On Criminal Regulations for Marine Ecological Environment Protection:Based on the Judicial Practice of the Crime of Environmental Pollution in City Y

HU Gongshu

Abstract:The coastal marine ecological environment is greatly influenced by the water conditions of coastal cities because coastal industrial effluents and domestic wastewater are discharged into the ocean,polluting the environment,which could cause serious damage to the marine ecological environment.To protect the coastal marine ecological environment,the pollution status of coastal cities,especially water pollution,must be paid attention to.Judicial practice analysis has found that most of the environmental pollution cases investigated and dealt with in practice are all in relation to water pollution.That is to say,in these cases,environmental pollution is caused by water pollution,and this subsequently has a great impact on the coastal marine environment.In the current judicial practice,a lot of problems have arisen while handling cases related to environmental pollution.For example,the subjective aspect of the crime is unclear;the evidence obtained is insufficient;the administrative law enforcement and criminal justice fail to cooperate effectively;“underground pipelines”and“seepage pits”are hard to be determined;and unit crimes are difficult to crackdown on.To resolve the above problems,a criminal policy of severe punishment should be upheld;joint meetings should be held on a regular basis to reach a consensus on the judicial application of difficult issues;the cooperation between administrative law enforcement and criminal justice also needs to be enhanced.

Key Words:Marine ecological environment protection;Crime of environmental pollution

In February 2011,the State Council of China officially approved the Zhejiang Marine Economic Demonstration Zone Plan,bringing the construction of the Zhejiang Marine Economic Demonstration Zone into a national strategy.As required by the State Council,Zhejiang Province,where City Y is located,should build a marine economic demonstration zone with strong comprehensive strength,outstanding core competitiveness,reasonable spatial allocation,sound ecological environment,and flexible institutional mechanisms,forming an important economic growth pole in the eastern coastal areas of China.1Zhejiang Marine Economic Demonstration Zone Plan,Chapter Two,Section One.(in Chinese)Zhejiang Province is required to develop a marine economy,and at the same time should also pay attention to the protection of the ecological environment.Such a requirement seems to be contradictory,yet actually coherent in nature when judging from the perspective of the law of development.The 2019 China Ocean Economy Expo was held in Shenzhen from 14-17 October 2019.President Xi Jinping sent a congratulatory letter to the participants of the meeting,fully demonstrating how important it is for us to develop an ocean economy,while also giving consideration to the protection of the marine ecological environment.The Marine Environment Protection Law of the People’s Republic of China (hereinafter referred to as the“MEPL”)was revised three times in 2013,2016 and 2017.The MEPL was amended in two consecutive years,namely,2016 and 2017,which is unusual in the field of legislation.It does,however,highlight China’s concerns for the protection of the marine environment.The MEPL is applicable to cases related to the ocean.The provisions on prevention of marine pollution in this law are different from those on land.But provisions in the fourth chapter (Prevention and Control of Pollution Damage to the Marine Environment Caused by Land-based Pollutants)and the seventh chapter (Prevention and Control of Pollution Damage to the Marine Environment Caused by Dumping of Wastes)are closely related to land.City Y is located in the eastern coastal areas of China.The coastal ecological environment,therefore,will be affected to a certain degree because a large quantity of industrial effluents,urban sewage and other wastewater will eventually be discharged into the East China Sea.This would subsequently hinder the protection of the marine ecological environment.By taking cases concerning environmental pollution in City Y and analyzing the provisions in the Prevention and Control of Pollution Damage to the Marine Environment Caused by Land-based Pollutants,this paper indicates that to protect the marine ecological environment,especially the coastal marine ecological environment,the problems existing in the judicial practice of environmental pollution in coastal cities should be solved first.

I.Investigation of Cases Involving the Crime of Environmental Pollution in City Y

From 2014 to 2018,City Y had investigated and handled 200 cases related to crimes of environmental pollution (2014:82 cases,involving 161 people;2015:57 cases,involving 97 people;2016:25 cases,involving 40 people;2017:23 cases,involving 38 people;2018:13 cases,involving 27 people).The above data indicates that both the number of cases and the number of people involved have begun to decline.Meanwhile,the penalties for such cases also begin to be more lenient.In terms of sentencing,both the principal and the accessory were sentenced to prison in the past,but now,only the principal is sentenced to prison and the accessory(such as workers)is sentenced to probation.Regarding the maximum penalty,the culprit could previously have faced a maximum penalty of two years imprisonment,whereas now the maximum penalty is around one year,and there are no cases that bear a maximum penalty of more than three years imprisonment.More than 95%of all investigated cases involve water pollution,and these cases have all affected,whether it be directly or indirectly,the coastal marine ecological environment.In terms of the subjects of crime,there were no crimes of environmental pollution committed by a unit or a group in 2014 and 2015.But among all the cases investigated and dealt with,there were 5 cases of environmental pollution crimes committed by units or groups in 2016 and 2017,and one occurred in 2018.The above data implies that the judicial authorities are gradually cracking down on the environmental pollution crimes,particularly crimes committed by a unit or a group.

The water pollution in City Y will eventually affect the coastal marine ecological environment since this city is located along the coast.The coastal waters used to be natural fisheries according to the older generation,but now,that is merely a distant memory.The number of marine organisms such as jellyfish has decreased significantly over the last few decades.Instead,all kinds of aquatic products with excessive heavy metals are rising.On 10 June 2013,a CCTV column,“Half-an-hour Economic News,”reported the destruction of the marine environment in Y Bay under the title of“Y Bay Survey:A Beautiful Ocean Destroyed.”2Yueqing Bay Survey:Beautiful Ocean Destroyed,CCTV,at http://tv.cntv.cn/video/C10329/bb132f5dec1a41b6b72487bf032750ac,19 July2019.(in Chinese)Relevant research has also confirmed that the marine aquatic products in Y Bay contain various heavy metals such as arsenic,mercury,and cadmium,among which arsenic is the highest one.3HU Licheng and ZHANG Jinhuai,Investigation of Heavy Metal and Arsenic Pollution in Aquatic Products in Yueqing,Chinese Journal of Health Laboratory Technology,No.13,2017,p.1939.(in Chinese)In addition,the surface sediments in the tidal flat in Y Bay are also polluted by heavy metals,and the surface sediments measured in most of the stations have reached a mild level of pollution.4GAO Junzhang and MA Zhikai,et al.,Pollution and Potential Ecological Risk Evaluation of Heavy Metals in the Intertidal Surface Sediments from Yueqing Bay,Transactions of Oceanology and Limnology,Vol.5,2016,p.44.(in Chinese)The contamination of these marine ecological environments is a result of the excessive discharge of industrial effluents into the coastal areas of Y Bay over a substantial period.Though relevant departments have adopted strong administrative measures and formulated relevant criminal laws in recent years,these marine ecological environments are still far from being restored.

From 2015 to 2018,in response to the Supreme People’s Procuratorate of the PRC,procuratorial organs across the State carried out“monitoring activities for special cases of crimes against environmental resources.”By the end of 2018,20 cases of environmental pollution crimes involving 9 people were reported and handled in City Y,among which 5 people from 5 cases were faced prosecution and were found guilty.Among all the cases that are under supervision,the environmental pollution case involving criminal Dong XX is a particularly typical one.The culprit secretly built an underground pipeline to discharge industrial wastewater directly to the beach.Villagers had spontaneously hired an organization to search and excavate the suspected pipeline,and found out the pipeline was originated from Dong’s factory.Such cases continue to recur,particularly over recent years.There has been a new trend in criminal pollution whereby criminals secretly discharge wastewater under the disguise of environmental protection facilities.Such cases are difficult to investigate and prosecute.These crimes can cause severe harm to the environment,beaches,and also the residents.

II.Controversies in the Current Investigation and Prosecution of Crimes of Environmental Pollution

A.In terms of the Determination of subjective Intention

1.From a legislative point of view,there is controversy in determining the subjective intention of the criminal suspect involved in environmental pollution crimes.Article 338 of the Criminal Law of the People’s Republic of China (hereinafter referred to as the“CL”)on the crime of environmental pollution provides:5Art.338 of the Criminal Law of the People’s Republic of China (amended in 2017):crime of environmental pollution.

Whoever,in violation of the state’s provisions,discharges,dumps or disposes of any radioactive waste,any waste containing pathogens of any infectious disease,any poisonous substance or any other hazardous substance,which has caused serious environmental pollution,shall be sentenced to imprisonment of not more than 3 years or criminal detention and/or a fine;or if there are especially serious consequences,be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine.

This provision is generated by Article 46 of the Amendment (VIII)to the CL that was implemented on 1 May 2011.Article 46,before it was amended,stated:

Whoever,in violation of the state’s stipulations,discharges,dumps or disposes radioactive wastes,wastes of carrying infectious pathogens,poisonous substances or other dangerous substances to land,water or air,and causes a serious accident of environmental pollution shall,if the offence causes serious consequences of great losses of public or private property or bodily injury or death of another person,be sentenced to fixed-term imprisonment of not more than three years or criminal detention,and concurrently or independently be sentenced to a fine;if the consequences are especially serious,the offender shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years,and concurrently be sentenced to a fine.

The corresponding charge of this article was the“crime of serious environmental pollution accident.”6Art.338 of the Criminal Law of the People’s Republic of China (second amendment in 2009):crime of serious environmental pollution accident.If we compare the content of the article before and after the amendment,it is clear that the sentencing has not changed and the description of the crime has not changed significantly.The main change in the crime’s description is-“causes a serious accident of environmental pollution shall,if the offence causes serious consequences of great losses of public or private property or bodily injury or death of another person”-to“has caused serious environmental pollution.”From a literal point of view,there is a slight change in the description from specific to abstract.It is such a change that has led to a greater controversy in determining the crime of environmental pollution in theory and practice.

The dispute is focusing on whether the subjective aspect of the crime has changed from“negligent”to“intentional”,and whether the objective aspect has changed from a“result crime”to a“conduct crime.”In other words,the original states“crime of serious environmental pollution accident,”implying that it is a“negligent”crime,and that the objective aspect is that the actor violated environmental protection laws and regulations and discharged pollutants to the environment,causing a major environmental pollution accident.7CHEN Xingliang,Normative Criminal Law,Beijing:China University of Political Science and Law Press,2003,p.444.(in Chinese)The revised version,however,refers to it as“crime of environmental pollution,”implying that it is“intentional”and not an accident,as stated in the original.8CHEN Xingliang,Normative Criminal Law,Beijing:China Renmin University Press,2013,2nd edition,p.1007.(in Chinese)

The subjective aspect of the crime itself is extremely complex.Relevant provisions in this regard could be found in Articles 14 and 15 of the CL.In accordance with Article 14,the term“intentional”refers to the subjective state of“clear knowledge that one’s own act will cause socially dangerous consequences,and of hope for or indifference to the occurrence of those consequences.”On the other hand,the term“negligent”is defined as“one should foresee that one’s act may cause socially dangerous consequences but fails to do so because he or she is careless or,having foreseen the consequences,readily assumes that he or she can prevent them,with the result that these consequences occur.”9Art.14 of the Criminal Law of the People’s Republic of China (amended in 2017):An intentional crime is a crime constituted as a result of clear knowledge that one’s own act will cause socially dangerous consequences,and of hope for or indifference to the occurrence of those consequences.Criminal responsibility shall be borne for intentional crimes.Art.15 of the same act:A negligent crime occurs when one should foresee that one’s act may cause socially dangerous consequences but fails to do so because of carelessness or,having foreseen the consequences,readily assumes he can prevent them,with the result that these consequences occur.Criminal responsibility is to be borne for negligent crimes only when the law so stipulates.There is less controversy in interpreting“intentional”and“negligent”as specified in the general provisions of the CL when determining the subjective status of the suspect in a single-act crime.The same,however,does not apply to a multi-act crime.In the case of traffic accidents,the actors are considered or presumed to intentionally violate the traffic and transportation laws and regulations.But the consequences brought by traffic accidents are considered to be caused by negligence.10Art.133 of the Criminal Law of the People’s Republic of China (amended in 2017):Whoever violates traffic and transportation laws and regulations thereby giving rise to major accidents involving severe injuries,deaths,or great losses of public and private properties are to be sentenced to not more than three years of fixed-term imprisonment;when fleeing the scene after an traffic and transportation accident or under other particularly odious circumstances,to not less than three years and not more than seven years of fixed-term imprisonment;when running away causes a person’s death,to not less than seven years of fixed-term imprisonment.However,if the actors do intentionally cause harm,then they might be suspected of committing intentional homicide11Art.232 of the Criminal Law of the People’s Republic of China (amended in 2017):Whoever intentionally kills another is to be sentenced to death,life imprisonment or not less than 10 years of fixed-term imprisonment;when the circumstances are relatively minor,he is to be sentenced to not less than three years and not more than 10 years of fixed-term imprisonment.or crimes of endangering public security12Arts.114～139 of the Criminal Law of the People’s Republic of China:Crimes of Endangering National Security..

The crime of serious environmental pollution accident is similar to the crime of causing traffic accidents in terms of their descriptions.The actor,in violation of the State’s stipulations,discharges,dumps or disposes pollutants to the land,water or air.Such an act,by the same logic,should be seen as a subjectively intentional act.This is because the words,namely,“discharge,dump or dispose,”contain“cognitive factors”and“will factors,”which implies that the actor himself or herself is willing to and hopes to do so.Regarding the issue of“causing a serious accident of environmental pollution,”the actor should be subjectively negligent as the term“accident”itself describes something“major”,“unexpected”and“unwanted.”Therefore,it would be more reasonable if the harmful consequence could be seen as negligent wrongdoing.The description between the crime of environmental pollution and the crime of serious environmental pollution accident has changed following the amendment.The major difference is to replace what could be seen as a negligent act in the crime of serious environmental pollution accident with the phrase“has caused serious environmental pollution.”From a semantic point of view,the phrase“has caused serious environmental pollution”is less severe than the phrase“cause a serious accident of environmental pollution.”If the former is interpreted as a negligent behavior,then the latter should also be seen as negligent:“actors should foresee that their acts may cause serious consequences for polluting the environment,but they fail to do so because they are careless,or they thinkthey could prevent the consequences,but they do not.”This lacks logic.Firstly,in the case where the act is already intentional,there is no way that the actor is unable to foresee the consequences;secondly,the actor is conscious of his or her own behavior when“discharging,dumping or disposing”of pollutants,but believes that the subsequent serious consequences can be avoided.This is ill-founded,regardless of whether it is from a criminal policy perspective or general knowledge about environmental protection.Therefore,the phrase“has caused serious environmental pollution”should be regarded as an intentional act,meaning the actor is consciously aware of the consequences.Generally,the actor intends to allow that to happen.And such an intentional subjective state could be regarded as an“objective excess factor”13ZHANG Mingkai,Introduction to the Concept of“Objective Excess Factor”,Chinese Journal of Law,Vol.3,1999,pp.27～29.(in Chinese),which does not require any subjective understanding from the actor.To put it differently,the actor does not need to have a clear intentional aim to cause harm and just the possibility of foreseeing it would be enough.

2.In terms of judicial reasoning,there are certain difficulties in the verification of subjective intention.Judicial reasoning is a process of prosecuting crimes based on facts and applicable laws-facts which should be based on credible evidence.There are disputes on how to interpret the crime of environmental pollution,especially the actor’s subjective aspects,while in the current judicial reasoning,the mainstream view on the subjective aspects of criminal suspects is intentional,which could be direct or indirect.In judicial practice,the dispute over subjective intention mainly focuses on how to demonstrate it,that is,how to prove that the subjective aspect of the criminal suspect is intentional by evidence,especially when the criminal suspect denies the existence of subjective intention.This is a recurring problem for judicial officers in practice.

Judging from the provisions of the meeting minutes,the criminal suspect could be determined to have subjectively committed intentional wrongdoing from a comprehensive perspective.The Minutes of the Meeting on Several Issues Concerning the Handling of Criminal Cases of Environmental Pollution(III)was jointly issued by the High People’s Court of Zhejiang,the People’s Procuratorate of Zhejiang,Zhejiang Provincial Public Security Department and Zhejiang Environmental Protection Bureau in 2018 (hereinafter referred to as the“2018 Meeting Minutes”).According to the minutes,“‘with knowledge’ could be interpreted as ‘knew’ and ‘should have known’.While determining the subjective intention,if the actor cannot make a reasonable explanation or has no other evidence to prove that he or she does not know,then he or she should be determined to have known.”14Minutes of Meeting on Several Issues Concerning the Handling of Criminal Cases of Environmental Pollution (III),at http://www.zjepb.gov.cn/art/2018/4/10/art_1201812_17365534.html,14 November 2019.(in Chinese)In practice,it is still difficult to determine the subjective aspect of the criminal suspect in the case of environmental pollution crimes.For example,the criminal suspect was under investigation for illegal discharge of pollutants,but he or she argued that it was caused by negligent actions such as equipment failure or aging and cracking of the cistern.Even in a situation where the criminal suspect is the person in charge of the enterprise,he or she would deny any wrongdoing of discharging pollutants and defend himself or herself by blaming the workers.The subjective aspect of the criminal suspect is difficult to determine under such circumstances,which has led to a decrease in the prosecution of environmental pollution crimes.

The reasons why it is so hard to prove the subjective intention of the actor are as follows:Firstly,the investigation and collection of evidence does not conduct immediately.Cases of environmental pollution are generally discovered in the course of administrative law enforcement by the environmental protection department alone,or with the police.However,law enforcement personnel,sent by the environmental protection department and the police station,are unable to record an oral confession from the onsite workers because they do not have many helpers on the scene.At the same time,because the results of the water samples cannot be immediately released,it would be inappropriate to directly investigate onsite workers without any credible evidence.Even after the results have been released,it would still take at least three to seven days to conduct an investigation because of the investigative proceedings.However,the best time to investigate and obtain evidence has gone during this process.The second reason is that law enforcement personnel become negligent during the investigation and collection of evidence.For example,only one of the outlets that discharge pollutants is sampled and monitored,neither the site nor the onsite workers are surveyed or questioned.After the monitoring result of water samples is released,people involved start to shirk their responsibility,which makes it impossible to find out the source of the pollutants,not to mention to hold specific units and personnel accountable.Moreover,some law enforcement personnel may intentionally allow time for the onsite workers to dilute the sampling pool,or even cover up for them.Even if some personnel from the police station know that the criminal suspect is the person in charge of the enterprise,they do not obtain evidence of the criminal acts.For example,they do not take down the 24-hour monitoring records of the outlets that discharge wastewater;they do not make any calculations or consult any documents related to the production capacities,raw materials for wastewater purification,hazardous wastes,and disposal bills of hazardous wastes;and they do not inquire about the enterprises that dispose of hazardous wastes.The law enforcement personnel slack off in the course of collecting evidence,which to some extent exacerbates environmental pollution because they fail to stop the discharge of wastewater.The actors may justify their illegal behavior by arguing on the grounds of negligence so as to get away from criminal punishment,which has led to a decrease in the prosecution of environment pollution crimes.In recent years,breakthroughs have been made in the investigation of some criminal activities,such as electroplating,that severely pollute the environment.However,wastewater covertly discharged still exists in some way,bringing a negative impact on the environment such as beaches and oceans.

B.In terms of standards for Evidence Collection

For onsite evidence collection,personnel from the environmental protection department usually conduct onsite investigations,sampling surveys and inquiries from the perspective of administrative law enforcement,without considering this might be used in a criminal case,let alone collecting evidence in a normative way.In practice,criminal suspects could not be convicted if the evidence is highly disputable,and as a result,cases could not be concluded.Cases remaining unsettled due to the normative issues of evidence obtainment could be divided into the following three parts:

1.Some key evidence related to the monitoring of wastewater sampling could not be confirmed because no photos or videos were taken during the sampling process and the signature that is supposed to be signed on thescene turned out to be forged.Therefore,the case could not be settled.Such a situation is more common in the early stages of handling environmental pollution cases.Criminal suspects have confessed to the fact that they have illegally discharged wastewater containing heavy metals,and usually do not have any disagreement on the flaws found in the analyzed samples.However,if the criminal suspects did not witness the sampling process on the scene,and the process was not recorded by the collection personnel,then the evidence obtained from such way would lack credibility from a judicial perspective.

2.The investigation is not thorough.There are doubts about whether the sampling station could be seen as an external environment.When investigating environmental pollution cases,sometimes the outlets discharging wastewater are out of sight,especially when they are directly connected to a drainage pipeline.When the outlets are found,they could be far away from the factory,and other pipelines may also be connected to the same drainage pipeline.Law enforcement personnel may possibly neglect the question of whether the outlets sampled are exclusive or not.There have been cases where personnel from the environmental protection department believe the outlet sampled is exclusive,while on the other hand,police officers believe that the outlet is not exclusive as other pipelines may interfere with the outlet.Sometimes,no samples of the external environment are collected for testing during the investigation,and in the end,the wastewater is actually not discharged directly into the external environment,but to a reservoir instead.This situation tends to occur in facilities located on mountains where wastewater is discharged into a reservoir through a ditch.The law enforcement personnel believe discharging wastewater into a reservoir is similar to discharging it to the external environment,while the criminal suspect argues that the wastewater will later be treated once it reaches the reservoir.

3.The monitoring report on wastewater does not meet the requirement of attaching the result of wastewater identification.The Minutes of the Meeting on Several Issues Concerning the Handling of Criminal Cases of Environmental Pollution was jointly issued by the High People’s Court of Zhejiang,the People’s Procuratorate of Zhejiang,Zhejiang Provincial Public Security Department and Zhejiang Environmental Protection Bureau in 2014 (hereinafter referred to as the“2014 Meeting Minutes”).According to the fourth section of the 2014 Meeting Minutes,the test report or the monitoring report,issued by the environmental protection department,should reflect the characteristics of poisons,wastes,and pollutants,and should clearly state whether the tested materials contain“toxic substances”and“hazardous wastes.”The environmental protection departments can directly identify wastes listed in the Directory of National Hazardous Wastes and the Classified Catalogue of Medical Wastes,and then submit a written report.However,in practice,the environmental protection departments have not submitted any written report on the identification of“toxic substances”and“hazardous wastes,”nor have they made any identification in the wastewater monitoring report.Without the identification of wastewater,relevant provisions specified in the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Environmental Pollution (hereinafter referred to as the“2016 ISPCSPP”),which was issued in 2016,would be difficult to apply.Criminal suspects could be held accountable in accordance with provisions such as“illegally discharging,dumping or disposing of three tons or more of hazardous wastes”and“discharging,dumping or disposing of radioactive wastes,wastes containing infectious disease pathogens,or toxic substances through underground pipelines,seepage wells,seepage pits,crevices,karst caves,pouring and other means to evade supervision.”15Art.1 of the 2016 Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Environmental Pollution:Under any of the following circumstances,whoever commits any of the conducts as provided in Article 338 of the Criminal Law shall be determined to“have caused serious environmental pollution”:(a)Discharging,dumping or disposing of wastes containing radioactive substances or infectious disease pathogens,or toxic substances in the Grade I reserves of drinking water source and the core area of nature reserves.(b)Illegally discharging,dumping or disposing of three tons or more of hazardous wastes.(c)Discharging,dumping or disposing any pollutant containing lead,mercury,cadmium,chrome,arsenic,thallium or antimony,exceeding more than three times the standards for pollutant discharge issued by the State or the local governments.(d)Discharging,dumping or disposing any pollutant containing nickel,copper,zinc,silver,vanadium,manganese or cobalt,exceeding more than ten times the standards for pollutant discharge issued by the State or the local governments.(e)Discharging,dumping or disposing of radioactive wastes,wastes containing infectious disease pathogens,or toxic substances through underground pipelines,seepage wells,seepage pits,crevices,karst caves,pouring and other means to evade supervision.(f)Receiving two or more administrative penalties due to discharging,dumping or disposing of radioactive wastes,wastes containing infectious disease pathogens or toxic substances within two years in violation of the State provisions,but carrying out the aforesaid conduct again.(g)A key pollutant discharge entity tampers with or forges automatic monitoring data or disrupts any automatic monitoring facility,or discharges chemical oxygen demand,ammonia nitrogen,sulfur dioxide,nitric oxide,or any other pollutant.(h)Illegally reducing expenditure on the operation of any pollution prevention and control facility by more than one million yuan.(i)Illegal income or resulting in the loss of public or private property of more than 300,000 yuan.(j)Inflicting serious damage on eco-environment.(k)Resulting in more than 12 hours of interruption of centralized water drawing from the drinking water source at or above the township level.(l)Resulting in the loss of fundamental functions of or permanent destructions to five mu or more of basic farmland,protection forestland or special-purpose forestland,or ten mu or more of other farmlands,or 20 mu or more of other lands.(m)Resulting in the death of 50 cubic meters or more of forests or other woods,or 2,500 saplings or more.(n)Resulting in the evacuation or transfer of 5,000 people or more.(o)Resulting in 30 persons or more being poisoned.(p)Causing any minor injury,light disability or general dysfunction due to the damage of organ or tissue to three persons or more.(q)Causing any serious injury,moderate disability or serious dysfunction due to the damage of organ or tissue to one person or more.(r)Other circumstances that cause serious environmental pollution.If the monitoring report does not tell whether the wastewater contains“toxic substances”or“hazardous wastes,”the investigation will not go further.The identification of wastewater is,therefore,of great necessity.Let’s look at an example of a copper gate manufacturer discharging wastewater.The main material being processed is potassium sulfide,which could be used to alter the color of copper gate.Regarding this case,the environmental protection department described the processing as“surface treatment.”Whether or not the above“surface treatment”is the same as described in the Directory of National Hazardous Wastes,that is,“HW17 Wastes from surface treatment,”is disputable.If the raw materials processed could be identified as hazardous wastes,then the discharge amount should be determined to see whether it has reached three tons or more— the minimum amount of constituting a crime.Combined with the discharge time,frequency and the amount of water consumed,the criminal suspect could be held accountable.

Certainly,there are indeed some difficulties for the environmental monitoring department to make a conclusive judgment on whether the tested materials contain“hazardous wastes,”and also to directly determine the waste based on the Directory of National Hazardous Wastes and the Classified Catalogue of Medical Wastes.As aforementioned,the interested parties and employees called the processing work“surface treatment”.Is the“surface treatment”similar to the“HW17 Wastes from surface treatment”as specified in the Directory of National Hazardous Wastes?It is difficult to draw a conclusion just based on the catalogue of the Directory of National Hazardous Wastes,and it requires professional technology for identification.According to the Directory of National Hazardous Wastes,the core ingredients of some waste liquids can be directly identified as hazardous wastes,but generally,they are processed in the first step and the waste liquids discharged in the later processes still require professional technology for identification.The identification of hazardous wastes often involves the issue of appraisal qualifications which involve both appraisers and appraisal units.Whether the appraisal unit is qualified or not often becomes the focus of controversy in practice.Many appraisal units often do have qualifications but have simply failed to register them.In this regard,the author believes that the qualifications of the appraisers should be mainly reviewed,particularly on a case by case basis.If the appraisal unit could make a reasonable explanation,relevant appraisal opinions could be adopted.

C.Problems in the Cooperation Between Administrative Law Enforcement and Criminal Justice

Cases of the crime of environmental pollution are investigated and handled more frequently since 2013 when the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Environmental Pollution (hereinafter referred to as the“2013 ISPCSPP”)was issued.All cases of environmental pollution crimes are investigated and handled mainly by the public security authorities with the help of the environmental protection departments.Some of these cases are independently investigated and dealt with by the environmental protection departments before they are transferred to the public security authorities.Some are jointly investigated and handled by both the environmental protection departments and the public security authorities from the very beginning.There are further documents to regulate the transfer procedure of the former,compared with the latter,including the Provisions on the Transfer of Suspectable Criminal Cases by Administrative Organs for Law Enforcement issued by the State Council in 2001 (hereinafter referred to as the“2001 Provisions on the Transfer of Suspectable Criminal Cases”),the Opinions on Strengthening the Connection Between Administrative Law Enforcement and Criminal Justice issued by the General Office of the Central Committee of the Communist Party of China in 2011 (hereinafter referred to as the“2011 OSC”),and the Measures for Coordination Work Between Administrative Law Enforcement and Criminal Justice in Environmental Protection issued by the Ministry of Environmental Protection,the Ministry of Public Security and the Supreme People’s Procuratorate in 2017(hereinafter referred to as the“2017 MCW”).

With all these regulations in hand,nonetheless,there are still three main problems in case investigation.First,the public security authorities only review the administrative case files and do not conduct preliminary investigations.In other words,the public security authorities raise doubts about the administrative case files,such as unclear sampling of wastewater,and the denial of the criminal suspect in the name of negligence.However,they are reluctant to conduct preliminary investigations or at least file the case first,but rather,they just return the case materials to the environmental protection departments directly.The personnel of the environmental protection departments consider that the facts of the case are clear,while the personnel of the public security authorities do not think so,but at the same time,they are reluctant to conduct a preliminary investigation themselves.As a result,the case would remain unresolved.

Second,the public security authorities are unwilling to attach a written report for refusal or further scrutiny.In accordance with Article 9 of the 2017 MCW16Art.9 of the Measures for Coordination Work Between Administrative Law Enforcement and Criminal Justice in Environmental Protectionissued by the Ministry of Environmental Protection,the Ministry of Public Security and the Supreme People’s Procuratorate in 2017:The public security authority shall decide whether or not to docket a case concerning suspected environmental crime referred by the environmental protection authority within three days after accepting the case;or,if the clues to the suspected environmental crime need to be investigated and proved,within seven days after accepting the case;or,if the case is significant,difficult and complicated,may,with the approval of the person in charge of the public security authority at or above the county level,make a decision within 30 days after accepting the case.A case over which the public security authorities have jurisdiction but is accepted by the public security authority which does not have jurisdiction shall be referred to the public security authority of jurisdiction within 24 hours after the case is accepted,of which written notification shall be given to the environmental protection authority,with a copy sent to the people’s procuratorate at the same level.A case over which the public security authorities have no jurisdiction shall be returned within 24 hours to the environmental protection authority referring the case.,

the public security authority shall decide whether or not to docket a case concerning suspected environmental crime referred by the environmental protection authority within three days after accepting the case;or,if the clues to the suspected environmental crime need to be investigated and proved,within seven days after accepting the case …

But in practice,the public security authorities only make a verbal explanation of why they return the case.Such an act does not conform to the transfer standard.Furthermore,they do not send a receipt of acceptance or sign the transfer receipt which is necessary when accepting cases.

Third,the procuratorial supervision needs further improvement.According to Article 6 of the 2017 MCW,17Art.6 of the Measures for Coordination Work Between Administrative Law Enforcement and Criminal Justice in Environmental Protection issued by the Ministry of Environmental Protection,the Ministry of Public Security and the Supreme People’s Procuratorate in 2017:The environmental protection authority that is to refer a case concerning suspected environmental crime shall refer the case materials to the public security authority at the same level within 24 hours after deciding to make an referral and sends a copy of the case referral to the people’s procuratorate at the same level.The environmental protection authority shall attach the following when referring a case concerning suspected environmental crime to the public security authority:(a)A case referral,specifying the name of the referring authority,suspected crime and main basis,principal person in charge of the case,and contact information,among others.A list of the referred materials shall be attached to the case referral and signed by the referring authority.(b)A case investigation report,specifying the source of the case,investigation and findings,the basic information of the criminal suspect,the facts of suspected crime,evidence and legal basis,and disposition proposals and legal basis,among others.(c)Crime scene inspection (investigation)records,investigative inquiry records,scene inspection and investigation sketch,and sampling records,among others.(d)A list of case-related things,specifying the names,quantity,characteristics,storage places,and other items of the case-related things already sealed up,seized,or otherwise under compulsory administrative measures,with compulsory administrative measures taken,records made on the scene,and other relevant materials indicating the source of the case-related things attached.(e)Crime scene photos or audio or visual records and the list thereof,specifying facts in issue,photographer,the time photos are taken,and the location photos are taken,among others.(f)Monitoring and inspection reports,an environmental emergency investigation report,and determination opinions.(g)Other materials relating the suspected crime.Where an administrative penalty decision has been made against an act violating environmental law,the administrative penalty decision shall be attached.the environmental protection authority that is to refer a case concerning suspected environmental crime shall refer the case materials to the public security authority at the same level and sends a copy of the case referral to the people’s procuratorate at the same level to carry out supervision.In accordance with Articles 33 and 34 of the same act,the environmental protection authority shall upload information about administrative punishment cases to the information-sharing platform for the connection between administrative law enforcement and criminal justice,or promptly notify the public security authorities and procuratorial authorities.18Art.33 of the Measures for Coordination Work Between Administrative Law Enforcement and Criminal Justice in Environmental Protection issued by the Ministry of Environmental Protection,the Ministry of Public Security and the Supreme People’s Procuratorate in 2017:The environmental protection authorities,public security authorities,and people’s procuratorates at all levels shall actively establish and use in a well-regulated manner the information sharing platform for the coordination between administrative law enforcement and criminal justice and gradually achieve online referral,acceptance and supervision of cases concerning suspected environmental crimes.Art.34 of the same act:The environmental protection authorities,public security authorities,and people’s procuratorates that have been connected to the information sharing platform shall respectively enter the following information within seven days from the date of making the relevant decisions:(a)The information of the facts concerning violation of environmental law governed by ordinary procedures,administrative penalty,case referrals,request for reconsideration,and proposals that the people’s procuratorates conduct docketing and supervision.(b)The information of the disposition after the docketing,rejection,revocation upon docketing,reconsideration,and supervision of the docketing by the people’s procuratorates of referred cases concerning suspected crimes and the information of requests for approval of arrest and referral for review and prosecution.(c)The information of supervision of referrals,supervision of docketing,approval of arrest,bringing prosecutions,and adjudicative results.The environmental protection authorities,public security authorities,and people’s procuratorates that have not established the information sharing platform shall notify each other of the information as specified in the preceding paragraph in a timely manner after having made the relevant decisions.In practice,however,the administrative authorities resist the involvement of the procuratorial authorities and do not cooperate actively throughout the investigation.This explains why it is so difficult for the procuratorial authorities to effectively monitor the administrative punishment cases referred by the environmental protection authorities.By reviewing the materials of already settled cases,the procuratorial authorities are unable to verify doubtful issues of cases.In general,the system for procuratorial supervision is still very limited and needs to be further strengthened.

From another perspective,the aforementioned three problems regarding the cooperation between the administrative law enforcement and criminal justice can be concluded as a major problem,that is,the insufficient involvement of public security authorities in environmental protection cases.In other words,most of the matters that are supposed to be investigated by the public security authorities are handed over to the environmental protection departments,leading to an ineffective investigation and poor cooperation in the handling of cases.The environmental protection departments could investigate and deal with pollution activities such as electroplating in small factories very well.However,in the case of the excessive and secret discharge of pollutants by big companies on a large scale,they often have difficulties in dealing with it.Under such circumstances,the public security authorities should investigate the case by themselves or with the help of the environmental protection departments as soon as possible.Only in this way can the facts of the cases be ascertained.In other words,there are still some deep-seated problems in the current connection between administrative law enforcement and criminal justice,but the author would rather refer to it as lacking“environmental police.”The public security authorities have failed to assume the main responsibility for the investigation and prosecution of environmental protection cases,resulting in some cases being overlooked.

D.Other Issues in Judicial Application

There are five controversial issues in the judicial application of the crime of environmental pollution:

1.Disputes over the Meaning of“Disposing”

According to Article 1 of the 2016 ISPCSPP,circumstances that should be determined to“have caused serious environmental pollution”have a lot to do with“discharging,dumping or disposing”of pollutants.How to interpret“disposing”has been a topic of controversy in practice.For example,units and individuals without a hazardous waste business license sold oil products to a shoe manufacturer as raw materials by means of deposing,filtering and extracting oil from hazardous wastes,such as waste engine oil.Is this an act of“disposing”hazardous wastes?Some considered it so,while others did not.Those who considered such an act constitutes as the disposal of hazardous wastes believed that the actor has no qualifications for operating hazardous wastes,but he or she has processed the wastes in a physical way,which is in line with the general understanding of“disposing.”However,those who argued otherwise,believed that the actor has only physically treated the waste engine oil,and the properties of the waste engine oil have not been changed,and there is no evidence to prove that such an act has brought damage to the environment.The“Environmental Pollution Case Involving XIAO Qifeng,LI Honghua,CAI Changchun,SHI Yuyan and CHEN Huaili”19The Environmental Pollution Case Involving XIAO Qifeng,LI Honghua,CAI Changchun,SHI Yuyan and CHEN Huaili,Shanghai No.2 Intermediate People’s Court,judgment number:(2015)No.458.is a case in point.The People’s Judicature,a journal of the Supreme People’s Court,stated in an article that“the defendant filtrated impurities in waste engine oil through oil pumps and oil drums equipped with filters,”which meets the“circumstances for disposing of hazardous wastes”as defined in Article 31(4)of the Measures for the Administration of Permit for Operation of Dangerous Wastes.20WU Siyuan and RONG Xuelei,The Crime of Environmental Pollution Caused by Severely polluting the Environment by Operating Waste Engine Oil Without a License,The People’s Judicature,No.29,2016,p.29.(in Chinese)A similar case also happened in City Y in 2015,where a case was filed for the crime of environmental pollution and initiated a public prosecutionproceeding.However,the court disagreed with the interpretation of“disposing”in this case,and believed that this case might also have involved illegal business crimes.For this reason,no decision was made by the court until the release of the 2016 ISPCSPP.Article 6 of the Interpretation21Art.6 of the 2016 Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Environmental Pollution:Where the conduct of business activities such as collecting,storing,utilizing and disposing of hazardous waste without a Hazardous Waste Permit seriously pollutes environment,the offender shall be convicted and punished by analogy to the crime of environmental pollution;and if it is concurrently punishable as the crime of illegal business operation,the offender shall be convicted and punished according to the provisions on heavier punishment.If the commission of any of the acts as set out in the preceding paragraph doesn’t fall under the circumstances of illegally causing environmental pollution,such as discharging any pollutant exceeding standard and illegally dumping any pollutant,the commission may be determined to be under an illegal business circumstance conspicuously minor or little detrimental and not a crime;and if it is punishable as any other crime such as production and sale of counterfeit products,the offender shall be subject to punishment for such other crime.states that if the disposal of hazardous wastes“does not meet excessive discharge of pollutants,illegal dumping of pollutants or other circumstances that cause environmental pollution in violation of the law,then it can be deemed as illegal operation that is not significant;therefore,it isn’t a crime.”In accordance with this provision,the court ruled it was not an illegal business,yet opinions on the interpretation of“disposing”still differed.In the end,the court considered that the simple treatment of waste engine oil in this case such as precipitation,filtration,etc.,was not an act of“disposing”of hazardous wastes in the sense of criminal law on the grounds that there was no evidence to prove that the treatment has polluted the environment.The prosecutor had already interpreted this case as an act of“disposing”of hazardous wastes during the investigation and evidence collection,while the court,conversely,believed that there was a lack of evidence in terms of whether the act actually polluted the environment.The case was later withdrawn.The dismissal of this case,to a certain extent,makes it even more difficult to fight against similar crimes in the future.

2.Disputes over the Meaning of“Seepage Pits”

Article 1(5)of the 2016 ISPCSPP states that discharging toxic substances through seepage pits will“have caused serious environmental pollution.”The determination of“seepage pits”should be more prudent because once it is determined,the criminal suspect would be held accountable without taking into account the quantity and concentration of emissions.For example,an enterprise rents another company’s factory and uses a drainage outlet in the factory to discharge wastewater,but the outlet later is found not connecting to a sewage pipe.After the exterior wall of the factory is excavated,the outlet is found to be connected to a man-made narrow ditch,which implies that the wastewater is discharged through seepage pits.In this case,could it be determined that the actor discharged wastewater through“seepage pits”? Those who consider that the actor is discharging wastewater through“seepage pits”believed that“discharging wastewater through seepage pits”means that the wastewater is infiltrated into the ground in a secret way.“Discharging wastewater through seepage pits”could have a broader meaning.Wastewater is stored in a reservoir without waterproofing,and the ground that is supposed to be waterproofed is also without waterproofing.Discharging wastewater under the above circumstances should also be regarded as“discharging wastewater through seepage pits.”Therefore,in this case,the renter is discharging wastewater through“seepage pits,”yet those who on the opposite side of the argument believed that the drainage outlet and ditch are both built by the landlord,and the renter,namely,the criminal suspect of this case,is not actually aware that he is discharging wastewater through“seepage pits.”If this is interpreted as having discharged wastewater through seepage pits,and if the enterprise,on the other hand,just dumps the wastewater on the ground outside the factory,is this considered as discharging wastewater through seepage pits?“Discharging wastewater through seepage pits”refers to a pit dug under the ground and that allows the wastewater directly soak into the ground,which is usually completely out of sight.

3.Disputes over the Meaning of“Underground Pipelines”

Although the 2018 Meeting Minutes has clearly pointed out that“underground pipelines”refer to hidden sewage pipelines,there are still disputes over the real meaning of“underground pipelines”in practice.“Underground pipelines”are similar to“seepage pits”in terms of their legal status.Likewise,the criminal suspect would be held accountable immediately without considering the amount and concentration of emissions once his or her behavior is determined as“discharging wastewater through underground pipelines.”The 2014 Meeting Minutes states that“any pipelines that has been installed to get rid of supervision without the approval of functional departments”should be deemed as“underground pipelines.”That is how the disputes over the determination of“underground pipelines”arise.In fact,the 2014 Meeting Minutes merely provides a way for the environmental protection department to identify“underground pipelines”from the perspective of administrative law enforcement,not a way of determining“underground pipelines”from the perspective of criminal law.Judging from the perspective of criminal law,whether the pipeline is set up to“get rid of supervision”is more important.For example,the criminal suspect connected the sewage pipeline to the wastewater discharge outlet without permission.The environmental protection department and the public security authority considered that the sewage pipeline constructed by the criminal suspect could be deemed an“underground pipeline”that“has been installed to get rid of supervision without the approval of functional departments.”However,the procuratorate believed that the evidence is insufficient and whether the“pipeline”is hidden should be determined.“Underground pipelines”differ from“exposed pipelines.”If a pipeline can be seen,then it should be regarded as an“exposed pipeline”rather than an“underground pipeline.”

4.Disputes over the Responsibility of the Person in Charge of the Enterprise

During the investigation of environmental pollution,in cases involving a corporate unit,there are questions over whether the person in charge of the enterprise should bear the legal responsibility.Firstly,when the crime of environmental pollution is committed,whether the persons in charge of the enterprise could be presumed to be informed about the situation and bear criminal responsibility is disputable.For example,personnel from environmental protection departments seized illegally discharged wastewater from workers on an enterprise’s premises,but the workers claimed that the person in charge of the enterprise put them up to it.Conversely,the person in charge of the enterprise denied these accusations and instead blamed the workers,insisting they tried to reduce their workload,motivated by their own actions.Under this circumstance,could it be directly presumed that the person in charge of the enterprise should bear criminal responsibility? In other words,even if no workers are seen on the premises,should the person in charge of the enterprise bear the responsibility? Normally,he or she should bear the responsibility.Secondly,when the persons in charge of the enterprise shirk their responsibility,it is difficult to hold a criminal suspect accountable.In some other cases,people in charge argue that the premises involved was leased out,and therefore claim the responsibility lies with someone else.They insist that they should not be responsible for the pollution caused by someone else.In other cases,the criminal suspect argues that he or she is just a registered legal representative without any substantive rights and not the person who has the final say.If just the legal representative should be punished,business owners would simply replace them with another legal representative.In other words,the person in charge,who has authority within the enterprise,would not be willing to become the legal representative.Whether the person in charge of the enterprise should be held criminally responsible is controversial.Moreover,it is divisive whether the enterprise’s senior leaders,such as shareholders,who like the person in charge,also hold similar stakes and participate actively in the management of the enterprise,should also bear criminal responsibility.

5.Disputes over the Causality Between the Action and the Damage

Most environmental pollution cases are determined based on the concentration of the discharged wastewater,and generally do not involve the determination of the causal relationship between the action and the damage.But for some cases,if the criminal suspect is found guilty in accordance with the provision of“causing economic losses of more than 300,000 yuan to public and private property,”the causal relationship between the action and the damage becomes a key aspect of the case.In the case of an electroplating factory causing environmental pollution,the losses engendered by the death of ducks in the downstream duck farm could be regarded as a consequence of the crime,but there is a large court dispute as to whether there is a causal relationship between the action and the damage.The court,therefore,does not determine the overall amount of losses in the end.How to determine the causal relationship between the action and the damage has been a point of controversy for a long time.Article 5 of Japan’s Act on Punishment of Crime to Cause Pollution Harmful for Human Health features some principles that can help presume the causality,which may shed some light on the determination of the causal relationship between the action and the damage.Specifically,factories discharge harmful substances that may threaten the public health.In the discharge region,if the substances indeed pose a potential safety hazard to the public,then it could be presumed that the hidden danger is caused by the person who discharges the substances.22Hideo Fujiki,Crimes aginst Public Health,translated by CONG Xuangong et al.,Beijing:China University of Political Science and Law Press,1992,p.19.(in Chinese)

III.Suggestions on the Criminal Regulations for the Marine Ecological Environment Protection

As mentioned earlier,problems arise during the investigation and punishment of environmental pollution cases.These problems also occur in preventing and controlling the marine environment from being polluted by land-based pollutants.These environmental pollution cases cause huge damage to the land and water of City Y,and destroy not only the water but also the ecological environment.For coastal cities like City Y,the marine ecological environment,especially the coastal marine ecological environment,could be protected from the following two aspects:first and foremost,great importance should be attached to the prevention and control of pollution damage to the marine environment caused by pollutants in coastal cities,particularly preventing and controlling land-based pollutants;secondly,from the perspective of criminal regulation,the top priority is to settle the disputes in the investigation and prosecution of environmental pollution cases.

A.Upholding a strict Criminal Policy

“‘Crackdown’ is in line with the principles of the socialist rule of law.”23MA Kechang,Research on Criminal Policy of Temper Justice with Mercy,Beijing:Tsinghua University Press,2012,p.82.(in Chinese)Since the 18th National Congress of the Communist Party of China,the Party Central Committee with President Xi Jinping as the head has attached great importance to the construction of an ecological civilization.The construction of an ecological civilization has been incorporated into the“five-sphere integrated plan.”China has amended its environmental protection laws,fisheries laws,as well as other laws and regulations.With the implementation of these new laws,China has made its legal system for the protection of marine ecological environmental resources the most rigorous one and insists on carrying out a zero-tolerance attitude towards serious criminal activities that harm society.The fight against environmental pollution crimes has started since 2013 when the ISPCSPP came into force.The 2014 Meeting Minutes has promoted a rigorous and harsh criminal policy for cracking down on criminal activities,which states that“generally,it should be approved to arrest the target personnel,and for those who have been arrested,they should be subject to compulsory measures and should not be applied to probation.”In 2015,the Supreme People’s Procuratorate of the PRC proposed to launch two special supervisory activities across the board,including the“Special Supervision on Cases Involving Crimes of Destroying Environmental Resources,”which ended in 2018.City Y has launched activities to supervise cases involving the marine ecological environment.Both the water quality of the rivers and the condition of the marine ecological environment in City Y have significantly improved as a result of the supervisory activities.However,the marine ecological environment in Y Bay still remains grim as a whole.In the short term,a strict criminal policy still needs to be taken as an“emergency measure.”24WANG Hongyu and LI Mingqi,Reasonable Thoughts on the Criminal Policy of“Temper Justice with Mercy”and“Crackdown”,Journal of Chinese People’s Public security University (social science Edition),No.2,2011,p.58.(in Chinese)Most of the investigated cases concerning environmental pollution are focusing on the discharging of“toxic”wastewater.But other areas,such as the disposal of hazardous wastes,should also be cracked down on.The illegal discharge of wastewater exists in everyday life,including wastewater that contains heavy metals being discharged from dental clinics.The wastewater pipelines of automobile cleaning facilities are not connected to urban sewage pipelines,and the wastewater discharged by seafood processing enterprises contains excessive nitrogen and phosphorus.Wastewater that contains heavy metals is discharged in a large quantity,but it does not exceed the national discharge standards.Combined with no criminal regulations against such discharge of wastewater,it is difficult to crackdown on.However,wastewater discharged in this way could easily result in environmental degradation,such as the eutrophication of water bodies.Therefore,criminal regulations against wastewater discharged in such a large quantity are needed.

B.Regularly Holding Joint Meetings to Resolve Difficulties in Judicial Application

The disputes over the judicial application of cases that damage marine ecological environments,such as cases of environmental pollution crimes,could be settled through cooperation between the public security authority,the procuratorate and the court.In the short term,these three authorities should invite the environmental protection departments and the marine fishery departments to participate in their regular joint meetings so as to reach an effective consensus on the solution.The following are suggestions for resolving these controversial issues in terms of judicial application:(a)environmental pollution cases involving the determination of subjective aspect should be handled on a case by case basis.For example,workers from an enterprise which has a formal license to discharge wastewater argue that they do not intentionally discharge wastewater on the grounds that the sewage discharge facility breaks down,causing unintentional discharge.Under such a circumstance,law enforcement officials must talk to relevant workers and cordon off the scene as soon as possible.Meanwhile,they should also notify the public security authorities to collectively obtain evidence.They should carefully collect evidence,ensure crime-scene pictures are taken,and obtain video footage if there are cameras installed at the scene.Records such as procurement details and output details of raw materials for wastewater treatment should also be obtained in order to objectively consider whether the wastewater treatment conforms to the national standards.(b)An operational norm should be issued to regulate the process of collecting evidence for environmental pollution crimes.The operational norm should cover all kinds of aspects,including the subject,place,and procedure for the obtainment of evidence,the issuance of the inspection report,the signature of the onsite witness or the party concerned,the onsite recording and the video recording,and the onsite inspection.The procedure for obtaining evidence in the Opinions on Standardizing the Procedures for Drug Extraction,Seizure,Weighing,Sampling and Inspection for Handling Drug Crime Cases,which was published by the High People’s Court of Zhejiang,the People’s Procuratorate of Zhejiang and Zhejiang Provincial Public Security Department,could use for reference when formulating specific items in the operational norm.(c)“Seepage pits”and“underground pipelines”need to be interpreted clearly.Both“seepage pits”and“underground pipelines”are built with the intention to avoid being supervised.They should be determined based on whether they are built with the intention or not.“Seepage pits”can be physically seen.Environmental protection departments’ daily inspections should be taken into consideration when determining whether the wastewater is discharged through“seepage pits”or“underground pipelines.”If environmental protection departments could visually see the discharge outlets and pipelines during their daily inspections,the outlets and pipelines should not be determined as“seepage pits”or“underground pipelines.”(d)The principle applicable to presume the responsibility of the person in charge of the enterprise should be clarified.For environmental pollution cases involving legal entities,the person in charge of the enterprise has to undertake the criminal responsibility and should be subject to the principle of“presumption”to obtain evidence in criminal activities.25For the concept and function of“presumption”,please refer to CHEN Ruihua,Criminal Evidence Law,Beijing:Peking University Press,2014,pp.321～ 333.(in Chinese)And it could be presumed that the person in charge of the enterprise should have known the situation and should bear the responsibility if he or she does not have a reason.For enterprises with actual controllers,the legal representative should bear the responsibility,but aside from that,the actual controller should also bear the responsibility.(e)The causal relationship between the action and the damage could be determined by the adequate causality theory.The term“adequate causality”refers to make a general investigation of things based on our social life experience.If a certain act is considered to produce a certain result,the act and the result are generally considered to be causal.26CHEN Jialin,The General Theory of Foreign Criminal Law,Beijing:PHCPPSU,2009,p.200.(in Chinese)Specifically,the causal relationship between the action that causes environmental pollution and the damage could be determined based on various factors,such as the actor’s production processes,material ingredients,sewage facilities,surrounding environment,and investigation tests.(f)The method of determining criminal cases involving environmental pollution based on the number of pollutants should be unified.And the connection mechanism for criminal cases and public interest litigation cases should be improved thereby.For example,the total of discharged wastewater could be calculated based on the total production days and the number of pollutants discharged each day.And the number of pollutants discharged each day could be determined through the investigation on water consumption,the analysis of production processes,the input of raw materials,the confession of criminal suspects,the testimony of witnesses,etc.

C.Promoting the Coherence Between Administrative Law Enforcement and Criminal Justice

As it is stated clearly in the 2001 Provisions on the Transfer of Suspectable Criminal Cases,if the administrative law enforcement department finds that illegal acts might be suspected of constituting a crime and the criminal suspect should bear criminal responsibility according to the law,then the suspectable criminal case must be transferred to the public security authority in accordance with relevant provisions.27Art.3 of the Provisions on the Transfer of Suspectable Criminal Cases by Administrative Organs for Law Enforcement issued by the State Council in 2001:Where,in the process of investigating illegal acts,and on the basis of the amount of money involved in,the circumstances of,and results caused from the illegal facts,an administrative organ for law enforcement suspects that a crime is constituted and the criminal liabilities are to be investigated into in accordance with the provisions in the Criminal Law on crimes of disrupting the order of the socialist market economy and crimes of obstructing the administration of public order,and the judicial interpretations of the Supreme People’s Court and the Supreme People’s Procuratorate on the crimes of disrupting the order of the socialist market economy and the crimes of obstructing the administration of public order,as well as the provisions of the Supreme People’s Procuratorate and Ministry of Public Security on the standards for prosecuting economic criminal cases and other provisions,it must transfer the case to the public security organ according to these Provisions.The 2011 OSC has further put forward the need to“improve the mechanism on work cooperation.”Since then,many departments have successively issued guidance on strengthening the cooperation between administrative law enforcement and criminal justice.The 2017 MCW issued by the environmental protection department is a case in point.There are many regulations on environmental protection no matter in administrative law enforcement or in criminal justice,while it is still difficult to achieve a coherent cooperation between the two in practice.In order to strengthen the cooperation between administrative law enforcement and criminal justice,the following three aspects need to be strengthened.

Firstly,the cooperation method should be specified so as to establish a longterm mechanism.Regardless of the case being an environmental pollution crime or an administrative case,it should be first accepted,reviewed,and then filed or refused.That’s how a case is handled in the cooperation mechanism.However,the procedure on the acceptance of a case varies from place to place.Generally,local regulations do not specify methods for receiving cases.Cases should be transferred between the administrative authority and the public security authority,but actually the cases are transferred just between two people working within the two authorities.No standardized process of transferring a case exists.Therefore,the public security authority should set up special processing windows to accept cases transferred by the administrative authority and to issue receipts once a case is received.A written report on reasons for dismissing the case or an outline for supplementary evidence should be issued if the public security authority finds the evidence and materials insufficient after reviewing the case.28GENG Gang,FAN Changlong,et al.,The Connection System of the Administrative Enforcement of Law with Criminal Justice of Law—In the Perspective of Program Connection,Administration and Law,Vol.2,2011,p.103.(in Chinese)However,the administrative law enforcement authority has the final say on the transferred case.That is to say,if the public security authority does not accept the case on the grounds that the evidence and materials are insufficient,the administrative authority could ask the public security authority to accept the case if it couldn’t accept the reason for dismissing the case issued by the public security authority.In this instance,the public security authority should accept the case.After receiving the case,the public security authority may conduct an initial investigation.If,after the investigation,it still does not meet the requirements for filing a case,the public security authority may issue a notice of dismissal and return it to the administrative authority.After receiving the notice,the administrative authority may also request a review from a higher-level public security organ or apply to the procuratorial organ at the same level for supervising of the case.

Secondly,greater investment in people,properties,and materials is needed to sustain the cooperation mechanism.The information-sharing platform for administrative law enforcement and criminal justice29YUAN Ming,Theory and Practice of the Connection Between Administrative Law Enforcement and Criminal Justice,People’s Procuratorial semimonthly,Vol.12,2011,p.119.(in Chinese)should be properly managed as it is a key control measure to promote the effective communication between administrative law enforcement and criminal justice.Some places have established the information-sharing platform for administrative law enforcement and criminal justice and provide instructions on how to properly manage it.However,problems still exist when it comes to the management of the platform,including poor operation,data information not being updated,and records on cases not being uploaded.To build the platform into an information center for administrative law enforcement in relation to environmental protection,problems existing in the process of information sharing should be resolved,and investment in manpower,funds,facilities,etc.should also be increased.Furthermore,materials concerning administrative punishment should be uploaded in time to undergo scrutiny by public security authority and the procuratorial authority.At the same time,the information on the administrative penalty decision should be made public on the platform so as to accept social supervision.

Thirdly,all the authorities must rely on the party committee and the government to work collectively for the whole State.The work related to environmental protection,no matter in terms of administrative law enforcement or criminal justice,covers a wide range of areas and involves many issues.No breakthroughs can be made without the support of the party committee and the government.In practice,the procuratorial authorities should promptly report to the party committee,the government,the National People’s Congress and the Chinese People’s Political Consultative Conference at local level and carefully listen to their opinions.The procuratorial authorities should bear in mind that they should work for the whole State and should try their best to promote the cooperation between administrative law enforcement and criminal justice.