The criminal law amendment (11) (hereinafter referred to as the Amendment), which will be formally implemented on March 1, 2021, has made positive progress in improving the legal punishment of environmental pollution crime, criminalizing the "fraud" behavior of environmental assessment and environmental monitoring, and severely punishing the behavior of destroying nature reserves. It is of great significance to improve the environmental criminal legislation and increase the crackdown on environmental crimes significance.

Due to the high generality of criminal law, how to understand and apply the relevant provisions in practice remains to be further clarified. In addition, after the promulgation of the amendment, the Supreme People's court and the Supreme People's Procuratorate's interpretation on Several Issues concerning the application of law in handling criminal cases of environmental pollution (hereinafter referred to as the interpretation of the two Supreme People's courts) formulated in 2016 also need to be further modified and improved.

After the amendment of the crime of environmental pollution, how should the interpretation of the two high schools deal with it?

The maximum legal penalty of environmental pollution crime is raised to 15 years

The "environmental pollution crime" stipulated in Article 338 of the criminal law evolved from the "major environmental pollution accident crime", which was first stipulated in the criminal law (Amendment 8) in 2011. On the premise of keeping the charges, counts and constitutive requirements of environmental pollution crime unchanged, the amendment increases the legal punishment of environmental pollution crime from the second level to the third level by adding the application of fixed-term imprisonment of more than seven years

——Whoever seriously pollutes the environment 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 circumstances are 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;

——Those who fall into one of the four situations mentioned in Article 338 shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined.

Accordingly, without considering the combined punishment for several crimes, the maximum legal penalty for the crime of environmental pollution will be increased to 15 years' imprisonment.

The threshold of incrimination of two high interpretations has changed substantially

It can also constitute a crime to pollute the environment in the secondary protection zone

See Figure 1 for the comparison between the amendment and the two interpretations

(1) The areas of drinking water source protection stipulated in the amendment are no longer limited to "first class drinking water source protection areas".

According to the law of the people's Republic of China on the prevention and control of water pollution and other laws, the protection of drinking water sources can be divided into primary protection zone and secondary protection zone. The key protection areas listed in the amendment are the drinking water source protection areas, which are no longer limited to the first-class drinking water source protection areas specified in the interpretation of the two high levels. In other words, even the discharge, dumping and disposal of toxic and harmful substances in the secondary protection zone can also constitute a crime of environmental pollution. This has substantially changed the threshold of incrimination of the two high interpretation provisions.

(2) The amendment introduces the concept of Nature Reserve, and extends "core area of nature reserve" to "core area of nature reserve".

The core areas of nature reserves as defined in the interpretation of the two high schools are directly based on the regulations on nature reserves. However, the amendment uses the concept of nature reserve and defines the regional scope in the core reserve of Nature Reserve, which greatly expands the scope of the core reserve in the interpretation of the two high standards.

At present, the reform of establishing the system of nature reserves is still in progress, and there are no specific laws and regulations on the specific management measures of various types of reserves and their corresponding functional divisions. According to the guidance on the establishment of a nature reserve system with national parks as the main body issued by the central office and the State Office in 2016, nature reserves are divided into national parks, nature reserves and nature parks according to their ecological value and protection intensity. In principle, human activities are prohibited in the core protection areas, while human activities are restricted in the general control areas. In principle, the natural park is managed as a general control area and human activities are restricted.

The Ministry of natural resources and the State Bureau of forestry and grassland issued the "letter on doing a good job in the early stage of the optimization and adjustment of the scope and functional zoning of nature reserves" in 2020, which proposed that the functional zoning of nature reserves should be changed from the core area, buffer area and experimental area to the core protection area and general control area. In general, the original core area and the original buffer area of the nature reserve are transformed into the core protection area, and the original experimental area is transformed into the general control area.

(3) The amendment expands the protected areas as a whole to "key protected areas determined according to law".

The two interpretations are only applicable to the first class drinking water source protection areas and the core areas of nature reserves, while the amendment is extended to the key protection areas determined by law.

What is "key protected areas determined by law"? Generally, it refers to the areas that are similar to or close to the drinking water source protection areas and the core protection areas of nature reserves in nature, function, protection requirements, etc., which are clearly stipulated by laws and regulations. There are many related protection areas in China, and the concept is relatively messy. In addition to drinking water source protection areas and core protection areas of nature reserves, which areas can be included need to be further clarified by judicial interpretation.

If an act of polluting the environment is committed in the waters of important rivers and lakes, the maximum legal penalty shall be imposed

This provision of the amendment has no direct corresponding clause in the interpretation of the two Supreme Court. The comparison is shown in Figure 2

The expressions of "important rivers and lakes determined by the state" and "rivers and lake waters" come from the water law, water pollution prevention law and other laws. The important rivers and lakes designated by the state usually refer to the seven major river basins of the Yangtze River, the Yellow River, the Pearl River, the Songhua River, the Huaihe River, the Haihe River and the Liaohe River, as well as the important lakes of Taihu Lake and Chaohu Lake. Water area, usually refers to a certain range of rivers and lakes from the surface to the bottom, excluding shoreline and land.

Accordingly, those who do not belong to the major rivers or lakes designated by the state, or discharge, dump or dispose of toxic and harmful substances on the shoreline or land, shall not be sentenced according to the maximum legal penalty.

It is worth noting that the expression used in the amendment is to discharge, dump and dispose toxic and harmful substances into the waters of important rivers and lakes determined by the state, thus covering the discharge of pollutants in waters, or through shoreline or land. In addition, literally speaking, the major rivers and lakes designated by the state should include all the main and tributaries of the rivers and lakes.

"A large number of" permanent basic farmland basic function loss, the maximum legal penalty

See Figure 3 for the comparison between the amendment and the two interpretations

The concept of "permanent basic farmland" comes from the land management law revised in 2019. After the revision of land management law, the concept of "basic farmland" has been changed into "permanent basic farmland", and the relevant management system has been optimized and adjusted. The interpretation was formulated in 2016, earlier than the land management law. The concept of "basic farmland" used in the interpretation is not essentially different from the "permanent basic farmland" stipulated in the current land management law.

The amendment stipulates that if the basic functions of "a large number" of permanent basic farmland are lost or permanently damaged, the maximum legal penalty shall be imposed. If the idea of "two high" interpretation is continued, the "large amount" here should be interpreted as an order of magnitude higher than 15 mu.

The application of personal injury in the highest sentence

See Figure 4 for the comparison between the amendment and the two interpretations

According to the interpretation of the Supreme Court and the Supreme Court, those who cause more than one death or severe disability belong to the applicable situation of "especially serious consequences" (the second legal punishment). The amendment includes it in the application of the highest sentence, which actually increases the application conditions of this kind of situation. In addition, the number of "multiple persons" causing serious injuries and serious diseases is not clear. If we continue the idea of two high interpretation, we should determine the number of more than three people.

The specific conditions of sentence classification need to be further clarified

In the amendment, the second level of legal punishment stipulated in Article 338 of the current criminal law is changed from "particularly serious consequences" to "serious circumstances", and the relevant specific conditions for the classification of sentence terms need to be further clarified.

For example, for the discharge, dumping and disposal of toxic and harmful substances in key protected areas, the interpretation of the two high schools only stipulates the applicable situations of "serious environmental pollution", but does not specify which situations are "serious circumstances". The amendment stipulates the application of the maximum sentence, but does not stipulate the application of the first "serious environmental pollution" and the middle "serious circumstances". In addition, there is also the restriction of "the circumstances are particularly serious" in the maximum sentence.

Another example is that for those who discharge, dump or dispose of toxic and harmful substances into the waters of important rivers and lakes determined by the state, the amendment provides that the maximum legal penalty can be imposed. However, what circumstances are considered as "severe pollution of the environment" and constitute the crime of environmental pollution when discharging, dumping or disposing of toxic and harmful substances into the waters of rivers and lakes? What is "serious"? Which cases of applying the third sentence belong to "the circumstances are particularly serious"? These problems need to be clarified.

2. What's the difference between the term of imprisonment of environmental impact assessment and environmental monitoring fraud?

What kind of impact will EIA agencies' fraud bring to the compilation mode of EIA documents in the future?

If the EIA institutions or their personnel intentionally provide false EIA documents, the interpretation of the two high schools has been made clear, they can be convicted and punished according to the provisions of article 229 and article 231 of the criminal law of the people's Republic of China. In fact, the amendment continues the idea of the two high-level interpretations. The comparison is shown in Figure 5

1. "Crime of intentionally providing false proof documents" or "crime of producing material false proof documents" are only applicable to EIA institutions.

For the EIA institutions, the environmental protection law, the environmental impact assessment law and the regulations on the administration of environmental protection of construction projects respectively use the expressions of "environmental impact assessment institutions", "technical units entrusted to prepare the environmental impact report and environmental impact report form of construction projects" and "units engaged in the environmental impact assessment of construction projects" To the same kind of subject.

The concept of "intermediary organization undertaking the responsibility of environmental impact assessment" used in the amendment should be understood to take care of the continuity of the expression of the original subject of the crime of intentionally providing false supporting documents, and has no special meaning. In other words, "the intermediary organization undertaking the responsibility of environmental impact assessment" refers to the environmental impact assessment agency.

According to the law of the people's Republic of China on environmental impact assessment and the regulations on the administration of environmental protection of construction projects, in addition to the EIA institutions, the construction units can also carry out the EIA of projects on their own. No matter the interpretation of the two high standards or the amendment, there are no provisions on the criminal responsibility of the construction unit to carry out the EIA on its own.

According to the law of the people's Republic of China on environmental impact assessment and the idea of environmental impact assessment reform, the construction unit is the first responsible subject of environmental impact assessment. Article 20 of the law of the people's Republic of China on environmental impact assessment clearly stipulates that the construction unit shall be responsible for the contents and conclusions of the environmental impact report (form) of the construction project, and the technical unit entrusted to prepare the environmental impact report (form) of the construction project shall bear corresponding responsibilities. The administrative penalty stipulated in Article 32 also imposes the same requirements on the construction units and EIA institutions.

From this point of view, the amendment only solves part of the problems in the EIA work. Of course, it is rare for construction units to carry out EIA by themselves. Most construction units will entrust professional EIA agencies to prepare EIA documents. Therefore, there will not be much problem in practice for the time being. However, it is not known whether the provisions of the amendment may have a substantial impact on the preparation mode of EIA documents in the future.

2. The administrative responsibility and criminal responsibility of EIA agencies for "fraud" need to be reasonably linked.

Judging from the administrative punishment stipulated in the law of the people's Republic of China on environmental impact assessment, "fraud" in environmental impact assessment refers to the serious quality problems such as the obvious untruth of basic information in the environmental impact report (form) of construction project, the major defects, omissions or falsehood in the content, and the incorrect or unreasonable conclusion of environmental impact assessment. When investigating criminal responsibility, in principle, the above situations can be regarded as "intentionally providing false proof documents" or "seriously misrepresenting proof documents". Of course, the standard of "serious circumstances" remains to be clarified.

In addition, the amendment will provide false EIA documents in major projects and projects related to public safety, resulting in particularly heavy losses to public property, the interests of the state and the people, as the application of fixed-term imprisonment of not less than five years but not more than 10 years.

What are "major projects and projects involving public safety"? What is "causing particularly heavy losses to public property, the interests of the state and the people"? Generally speaking, the expression of the consequences of "falsification" in EIA documents usually refers to "serious damage to the ecological environment", rather than directly pointing to the loss of public property, the interests of the state and the people. Therefore, between the administrative punishment and the criminal responsibility, also needs the reasonable transformation, the connection.

How to make up for the fraud of environmental monitoring institutions is not only reflected in the monitoring report?

1. "The crime of intentionally providing false proof documents" or "the crime of producing material false proof documents" are only applicable to environmental monitoring institutions.

The concept of environmental monitoring organization comes from the environmental protection law, and essentially refers to the organization engaged in environmental monitoring. The amendment uses the expression of "intermediary organization responsible for environmental monitoring", and its essence still points to environmental monitoring institutions. The environmental monitoring organization includes the environmental monitoring organization of the competent department of ecological environment and other relevant departments, as well as the social environmental monitoring organization. There is no doubt, but does it include the organization engaged in the operation and maintenance of environmental monitoring equipment? It needs to be clear.

The author thinks that although the current ecological environment laws and regulations do not make a clear definition of the scope of environmental monitoring institutions, the "ecological environment monitoring network construction plan" issued by the State Office in 2015 stipulates in "(XV) strengthening the supervision of ecological environment monitoring institutions:" the ecological environment monitoring institutions of relevant departments at all levels, the environmental monitoring equipment operation and maintenance institutions, and the social security organs " Environmental monitoring institutions and their responsible persons shall carry out monitoring in strict accordance with the requirements of laws and regulations and technical specifications. " Obviously, the operation and maintenance organization of environmental monitoring equipment is regarded as a kind of environmental monitoring organization.

Therefore, in principle, environmental monitoring institutions should cover those engaged in the operation and maintenance of environmental monitoring equipment.

From the practical work, environmental monitoring involves multiple responsibility subjects. The first is the staff of governments at all levels and relevant departments; the second is the pollutant discharge units; the third is the environmental monitoring institutions. For the first time, the amendment stipulates the criminal responsibility of environmental monitoring institutions. This solves the problem of criminal responsibility of a subject.

As far as pollutant discharge units are concerned, two charges are stipulated in the interpretation. If a key pollutant discharge unit tampers with or forges the automatic monitoring data or interferes with the automatic monitoring facilities, and discharges pollutants such as chemical oxygen demand and ammonia nitrogen, it may be investigated for criminal responsibility for the "environmental pollution crime"; if an enterprise or institution implements the environmental quality monitoring system, or forces, instigates or instructs others to tamper with or forge the monitoring data, it may "destroy the computer information system" The criminal responsibility should be investigated. The former aims at the destruction of the automatic monitoring system by key pollutant discharge units, while the latter aims at the destruction of the environmental quality monitoring system.

The problem left by the interpretation of the two high schools lies in the fact that there is no clear criminal responsibility for the acts of tampering with and forging monitoring data by non key ranking units, as well as the acts of tampering with and forging manual monitoring data by key pollutant discharge units. The amendment does not provide for this. In practice, there have been some specific cases, which can be considered to make up for in the future.

According to Article 68 of the environmental protection law, local governments at all levels, environmental protection departments at or above the county level and other departments tamper with or forge monitoring data, or instruct them to tamper with or forge monitoring data, which actually constitutes dereliction of duty. They can be investigated for criminal responsibility according to Article 397 of the criminal law for the crime of abuse of power or dereliction of duty.

2. The reasonable connection between administrative responsibility and criminal responsibility of environmental monitoring institutions for "fraud" behavior.

According to the amendment, an article is added after article 342 of the criminal law to make it clear that those who illegally conduct reclamation, development activities or build buildings in national parks or national nature reserves, causing serious consequences or other adverse circumstances, shall bear criminal responsibility.

The following requirements should be met for the application of article 342

First, violation of laws and regulations on the management of nature reserves.

At present, the laws and regulations related to nature reserves are mainly "Regulations on nature reserves" and "Regulations on scenic spots".

For example, according to the regulations on nature reserves, logging, grazing, hunting, fishing, medicine collecting, reclamation, burning wasteland, mining, quarrying, sand digging and other activities are prohibited in nature reserves. No production facilities shall be built in the core area and buffer zone of the nature reserve. No production facilities that pollute the environment or destroy resources or landscapes shall be built in the experimental areas of nature reserves; no other project shall be built, and its pollutant discharge shall exceed the national and local pollutant discharge standards. Those who violate the above provisions to reclaim, develop or build buildings in national nature reserves may constitute crimes.

Second, activities are limited to national parks and national nature reserves.

According to the guiding opinions on the establishment of a natural conservation system with national parks as its main body, the National Park refers to the specific land area or sea area that aims at protecting and representing the natural ecosystem with national representativeness and realizing the scientific protection and rational utilization of natural resources. The most abundant part.

According to the regulations on nature reserves, a nature reserve refers to an area designated according to law for special protection and management of representative natural ecosystems, natural concentrated distribution areas of rare and endangered species of wild animals and plants, and natural relics of special significance. Nature reserves are divided into national nature reserves and local nature reserves. Only those who engage in reclamation and other activities in national nature reserves can constitute crimes.

Third, illegal activities are limited to reclamation, development or building activities.

Fourth, there are serious consequences or other bad circumstances.

What is "serious consequences" or other bad circumstances, still need judicial interpretation to be clear.

For the ecological and environmental departments, it should be noted that according to the "notice on matters related to comprehensive administrative law enforcement of ecological and environmental protection" issued by the general office of the State Council in 2020, and the "Guiding Catalogue for matters related to comprehensive administrative law enforcement of ecological and environmental protection (2020 Edition)" issued by the Ministry of ecological environment, illegal mining, road construction, dam building and construction in nature reserves will cause ecological damage Bad administrative punishment, administrative punishment for mining in Wetland Nature Reserve, and administrative punishment for construction of coastal engineering projects that pollute the environment and destroy the landscape in nature reserve have been clearly implemented by the municipal ecological environment department as the first level law enforcement subject.

In the practice of law enforcement, if a local ecological environment department discovers a suspected crime, it shall transfer it to the public security organ in accordance with the relevant provisions.

The author is the director of the Department of regulations and standards of the Ministry of ecological environment

Comparison of terms

Criminal law amendment (11)

Article 338 discharge, dumping or disposal of radioactive waste, waste containing pathogens of infectious diseases, toxic substances or other harmful substances Under any of the following circumstances, he shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined:

（1） Discharging, dumping or disposing radioactive wastes, wastes containing pathogens of infectious diseases or toxic substances in key protection areas designated according to law, such as drinking water source protection areas and core protection areas of nature reserves, to a particularly serious extent;

Explanation of two high schools

Article 1 an act that implements the provisions of Article 338 of the criminal law shall be regarded as "serious environmental pollution" if it falls into one of the following circumstances:

（1） Discharging, dumping or disposing of radioactive wastes, wastes containing pathogens of infectious diseases or toxic substances in the first class drinking water source protection zones or the core areas of nature reserves;

（2） Discharging, dumping or disposing of radioactive wastes, wastes containing pathogens of infectious diseases or toxic substances into the waters of major rivers or lakes designated by the state, if the circumstances are especially serious;

（3） Causing a large number of permanent basic farmland to lose or suffer permanent damage to its basic functions;

（12） Causing loss of or permanent damage to basic farmland, protective forest land and forest land for special purposes of more than 5 mu, other agricultural land of more than 10 mu and other land of more than 20 mu;

Article 3 an act that implements the provisions of articles 338 and 339 of the criminal law shall be deemed to have "particularly serious consequences" if it falls into one of the following circumstances:

（3） Causing loss of or permanent damage to basic farmland, protective forest land and forest land for special purposes of more than 15 mu, other agricultural land of more than 30 mu and other land of more than 60 mu;

（4） Causing serious injury or illness to more than one person, or

People are serious

Disabled or dead.

Article 1 an act that implements the provisions of Article 338 of the criminal law shall be regarded as "serious environmental pollution" if it falls into one of the following circumstances:

（17） Causing serious injury to more than one person, moderate disability or organ and tissue injury, resulting in serious dysfunction;

Article 3 an act that implements the provisions of articles 338 and 339 of the criminal law shall be deemed to have "particularly serious consequences" if it falls into one of the following circumstances:

（10） Causing serious injury to more than three persons, moderate disability or organ and tissue injury, resulting in serious dysfunction;

（11） Causing more than one person to be seriously injured, moderately disabled or organ tissue injury leading to serious dysfunction, and causing more than five persons to be slightly injured, slightly disabled or organ tissue injury leading to general dysfunction;

（12） Causing death or severe disability to more than one person;

Article 229 Personnel of intermediary organizations responsible for assets appraisal, capital verification, verification, accounting, auditing, legal services, recommendation, safety assessment, environmental impact assessment, environmental monitoring, etc. who intentionally provide false certificates, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also be fined; those who fall under one of the following circumstances shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years and shall also be punished Gold:

（3） Providing false safety assessment, environmental impact assessment and other supporting documents in major projects and projects involving public safety, resulting in particularly heavy losses to public property, the interests of the state and the people.

Whoever commits the act mentioned in the preceding paragraph and simultaneously demands other people's property or illegally accepts other people's property, which constitutes a crime, shall be convicted and punished in accordance with the provisions on heavier punishment.

Any person mentioned in the first paragraph who is seriously irresponsible and produces a certificate that is grossly untrue, thus causing serious consequences, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined.

Article 9 If an environmental impact assessment institution or its personnel intentionally provide false environmental impact assessment documents, if the circumstances are serious, or if they are seriously irresponsible, and the issued environmental impact assessment documents are seriously untrue, resulting in serious consequences, it shall commit the crime of providing false documentary evidence or issue documentary evidence in accordance with the provisions of article 229 and article 231 of the criminal law The punishment for the crime of crime.

Source: China Environment News