法学专业外文翻译--环境犯罪的分级惩罚模型构想

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1、 中文 4500 字 本科毕业 论文 外文翻译 题 目 专 业 法 学 系 别 历史文化与法学 系 - 1 - A Graduated Punishment Approach to Environmental Crimes Susan F. Mandiberg and Michael Faure I. INTRODUCTION Why do we have environmental crimes? What social harms are we addressing, and what interests are we vindicating through use of the crim

2、inal sanction? The answer to these questions is not found in traditional criminal law principles. This is because environmental interests and values do not enjoy an absolute protection in the law. Unlike theft or homicide, for example, which may cause personal benefits only to the criminal, most pol

3、luting activities generate substantial societal benefits as well as environmental costs. Thus, environmental law in many countries is aimed largely at an administrative control of pollution, usually through licensing and permitting systems. Environmental criminal statutes largely function to help en

4、sure that control. The interweaving of administrative and criminal law has been pronounced from the beginning of modern environmental crimes in the mid-twentieth century. Then, as now, environmental criminal law focused on punishing the lack of a permit or the violation of permit or other regulatory

5、 requirements and conditions. However, although this administrative dependence of environmental criminal law may have been the general starting point, European commentators have increasingly pointed to serious weaknesses in this approach. For one thing, if the role of the criminal law is restricted

6、to punishing administrative disobedience, other types of pollution may go unpunished, thus limiting the ability of the criminal law to protect ecological values. In addition, unlike the situation with traditional crimes, administrators (not legislators) decide what is and is not criminal. This criti

7、que of the absolute administrative dependence of environmental criminal law has had its effects on European legislation and on international conventions.5 As a result, one can now increasingly notice the use of other models of environmental crimes, models that are less dependent on administrative la

8、w. The goal of this paper is to examine and advocate for approaches to environmental crimes in addition to the punishment of disobedience to administrative rules and decisions. We acknowledge that an effective environmental criminal scheme must include administrative-disobedience crimes. For one thi

9、ng, disobedience to at least some administrative decisions is a serious matter. For another, such offenses are easiest to prove6 and thus provide a mechanism for punishing some environmental malfeasance that cannot be otherwise addressed.7 Nevertheless, actual harm to the environmentand the threat o

10、f such harmis more serious than mere administrative disobedience. When the government can prove that someone has both acted unlawfully and has caused or threatened such harm, an effective system should have crimes in place to address the situation. In addition, in circumstances of extreme environmen

11、tal harm, it is important to include a crime that does not require the government to prove any disobedience to administrative rules and decisions. Finally, the authorized punishments for offenses on this continuum of environmental criminal statutes should be graduated according to the seriousness of

12、 the social harms at issue. II. FOUR MODELS OF CRIMINALIZATION OF ENVIRONMENTAL HARM - 2 - Criminal statutes address specific social harms. The act element of a criminal statute articulates the social harm at which the crime is directed. The mental-state element articulates the attitude a defendant

13、must have had toward the social harm in order to be criminally culpable.13 While mental state is a crucial element in determining criminal liability, the analysis in this article focuses exclusively on the act element of environmental crimes. Focusing on the act element in a 1995 article, Michael Fa

14、ure and Marjolein Visser proposed and examined four models of environmental crimes. First is Abstract Endangerment, a model criminalizing disobedience to administrative rules and requirements perse . Second is Concrete Endangerment Crimes with Administrative Predicates (“Concrete Endangerment”). Con

15、crete Endangerment crimes involve behavior that both violates regulatory law and poses a threat of harm to the environment； thus, on the surface, at least, these crimes target two social harms. Crimes in the third model, Serious Environmental Pollution, punish very serious environmental harm even if

16、 the activity at issue was not otherwise unlawful； these appear to be aimed at preventing or punishing only harm to the environment itself. The fourth model, Vague Statutes, covers statutes that establish a general duty of care. The present analysis explores the first three of these models in more d

17、etail, but it also expands upon the framework. This is because, upon further consideration, we are convinced that it is useful to add an additional model for crimes that involve both an administrative predicate and actual environmental harm. We label this model Concrete Harm and refer to it as Model

18、 IV. We do not address the Vague Statutes Model. A. Model I: Abstract Endangerment Offenses following the Abstract Endangerment Model do not punish environmental pollution. Instead, their role is to enforce prior administrative decisions, and so they punish the failure of a regulated entity to adher

19、e to administrative dictates concerning environmental regulations. In essence, the Abstract Endangerment Model merely adds criminal law to the enforcement mechanisms available to ensure compliance with monitoring, paperwork, licensing, and other rules meant to regulate pollution producing activities

20、. The criminal provision normally contains a general statement that anyone who violates the provisions of the act or of the regulations, licenses, or permits issued to implement it will be punished with a specific sanction. Included in this group are statutes that make it a crime to engage in specif

21、ied activities without a required license or operating permit. The criminal law typically applies in these kinds of cases as soon as the administrative provision has been violated, even if no actual harm or threat of harm to the environment occurs. If the criminal provision requires or presumes envi

22、ronmental harm or the threat of such harm, the statute is not of the Abstract Endangerment variety. Although Abstract Endangerment crimes focus on vindicating administrative values, punishing the administrative violation indirectly furthers ecological values in two ways. First, an entity that follow

23、s administrative rules is less likely to harm the environment. More to the point, if administrative rules are followed, the regulatory agency can monitor the entitys operations to ensure that harm is less likely to occur. Nevertheless, although environmental values are implicated by Abstract Endange

24、rment crimes, the overlap with such values is incomplete. For one thing, an entity in compliance with all administrative rules can still cause environmental “harm.” Consider that, for each parameterair, water, soil the administrative agency will set a baseline of “acceptable” contact between a pollu

25、tant and the environment. This baseline will reflect a compromise among such considerations as the pollutants effect on the environment, societys need for the polluting activity, and the existence (and cost) of technology that can mitigate the damage. Thus, compliance with the baseline does not mean

26、 a lack of environmental “harm.” However, the disconnect between administrative and environmental values can go the other way as well. That is, an entity that violates administrative rules may not be causing environmental harm. Take, for example, an entity that transports hazardous waste without the required paperwork.