涉林刑事案件非刑罚处罚措施的选择与适用

从非刑罚处罚措施对刑罚措施的替代适用、辅助适用以及与刑罚措施的同时适用等方面,阐述了非刑罚处罚措施在涉林刑事案件中的适用现状;分析了非刑罚处罚措施在涉林刑事案件中适用的法律依据、主体选择、标准选择以及监督机关选择等难题及其原因。通过案例分析和规范分析发现:在涉林刑事犯罪案件的具体司法实践中,以非刑罚处罚措施补充或替代刑罚处罚虽具有很强的针对性和较好的社会效果,但在适用依据、选择标准、实现方式等方面尚不明确。因此,建议通过健全涉林刑事案件非刑罚处罚措施的适用依据,制定涉林刑事案件非刑罚处罚措施的适用标准,确定涉林刑事案件非刑罚处罚措施的适用主体,明确涉林刑事案件非刑罚处罚措施的监督主体,以便推进在涉林刑事案件司法审判中非刑罚处罚的实践创新逐渐形成稳定的制度,完善涉林刑事案件非刑罚处罚措施的适用规则。

Selection and Application of Non-Penalty Punishments in Criminal Cases Involving Forest

⑴ Background——Forest resources not only have strong economic value,but also brings high ecological benefits. Driven by economic interests,it appeared a lot of criminal cases involving forest which need judge in judicial procedure in the court. In environmental justice practice,it is a trend of taking non-penalty punishment measures to supplement or replace criminal penalties in order to restore the ecological environment. So the nonpenalty punishments will play more and more important role in forest ecological environment restoration and remediation. But how to provide applicable gist,selection criteria and implementation model remains to be further clarify. Otherwise,it will be difficult to wrestle with the current severe situation of the crimes related to forest.⑵ Methods——This paper uses the method of normative analysis and cases analysis: normative analysis is applied to measure whether non-penalty method as a way of alternative penalty measures is complied with Chinese positive law. The application of cases analysis can help us summarize some valuable experience and identify the existing problems from the cases in judicial practice.⑶ Results——There are 4 issues occurred in the application of non-penalty punishments in criminal cases involving forest: Firstly,the existing legislation cannot provide a clear legal basis for new non-criminal punishment. The administrative obligation is imposed by the court in criminal procedure rather than by the forestry department in administrative punishment procedures,it also tends to be controversy about the legitimacy of criminal justice responsibility for environmental damage restoration; Secondly,There is no specific provision in the law for the criminals applying the non-criminal punishment measures. So when faced with the similar cases,there is enormous variation in assessing punishments by non-penalty stead of penalty,it also has brought the confusion in judicial practice. Also the judicial justice will be questioned because of different punishments to the same crimes.Thirdly,what criteria should be applied to non-penalty measures is another major issue,the prerequisite is using forestry expertise to determine the extent of crime,then see if there are any other the plots of cases for considering the application of non-penalties in sentencing. Fourthly, non-penalty punishment measures are not mostly often be accomplished in the short term. Who can be chosen to supervise and monitor? What is the basis of selecting the main body of supervisor? How to solve the contradictions may have created among different supervisory bodies? All of these questions must be clarified in judicial practice.⑷ Conclusions and Discussions——It is suggested to perfect the applicable rules and applicable standards for non-penalty punishments about criminal cases involving forest in order to promote the practice innovation of non-penalty punishments in judicial trial of criminal cases involving forest. This paper put forward 4 suggestion: Firstly,it is necessary to expand the relevant legal contents and to improve the basis for the application of non-criminal punishment measures so as to obtain a more clearly reasonable position for non-penalty punishments of criminal cases involving forest in the judicial practice. Gradually,it is incorporated into the legislation to promote the standardization of non-penalty punishments in criminal cases involving forest. Secondly,judicial authorities should carefully consider the serious differences economic situation of each offender in each region,when selecting the non-penalty punishment measures. Thirdly,government should take all factors into account,set scientific application standards and make a reasonable assessment so as to enable non-penalty punishment measures applicable to the forestry criminal cases. Fourthly,government should select the appropriate supervisor for implement of non-penalty punishment measures,make analysis,get summary experience,make a reasonable supervision system,and perfect the supervisor's functions and powers.