论环境公害案件的刑法规制——以水污染致癌的归责为切入点

水污染致癌作为环境公害犯罪的典型代表,应以以危险方法危害公共安全罪处罚。传统的条件说无法排除水污染以外的致癌因素,疫学因果关系要求被告人举证倒置,无法适用到中国的刑法领域。为达到"排除合理怀疑"的证明标准,需借助客观归责理论中的危险升高理论来进行环境公害案件的客观归责。现代刑法理论中的"故意"呈客观化趋势,可根据客观证据认定被告人主观上具有故意及证明被告人有不法认识可能性,从而完成环境公害案件的主观归责。

On Criminal Regulation of Environmental Hazard Cases——Starting from the phenomenon of cancers resulted from polluted water

The phenomenon of cancer villages as a result of polluted water is a typical type of environmental hazard crimes,which should be punished by the crime of endangering public security by dangerous means.Traditional theory of condition can not exclude other factors that may devote to cancers except polluted water.Causal relationship of epidemiology that requires the inversion of burden proof can not be used in Chinese criminal law field,either.In order to meet the standards of beyond reasonable doubt,the prosecutors could use the theory of increased risk for objective imputation.Intention becomes objectification in modern criminal law theory,so the prosecutors could prove the defendant had intention by objective evidences.The fact that the defendant had possibility to know that his action was illegal is also the object of proof.