person have been fined, and the amount of the fine of the direct responsible person is much lower than the amount of the unit fine and so on. As to the improvement of sentencing, this paper puts forward three suggestions: first, the behavior of violating the registration system of waste and wastewater and treating the registration system should be taken as the circumstances of sentencing. Second, increase the applicable proportion of non-custodial punishment, and realize the meaning of punishment in a more appropriate way that causes the least burden to the society, and avoid weakening the criminal punishment of the offender at the same time. Third, the interests gained by polluting the environment should be solved through the confiscation of illegal income system, not as the sentencing circumstances of the fine.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.36
【参考文献】
相关期刊论文 前4条
1 张建军;;我国暂缓判决制度的完善[J];甘肃政法学院学报;2011年01期
2 焦艳鹏;;我国环境污染刑事判决阙如的成因与反思——基于相关资料的统计分析[J];法学;2013年06期
3 卜安淳;从犯罪构成看犯罪防控(下)[J];福建公安高等专科学校学报.社会公共安全研究;2000年06期
4 李洁;罚金刑之数额规定研究[J];吉林大学社会科学学报;2002年01期
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