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Strenghtening the Korean Criminal Justice System Applying Forensic Science (Ⅶ): Response to Environmental Crime in the Time of Climate Change Crisis
Language
Korean
Authors
, , , ,
Date
December 01, 2016
ISBN
979-11-87160-23-6

Abstract

Throughout approximately 4.6 billion year history of the planet earth, the environmental condition has constantly changed with glacial-interglacial oscillations. The climate changes in the past used to be caused by volcano eruption, changes in solar activities, and interaction among the natural elements and develop gradually, but the climate changes in the present, which often becomes a popular subject of discussion among the contemporaries, occur rather abruptly over short periods of time and consequently raise concerns among the general public. Rapid climate change is a serious issue in that it does not provide the human being with sufficient time to adjust and therefore not only causes huge economic losses but also can endanger people’s life or health. The critics point out that as the industrialization began in full scale, the amount of fossil fuel used to run production facility increased, and the changed lifestyle of the people, enjoying the benefits of automobiles and heating system, led to increase of carbon emission, which in turn, has increased global temperatures artificially. In particular, as emission of greenhouse gases, which is considered as the main cause of climate changes, is related to the issues of air pollution, it is necessary to review overall environmental crimes, including the crime of air pollution in this time of climate change crisis. To overcome the challenges of climate change, a global issue, a response strategy in various areas should be sought and criminal justice is not an exception. In the last, environmental crimes used to be governed by administrative regulations due to its unique characteristics that the violation is indirect and proving causation is difficult. Even when criminal sanction was applied, it was only as a complementary measure to support the administrative regulations. However, development of scientific technology can establish the causal relationship, which used to be impossible to prove. As studies on what sort of results are caused by certain violation of environment are conducted and published continuously and many people endure the damages caused by environmental crimes in these days, criminal justice should take an active stance toward environmental crimes. In the United States, the characteristics of legislative penalty that applies to environmental crimes are not emphasized publicly, but instead the regulations that punish typical infringement of property crime or false statement are used well in dealing with environmental crimes. Moreover, in some states of the US, environmental courts that exclusively listen and adjudicate disputes related to environmental issues are installed and it is noticeable that they were introduced without additional physical foundation but by focusing on the courts’ functionality. Meanwhile, the US Environmental Protection Agency(EPA) secures both strict control over environmental accidents, and professionalism and continuity of investigation through the structure of the organization and the recruitment process of human resources. Also, it applies punitive damages to violation of environmental laws and regulations. In Germany, it is characteristic that the Criminal Act includes the provisions concerning environmental crimes. In relation to the fact that environmental laws are incorporated into the Criminal Act, some criticize that due to its format subordinative to administration, flaws are detected in the process of law enforcement and therefore it does not perform its intended function as environmental criminal law. However, as environmental crimes are prescribed in the Criminal Act, both the general public and the criminal prosecutorial organizations could recognize the rules clearly and as a result, not only reports of environmental violation by the people but also guilty verdict over environmental crimes by the courts tend to increase. Meanwhile, in Germany, in order to make up the flaws in enforcement of environmental criminal law, a cooperative model between investigation agency and administrative agency. In 2006, in the Department of Environment of the state of Nordrhein-Westfalen, Environmental Crime Bureau(Stabsstelle Umweltkriminalität) was established. The Environmental Crime Bureau forms a comprehensive network encompassing various government offices and organizations that handle environmental crimes, and invite former police officers or prosecutors, in addition to the public servant in environment adminstration area, to participate in as member of the Bureau to reflect the perspectives of investigation agencies and criminal prosecutorial organization even to the administrative work process. Through this comprehensive network, the Environmental Crime Bureau has increased the number of guilty verdicts over environmental crimes and is considered as a success model that the administrative and investigation agencies cooperate. In Japan, major environmental crimes are prescribed in the Special Environment Codes and the rest are dealt with by the Environment Adminstration Law, which is similar to our legislation scheme. This system is under the criticism that effects of prevention and deterrence are not as strong as the Criminal Law provisions, the rules of punishments over environmental crimes are scattered, and it is difficult to prepare a general provision. From this criticism, some people have even suggested that in order for the environmental criminal law scheme to comply with the national sentiments, penal provisions for environmental crimes should be integrated to the Criminal Law Codes, the nature of which is more ethical. In the meantime, more recently, an argument to institute an independent environmental law code is raised strongly. This method, which seeks to improve the law’s deterrence function by establishing a separate criminal law chapter inside the environmental law code, intends to prescribe environmental crimes not through the Criminal Law Codes but through the Special Criminal Law Codes and thus is expected to prescribe not only administrative environmental crimes but also non-administrative and independent environmental crimes with clear terms. In China, as the Criminal Law Codes are revised in its entirely in 1997, the environmental crime provisions which used to be diversified were now unified under the Criminal Law Codes. Through the revision at this time, subjecthood of environmental crimes by a group of unit, such as companies and corporations, was recognized, and the degree of punishment became stronger along with the expansion of the objects of environmental crime punishment. The critics evaluate that the legislative direction displayed in the revision was scientific and reasonable. As China suffers from serious environmental pollution due to rapid industrialization and urbanization, the government enforces the most powerful and strict environmental protection laws in history. To improve the efficiency in enforcement of the regulations, a strictly impartial system has been created which strengthens the authority of the relevant government offices and can impose not only the sanctions such as production restriction or cessation, but also administrative detention on the bodies that violate the environment law. Also noticeable is that by structuring a collaborative organization between the environment protection offices and the national security agency, and a connection system to deal with environmental crimes, if an accident involving serious environmental pollution occurs, the government can operate prompt investigation and secure evidence. In Korea, as there exists a lack of public awareness of environmental crimes, the necessity to review the current way to legislate environment-related crimes becomes more urgent. A variety of suggestions can be made as to whether a separate legal code would increase prevention and deterrence effects on environmental crimes, or integrating environmental regulations into the current Criminal Act scheme would be a more efficient and complete measure to handle the matter. Degree of criminality and the manner to punish environmental crimes are affected by the level of awareness and judgment over the impact and importance of those crimes in a country, and as such the regulating manners are different across the world with unique advantages and disadvantages in each country. However, there is a common legislative tendency to avoid punish environmental crimes in early stage by organizing them under environment-administrative laws, which are prone to be more technical, nevertheless to take more active measures for serious environmental crimes that could cause immense casualties. In Korea, too, given the state of control and punishment of environmental crimes, it is necessary to change the current way of legislation. In this context, by reorganizing the types of environmental crimes under the Criminal Act thus to improve the deterrence effect and efficiency of punishment. In the meantime, it is necessary to seek a legislation policy concerning investigation and court trial concerning environmental crimes. In detail, first, in order to increase the efficiency of investigation and trial, environment-specialised public prosecution office system(Schwerpunktstaatsanwaltschaft) can be actively used. For this, the issues of jurisdiction should be settled first. Furthermore, due to difficulties in proving the causal relationship in a crime, prosecution and punishment are often impossible in the majority of cases, which is a result signifying a considerable gap from the public sentiments. In the past, the rule of presumption concerning the punishment for environmental crimes was sometimes criticized as contradicting to the presumption of innocence pursuant to the Constitution. However, it could be more effective to prepare a new rule of presumption for the causal relationship under certain conditions, with consideration of the special characteristics of environmental criminal laws. Moreover, as environmental crimes become more tricky and shrew in methods and occur in broader areas, it is necessary to encourage whistleblowing. Further, since one of the main reasons that environmental crimes would not decrease is that benefit of enduring punishment is greater than disadvantage of criminal punishment, it is necessary to consider raising the maximum penalty, in both imprisonment and fines, and a comprehensive review on weighing of an offence, such as fines, in corporate punishment. In addition, it is required to diversify the sanctions in a manner that secures the appropriateness of punishment, expands the system to forfeit the proceeds of crime, and introduces vocational prohibition. Scientific assessment is important in the process of investigation of environmental crimes and determination of a crime. Therefore, advanced scientific technology should be actively adopted in the response measures to environmental crimes. Given that, the current study has sought specialization and scientification methods in investigation and court trial stages, and suggests that an intensive body to take an exclusive charge of environmental crimes be organized in order to improve professionalism. For effective and systematic responses toward environmental crimes, a unified expert body that can control and encompass the scattered investigation structure is necessary. In this context, the Ministry of Environment launched the Central Environmental Criminal Investigation Team, recently in cooperation with the Ministry of Justice. Launching of the Central Team is evaluated as progress under the current condition that the local governments’ rights to control environmental crimes are not properly exercised; nevertheless, to improve the efficiency, infrastructure in both physical and human resources aspects should be reinforced. Moreover, considering the fact that even though environmental crimes are serious crimes that affect not only the health of the general public but also the life of the future generation, prosecution or punishment on the discovered crimes has not been sufficiently exercised, it is more apparent that utilizing the environment - specialised public prosecutors’ office system to integrate investigation capacity of the law-enforcement is necessary. Meanwhile, with the crisis of climate change being heightened, as various enforcement measures are sought, including as Carbon Emissions Trading Scheme or carbon tax etc., it is anticipated that complex legal issues surrounding these measures would arise in the future. In this context, this study suggests introduction of environmental courts which can handle not only environmental issues, but also civil, administrative, and tax disputes related to environmental issues, as well as domestic conflicts arising from enforcement of international treaties. Further, also required are a close review of the quality and knowledge of the environmental special judicial police who have authority to control and investigate violation of laws in special areas, and inspection of management system. In this regards, first, working environment in which the special judicial police on environmental issues can fully occupy themselves with their job, that is, control and investigation, should be improved. A management and monitoring system to assist these special judicial police’ work should be refined, as well. In addition, education programs to enhance the professionality of these police should be developed. A method to select the environmental special judicial police through a separate recruitment, or installation of an office that can take charge of scientific and technical supports required in research and investigation process, as well as legal and policy advices can be considered, too. In environmental crime cases, the modus operandi of crimes become more complex that discovering the crime or proving it in trial are more difficult than ever. As forensic investigation has developed as an indispensible factor in the modern criminal proceedings, forensic devices should be actively utilized in fact-finding process during investigation and trials. Tele-Monitoring System (TMS), an exemplary device used in controling environmental crimes, has received positive reviews that it has radically decrease pollutants through a regular monitoring system and has established a scientific administration system by enhancing transparency in monitoring and supervision over the companies that discharge waste materials based on objective data. At the same time, some downside has been also noticed that TMS is expensive in installation at the beginning and management in each passing year, and that the companies discharging waste materials can manipulate the measuring sites and conditions. As an alternative, therefore, utilizing drones should be considered affirmatively, as they are is less expensive in management and enables to install measuring network in motion. In short, if we use a drone equipped with air pollution sensor or high-definition filming device in full scale, we could promote speed and efficiency in investigation. Naturally, there is a risk of violating privacy in drone usage; nevertheless, we can differentiate the degree of expectation of privacy between the corporation/business entities and the individuals, with different weight. For the companies discharging pollutants, legislation to control in administrative aspect by using drones can be possible. In detail, the law may arrange that in principle, the law enforcement agencies should obtain a court warrant to use drone, but for monitoring or investigating violation or suspected violation of environmental regulations, an exception may be permitted. Meanwhile, in court trial for environmental crimes, expert witness and testimonies are often required during the prosecution’s efforts to prove the causal relationship of the matter. In the present era where scientific knowledge and information are shared widely, debate in environmental crimes are not limited in domestic level. For instance, a judge who sits for a certain environmental case can wish to listen to internationally renowned expert witnesses directly from his courtroom. For such cases, using the videoconferencing system can be discussed to develop in order to overcome the challenges in terms of time and costs. Since international judicial assistance in criminal matters should be enhanced to materialize this videoconferencing system, it is necessary to add provisions concerning investigation and examination of witnesses using the videoconferencing in judicial proceedings when signing an international cooperation agreement or revising an existing agreement in the future. Further, it is recommendable to establish a scientific and systematic database by collecting diverse environmental information, and based on the system to utilize big data analytics in full to prevent environmental crimes. In addition, artificial intelligence can be used based on a scientific and systematic database. In this regards, upon occurrence of an environmental crime, if artificial intelligence identifies the sources of pollution, the causal relationship of the crime would be proved clearly and further crimes could be prevented more effectively. Every one agrees that environmental protection is necessary in our time. However, due to comprehensive, general and uncompleted nature of the concept of environment, norm consciousness of the subjects of environmental laws is low and the analysis of action economy toward economic benefits can be distorted in environmental issues. Environmental crimes have some salient features, such as difficulty in monitoring and prosecution, limitation in proving the causal relationship of the crime, and possibility of early stage prevention through abstract endangering offense, and as such involve the issues that cannot be solved by traditional criminal law measures alone. Moreover, the nature tends to be highly administrative subordination-oriented that only a few cases are punished through expert and technical interpretation of the laws, separated from the general criminal codes, creating more difficult situations. A lack of attention or even abandonment of situation would result in not only environmental destruction and damages to our ecology system, but also threats to life, persons, and health of humanity. Environmental issue in criminal justice aspect have been regarded as a trite subject, which was concluded already about 10 years ago. However, environmental crimes are a transnational global issue, crossing jurisdictional borders, and they risk the rights and benefits of the future generations. As the remarks of Leonardo DiCaprio, an actor, “let us not take this planet for granted”, we should not take previous discussion about environmental crimes for granted, but instead seek a new paradigm for criminal justice theory to respond efficiently to environmental crimes. We should start a new discussion to change the human-centered concept, inherent in the criminal laws, to ecologyoriented concept that would promote harmonious development of the humanity and the nature. Hopefully, this paper could serve the purpose and possibilities.

Jeeyoung Yun

Public Safety and Crime Prevention, Criminal Law&Policy

Senior Research Fellow

Jeeyoung Yun's picture

Research Interest (Major)

Criminal Law, Criminal Procedure, Criminal Policy

Report List

A Study on the Criminal Appeal

Strenghtening Korean Criminal Justice System Applying Forensic Science (Ⅷ): Artifical Intelligence Technology

The Criminal Justice Response and Development Strategy in the Age of the Fourth Industrial Revolution (Ⅰ) Autonomous Vehicle and Drone

The Criminal Justice Response and Development Strategy in the Age of the Fourth Industrial Revolution (Ⅱ) : The Internet of Things(IoT) and Blockchain

Pre-Sentence Investigation in Korea

Enhancing the Human Rights Support of the Ministry of Justice in Korea

Public Participation in the Preceding Stage of a Criminal Trial

Evaluation of Criminal Law Legislation by the 20th National Assembly and Further Challenges

The Criminal Justice Response and Development Strategy in the Fourth Industrial Revolution (Ⅲ) : Virtual Reality(VR) and 3D Printing

Application of Videoconferencing System in Criminal Proceedings

Strengthening the Forensic Science in Korean Criminal Justice System(Ⅳ)

Strenghtening the Korean Criminal Justice System Applying Forensic Science (V)

A Study on the Criminal Liability of Companies Profiting from Illegal Activities

UN∙International Cooperation and Research for Crime Prevention(XI): Criminal Justice Policy for Northeast Asia Peace and Cooperation Initiative Ⅰ- Northeast Asia Regional System for Human Rights Protection in Criminal Procedure

Strenghtening the Application of Forensic Science in Korean Criminal Justice System(Ⅵ)

Criminal Compensation System : Operation Condition and Suggestion for Improvement

Diversifying Sanctions against Corporate Illegality

Strenghtening the Korean Criminal Justice System Applying Forensic Science (Ⅶ): Response to Environmental Crime in the Time of Climate Change Crisis

Jungho Lim

Criminal Law&Policy

Research Fellow

Jungho Lim's picture

Research Interest (Major)

Law

Report List

A Study on the Criminal Liability of Companies Profiting from Illegal Activities

Criminal Justice Polices and Judicial Systems (ⅩⅣ): Evaluation Research and Legislative Improvement on the Video Recording System in Criminal Procedure

A Study on Rational Application Plan for ‘Publication of Facts of Suspected Crime’

Circumstances and Countermeasures of Unlawful Practices of Law (Ⅱ) - Focusing on the Reality of Corruption Committed by 'Attorney-At-Law Retired From Public Office' and Its Countermeasures

Improving the Prevention System of Corruption in the Private Sector

The Criminal Justice Response and Development Strategy in the Age of the Fourth Industrial Revolution (Ⅰ) Autonomous Vehicle and Drone

Critical Review of Criminal Justice Bills During the 19th National Assembly of Korea: Outcomes and Challenges

Strenghtening the Korean Criminal Justice System Applying Forensic Science (Ⅶ): Response to Environmental Crime in the Time of Climate Change Crisis

Diversifying Sanctions against Corporate Illegality

Jonghwan Kim

Jonghwan Kim's picture

Report List

Jongwon Park

Jongwon Park's picture

Report List

Seungjun Lee

Seungjun Lee's picture

Report List

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