我國環境刑法之再建構－以廢棄物清理法為中心

Abstract

我國環境刑法近期的發展，是在2018年修訂刑法第190條之1，主要是將犯罪類型由「具體危險犯」改為「抽象危險犯」，並加重刑罰以遏止環境犯罪。修法的過程中，立法委員所提出的草案提及應師法德國，區分環境媒介分別訂立條文，然而，最終通過的版本是不分環境媒介，將水體、空氣以及土壤等規範於同一條文，引發學界與實務上的討論。 由於我國實務上對於環境犯罪，多數適用法條均以廢棄物清理法為主，適用刑法第190條之1的數量甚少，究竟修法過後對於改善環境犯罪是否具有實益，抑或者改善環境刑法應從總體檢討而非更動單一條文，是有待釐清的問題。 對此，本文透過比較德國、日本立法例，整理並分析出適合我國之環境刑法體系，結論上本文認為應將刑法第190條之1刪除，新設置「環境犯罪法」，並且全面修訂相關環境附屬刑法，本文以廢棄物清理法為例，深度分析實務上存在之問題，重新擬定更適合我國之環境刑法。

The recent development of Taiwanese environmental criminal law was the revision of Article 190-1 of the Criminal Law in 2018, which mainly changed the type of crime from " Crimes constituted by concrete endangerment of legal interests " into " Crimes constituted by abstract endangerment of legal interests " and aggravated the levels of the penalties to deter environmental crimes. In the process of amending the law, the draft was proposed by one legislator, suggesting that the new law should refer to the German law to distinguish environmental media between different kinds of environmental mediums and make separate laws. However, the final edition, adopted no distinction between environmental mediums and but regulates water, air, and soil into a same provision, which inspired the discussions between the academic community and also the judiciary. As domestic judicial practice about environmental crimes, most of the applicable laws were based on the Waste Disposal Act, and Article 190-1 of the Criminal Law was applied in a small number. Would the amendment of the criminal law be efficient to reduce environmental crimes, or whether the amendment should be done in a more general perspective, rather than making one change by another to clauses. In this regard, this paper compares the legislation of Germany and Japan to analyze and sort out the best environmental criminal law system to fit in the local conditions. In conclusion, this article believes that Article 190-1 of the Criminal Law should be deleted, a new "Environmental Crime Law" should be established, the relevant environmental law should be comprehensively revised, along with other subsidiary environmental criminal laws. This paper takes the Waste Disposal Act as an example, deeply analyzes the existing problems in judicial practice, and reformulates the environmental criminal law that is more suitable for Taiwan.