Tue, Jun 20, 2017 - Page 8 News List

Amend laws to punish polluters

By Lin Yu-hsiung 林鈺雄

The best way to deal with pollution crime is to ensure that the Criminal Code is properly amended to effectively prevent water pollution.

Second, the element in the Criminal Code that defines pollution crime as one that “endangers public safety.”

Under Germany’s Criminal Code, deliberately polluting water bodies or causing the quality of water bodies to deteriorate can result in up to five years in prison, and failed attempts to do are also punishable, while unintentional pollution can result in up to three years in prison. Endangering public safety is not a main element in any of these offenses.

In contrast, Taiwan’s Criminal Code requires that prosecutors prove that a pollution case has “endangered public safety” to convict someone of pollution. As a result, many people charged with water pollution — including the ASE case — have been found not guilty simply because it was not possible to prove that they endangered public safety.

As for the Ho Tung Chemical case, in Germany the company would at least have been found guilty of unintentionally polluting a water body.

However, in Taiwan, how would it be possible to prove that dumping several tonnes of kerosene into the Houjin, which has already been heavily polluted from several other sources, would “endanger public safety”?

Since rivers are not static, any kind of chemicals released into them will naturally become diluted, no matter how strong or how toxic they are. As long as the legislature does not amend the law, the executive and judicial authorities will not be able to do much regardless of how hard they try.

Third, any profit made at the expense of polluting the environment should be forfeited. Environmental crime is essentially a kind of financial crime, the goal of which is to increase profit by saving money on waste treatment.

A key to fighting such crime, then, is to deprive people of the profit they have made from polluting the environment. Under the new confiscation system in the Criminal Code, it is now possible to seize the property of defendants and a third party involved, as well as related evidence in pollution cases, irrespective of whether the pollution was intentional or not. The problem is whether or not the education of legal practitioners will keep up with the new law.

However, there are different interpretations as to whether the huge funds required to restore a polluted area to its pre-pollution state can be confiscated from the polluter based on their profits. In order to eliminate further dispute, this is something on which the legislature needs to make a decision.

Chi sacrificed his life to protect the nation’s environment; legislators should follow his spirit and see to it that we have a pro-environment criminal code that protects the nation.

Lin Yu-hsiung is a professor in the College of Law at National Taiwan University.

Translated by Tu Yu-an

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