摘要
环境犯罪保护法益是生态法益的观点,在我国已成为主流学说。这一观点虽有利于环境保护,但在我国不应得到支持,因而有必要对我国环境犯罪的保护法益进行再识别。在教义学体系内,具体犯罪保护法益的识别应以犯罪规定的构成要件为基础,应确保法益具备现实实在性和明确性,并与实证宪法的价值秩序相联结。在教义学体系外,则应考察所识别的法益与公共政策的契合度。环境犯罪保护法益呈现出差序结构,其阻挡层法益为国家环境资源保护制度,背后层法益为公共安全和国家自然资源所有权。该法益既符合上述教义学标准,又比生态法益更契合我国当下的公共政策,即更能充分挖掘其他法律的环境治理潜能,推动生态环境多元共治,还能有效缓和经济发展与环境保护之间的紧张关系。
The view that the protected legal interest of environmental crimes is ecological legal interest has become mainstream in China.Although ecological legal interest is favorable to environmental protection,it should not be supported in China,thus it is necessary to reidentify the protected legal interest of environmental crimes.Within legal dogmatics,identification of the protected legal interest of specific crimes should be based on constitutive elements,realistic and clear,and linked to the value order of a positive constitution.Outside legal dogmatics,the identified legal interest should be examined for its compatibility with public policies.By examining both of the two dimensions,the theoretical and practical rationality of the legal interest can be ensured.The examination of public policies is part of the examination of consequences.Criminal law interpretation should follow the internal logic of legal dogmatics and focus on the social impact of the interpretation.Under the precondition of meeting the requirement of legal dogmatics,the interpretation that is most in line with public policies should be adopted.Environmental crimes in China can be divided into crimes of environmental pollution and crimes of destruction of natural resources,with their protected legal interest presenting a double-layer structure.The blocking layer of their protected legal interest is the same,namely the state environmental resources protection system,but the back layers of their protected legal interest are different:it is public security in the crime of polluting the environment and the state ownership of natural resources in the crime of destroying natural resources.The legal interest identified in this paper can successfully pass the test of the above three criteria of legal dogmatics and is more in line with current public policies than the ecological legal interest.Firstly,this legal interest is more capable of fully exploiting the environmental governance potential of other laws.In contrast,eco-legal interests have a more positive pull on legislation and justice and will excessively expand the scope of penalties for environmental crimes,thereby squeezing the living space of other laws,which is not conducive to realizing pluralistic ecological and environmental co-management.Secondly,this legal interest is more in line with the current economic policies on promoting economic development and protecting private enterprises in China as it is more conducive to limiting the expansion of environmental criminal legislation and criminal justice than ecological legal interest.Finally,this legal interest does not conflict with China's strict ecological environmental protection policy.The establishment of abstract dangerous crimes enables criminal law to play its role in environmental protection at an earlier stage,therefore,the legal interests identified in this paper will not impede the state's protection of the ecological environment.
出处
《环球法律评论》
CSSCI
北大核心
2024年第6期100-116,共17页
Global Law Review
基金
2023年度西北政法大学校级青年科研项目“集体法益的刑法保护原理与实践适用研究”(2023QN05)的研究成果。
作者简介
戴小强,西北政法大学刑事法学院讲师。
