中国人口·资源与环境2025，Vol.35Issue(9)：108-119,12.DOI:10.12062/cpre.20250612
论违法行政行为对破坏环境资源保护犯罪认定的影响
Impact of illegal administrative acts on convictions for the crime of damaging environment and resources
摘要
Abstract
Administrative acts towards specific counterparties are pivotal in determining whether the crime of damaging environment and resources is established.When such acts violate environmental administrative laws,how their illegality affects convictions has be-come a contentious issue in both academia and judicial practice.The response to this issue influences the quality and effectiveness of environmental crime governance.Starting from the empirical analysis of judicial precedents and using the typological thinking,compar-ative research method,and normative analysis paradigm of criminal dogmatism,the following conclusions can be drawn:① When ille-gal administrative acts appear as constituent elements of a crime,such as administrative license or penalty,the eligibility of these con-stituent elements should be denied so that the original function of administrative acts to decriminalize or criminalize will be invalid.This is due to the fact that an illegal license is"unable to ensure that public benefits of the environmental utilization are no less than damage that may be caused,"and an illegal penalty"cannot use the behavioral negative value reflected by violating environmental laws with intention to fill the insufficiency of consequential negative value in criminalization."However,for the circumstance of illegal li-censing without the counterparty's fault,it is still necessary to deny the proof of criminal intent to protect trust interests.② When ille-gal administrative acts appear as illegal omissions of licensing or penalizing:For the situation where a license should have been granted,the actor should be exonerated under Article 13 of the Criminal Law of the People's Republic of China,based on the substantial preven-tion of the damage to legal interests;for the situation where a penalty should have been imposed,the actor can only be acquitted for the lack of conformity to constituent elements;courts cannot break through the normative boundary merely because the substantial condi-tions of conviction are met.③ When illegal administrative acts appear as notification,guidance,tolerance,etc.,which are factual fac-tors that determine whether constituent elements can be proved,given the de-damage and morally neutral design of such crime,the rec-ognition of illegality cannot be naturally generated by the feeling of physical damage to legal interests.In this case,administrative agen-cies use illegal administrative acts to convey erroneous information that counterparties'acts are legal.Therefore,it is necessary to ac-knowledge that this will hinder the counterparties'recognition of administrative illegality,thus making it impossible to prove criminal intent.关键词
违法行政行为/破坏环境资源保护犯罪/行政行为公定力/构成要素适格性/违法性认识Key words
illegal administrative act/crime of damaging environment and resources/public binding force of administrative acts/eligi-bility of constituent elements/recognition of illegality分类
社会科学引用本文复制引用
李正源..论违法行政行为对破坏环境资源保护犯罪认定的影响[J].中国人口·资源与环境,2025,35(9):108-119,12.基金项目
国家社会科学基金一般项目"积极预防主义视野下生物安全风险的刑法规制研究"(批准号:21BFX177). （批准号:21BFX177）
