【正文】 中文 4500 字 本科畢業(yè) 論文 外文翻譯 題 目 專 業(yè) 法 學 系 別 歷史文化與法學 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 criminal 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 polluting 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 ensure that control. The interweaving of administrative and criminal law has been pronounced from the beginning of modern environmental crimes in the midtwentieth century. Then, as now, environmental criminal law focused on punishing the lack of a permit or the violation of permit or other regulatory requirements and conditions. However, although this administrative dependence of environmental criminal law may have been the general starting point, European mentators have increasingly pointed to serious weaknesses in this approach. For one thing, if the role of the criminal law is restricted 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 critique of the absolute administrative dependence of environmental criminal law has had its effects on European legislation and on international As a result, one can now increasingly notice the use of other models of environmental crimes, models that are less dependent on administrative law. 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 administrativedisobedience crimes. For one thing, 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 Nevertheless, actual harm to the environment—and the threat of such harm—is 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 environmental 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 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 mentalstate element articulates the attitude a defendant must have had toward the social harm in order to be criminally 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 Faure 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”). Concrete 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 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 detail, 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 lab