1、 The coincidence and development of restorative justice concept and the concept of protecting the legal interests of environmental crimes
（1） The agreement between the concept of restorative justice and the concept of protecting the legal interests of environmental crimes
In the process of rule of law in China, the legal interests protected by environmental crimes are controversial. We take the most typical crime of polluting the environment in the crime of destroying the protection of environment and resources in Section 6 of Chapter VI of the Criminal Law as the starting point to understand the legal interests of the environment. In 2011, the Criminal Law Amendment (VIII) revised the original Article 338 "Crime of Major Environmental Pollution Accidents" to "Crime of Environmental Pollution". In the description of the crime description, the behavior standard of "serious environmental pollution" replaces the result standard of "causing major environmental accidents, causing heavy losses to public and private property or causing serious consequences of personal injury and death" in the original name of the crime as the constituent elements of the crime of environmental pollution. The new crime expands the scope of the attack on environmental crimes. At the same time, the concept of legal interests of the crime of environmental pollution has also changed. The behavior structure of the crime of environmental pollution has gradually changed from a consequential crime to a dangerous crime, and its concept of legal interests has gradually changed from anthropocentrism to ecocentrism. In 2020, the Criminal Law Amendment (XI) again revised the provisions of the crime of environmental pollution. This revision improved the sentencing range of the statutory punishment, and more specifically stipulated the conditions for upgrading the four statutory punishments. The first three paragraphs stipulated that as long as the criminal act caused serious pollution and permanent damage to the environment, it could be deemed to meet the conditions for upgrading the statutory punishment. From this point of view, it recognizes that ecological environment resources are the legal interests protected by environmental crimes to a certain extent, and emphasizes the important value of ecological legal interests protection.
Under the background of the construction of the ecological civilization era, the requirement for the destruction of the ecological environment is that the damaged environment should be repaired; As a new concept of crime control in the field of criminal justice, the concept of restorative justice focuses on both the process of recovery and the results of recovery of damaged legal interests. Its core value is highly consistent with the protection of environmental legal interests in China. The object of environmental crime is the environment, and the core of environmental governance is to repair the damaged environment. The application of restorative justice concept in environmental crime governance is not only conducive to the restoration of environmental legal interests damaged by criminal acts, but also conducive to the restoration of the ecological environment damaged by criminal acts, making the ecosystem operate smoothly. Therefore, the concept of restorative justice is consistent with the protection of legal interests of environmental crimes.
（2） The concept of restorative justice and the evolution of the concept of protecting the legal interests of environmental crimes
The concept of restorative justice can be traced back to the feudal society in China's legislation, and its embryonic form is the system of protecting the innocent. The system of protecting the innocent originated in the Western Zhou Dynasty and reached maturity in the Tang Dynasty. It has been passed down for thousands of years in China and has strong institutional vitality. The system of protecting the innocent refers to the system in which the criminals, based on sincere repentance, actively propose to the government, consciously make up for the losses of the victims, so as to achieve the goal of eliminating mutual conflicts and pacifying social relations. Finally, the government will decide whether to give them leniency and the extent of leniency depending on the situation of compensation. It can be said that it is a legal system to protect the victims. The system of protecting the innocent pays attention to the repair of the social relations damaged by the criminals, and determines the severity of punishment according to the degree of repair, which reflects the value pursuit of the restorative justice concept to a considerable extent. In addition, the non litigation system of the Han Dynasty and the "first concealment of relatives" system of the Spring and Autumn Period reflected the value pursuit of the restorative justice concept to varying degrees.
Since modern times, with the rapid development of industry, the environmental situation has deteriorated dramatically, and the traditional criminal law concept focusing on punishment and prevention is difficult to meet the needs of environmental legal interest protection. China has begun to explore the introduction of restorative justice concept in the environmental field. In terms of legislation, Article 49 of the Law on Water and Soil Conservation, revised in 2010, stipulates that anyone who reclaims and develops crop land in violation of regulations shall be ordered by the relevant department to stop the illegal act and take remedial measures such as returning farmland and restoring vegetation. Article 5 of the Environmental Protection Law revised in 2014 establishes the environmental governance principle of "prevention first, protection first". The Yangtze River Protection Law, formulated and promulgated in 2020, has a special chapter on "environmental restoration". In terms of justice, China's criminal reconciliation system, conditional non prosecution system and community correction system all reflect the value pursuit of restorative justice concept to a certain extent. The academic circles' exploration of the concept of restorative justice and the continuous development of judicial practice are in essence the practice of the core concept of the restorative justice system, and are committed to seeking new theoretical and ideological approaches for the expansion and development of the concept of ecological environment restorative justice.
2、 The proper orientation of restorative justice in environmental crime
（1） As discretionary sentencing circumstances
The concept of restorative justice is applied to environmental crimes, which is mainly manifested in the restoration of the damaged ecological environment. The sentencing is a discretionary sentencing scenario. In practice, the judicial organs refer to the extent of the criminals' restoration of the damaged environment in sentencing crimes that damage the environment. The criminals' restoration of the ecological environment can be divided into two situations: first, the criminals' active restoration of the damaged ecological environment can reflect the subjective malignancy and social danger of the actors, as well as the possibility of their reoffending; Secondly, it is an important measure to stop loss and protect the ecological environment in a timely manner by considering the criminals' restoration of the ecological environment or using effective means to prevent pollution from continuing to occur as discretionary sentencing circumstances, which is conducive to encouraging criminals to eliminate pollution and reduce damage to the environment. The restoration of the ecological environment as a sentencing circumstance focuses on the restoration of the damage suffered by the victim due to environmental pollution during the sentencing process. It is initiated by the offender and can reflect the subjective malignancy of the actor and the reduction of personal danger, which is intended to encourage the actor to actively repair the ecological environment and maintain ecological development.
Restorative measures are considered as discretionary sentencing circumstances in trial practice. Although they have played a certain social effect, due to the immature legislative experience and technology, the provisions of the law on discretionary sentencing circumstances are rough, and the operability is not strong in practice. Due to the fuzziness of the provisions, the application of the judge's discretion to the discretionary circumstances of sentencing is not standardized in practice, but similar cases have yielded different results. From this point of view, although restorative measures are widely used as discretionary sentencing circumstances in practice and have an immediate effect, from the perspective of the overall ecological perspective, the arbitrariness and uncertainty of judgments caused by restorative measures cannot be ignored, and it is difficult to reflect the connection between restorative judicial remedies and sentencing, and it is difficult to really improve judicial efficiency and achieve sentencing justice in individual cases. Although China issued a relevant judicial interpretation in 2016, its application conditions are strict, and it is only applicable to cases of minor environmental pollution crimes, and it is only applicable to first offenders, which makes most criminals pay little attention to such discretionary sentencing circumstances, have insufficient understanding, and are lazy to implement environmental remediation.
（2） The Justification of Restorative Measures as Non criminal Punishment Measures
At present, freedom penalty and fine penalty are adopted as criminal sanctions for environmental crimes. It can be seen from the above that this has great limitations and is not conducive to the restoration of the ecological environment damage caused by environmental pollution. At present, China's criminal law is mainly based on the five non criminal punishment measures in Article 37 of the Criminal Law to repair the ecological environment, but as far as the current judicial situation is concerned, it is difficult to achieve the dual effect of punishing crimes and restoring damaged legal interests. Restorative measures, as non criminal punishment measures, have its legitimacy when applied to environmental crimes.
From the theoretical level, restorative judicial measures as non criminal punishment measures have its legitimacy basis. First, restorative measures have a wide range of applications. Non criminal punishment measures are mainly applicable to criminal cases with minor criminal circumstances and little harm. Environmental criminals are motivated by pursuing economic interests, with less subjective malignancy and low personal risk. Secondly, the non punitive nature of non criminal punishment measures should be included in the title of "recovery". For some criminals who are exempt from criminal punishment, non criminal punishment measures not only achieve the purpose of warning and education, but also prevent them from being plagued by the "criminal record label", which is beneficial for criminals to reintegrate into society, and also encourages them to actively perform their environmental repair responsibilities. Finally, from the perspective of functionalism, the purpose of non criminal punishment measures is not only punishment and education, but also the restoration of legal interests. Restorative measures should aim at environmental restoration and be carefully selected according to individual cases. Restorative measures have dual functions of punishing criminals and compensating environmental legal interests. As non criminal punishment measures, they can deter criminals on the one hand and have dual effects of punishment and prevention; On the other hand, it is also beneficial to the realization of the purpose of legal interest restoration.
From a practical perspective, restorative measures have achieved good social effects when applied to environmental crimes. At present, the penalty system of environmental crime is formed under the influence of the traditional legitimacy theory, which does not reflect the concept of restorative justice, and does not introduce the way to assume criminal responsibility for repairing the ecological environment. In order to break through the problem of lagging environmental crime legislation, many courts across the country have tried to practice the restorative justice concept in trying environmental crime cases. Judges have innovated ecological restoration methods such as proliferation and release, labor compensation, and replanting and greening in their judgments for the practical needs of hearing cases. For example, in 2017, Mr. Cheng in Yingjing County, Sichuan Province cleared and forested the contracted forest land without obtaining the forest cutting license, and cut trees indiscriminately and illegally. The People's Court of Yingjing County, Sichuan Province, found after trial that it constituted the crime of wanton cutting of trees and the crime of illegal cutting of trees, sentenced the defendant to a corresponding term of imprisonment for several crimes, and ordered the defendant, Mr. Cheng, to replant 241 designated trees. In the above practice cases, the court decided that the defendant should bear criminal responsibility, at the same time, replant trees and replant the damaged trees, which has received good social effects. Therefore, in the future amendment of the law, the restoration of the ecological environment should be taken as a non criminal punishment measure to further expand the scope of application and complement the lack of legislation. To establish the clear status of non criminal punishment measures in the law, so that the judiciary can have laws to follow in judicial practice, the judiciary can specify the subject of environmental recovery, the responsibility for recovery, the goal of recovery, etc. in the judgment documents, which not only realizes the punishment goal and the prevention goal of the penalty, but also integrates with the ecological human centered legal interests, and enhances the operability of ecological restoration.
3、 The application of restorative justice to environmental crimes
The application of restorative justice in environmental crimes should be carried out from the following two aspects: first, at the legislative level, it should complement the lack of legal norms and improve the criminal law system of non criminal measures and environmental crimes; The second is the judicial level, from improving the integration of environmental crime and environmental public interest litigation to improving the construction of the supervision system of restorative judicial measures.
（1） Complementation and integration of legal norms
1. Improve non criminal punishment measures
In judicial practice, non criminal punishment measures have a high application rate in the governance of environmental crimes, and have played a good social effect. However, due to the unclear legislation and the priority of justice, although they can play a deterrent role to a certain extent, they are suspected of being "unable to rely on". Under the background of the current legal society, it will make the criminal think that there is no legal basis, which is difficult to urge the criminal to consciously remedy the pollution consequences caused by criminal acts, and cannot fundamentally solve the problem of legal basis for environmental damage. To punish environmental crimes, we should pay equal attention to prevention and punishment. Non criminal punishment measures and penalties jointly achieve the purpose of criminal sanctions, which is of great significance to the protection of legal interests. This article believes that ecological restoration measures and their applicable objects and scope should be further clarified in Article 37 of the Criminal Law, so as to avoid "being unable to abide by" and become a law to abide by. In the revision of Article 37 of the Criminal Law, the way of assuming the responsibility for ecological restoration was explicitly written into the provisions of the Criminal Law; Integrate the legal provisions and judicial interpretations scattered in the department law and environmental governance, and write them into the non criminal punishment measures, so as to make the law clear and reflect the principle of clarity of criminal law. Clarifying the non criminal punishment measures for ecological restoration in the criminal law can not only restore the damaged ecological environment in time, but also provide the judicial organs with legal basis, so that the judicial organs have laws to abide by, so that the judicial decisions are more authoritative, and more can achieve the unity of the legal effect and social recognition effect of justice in the governance of environmental crimes.
2. Build a more perfect environmental crime system
The concept of restorative justice applied to environmental crime should further refine the applicable rules, combine judicial practice, improve legislation, and build a more scientific system of environmental crime. First, expand the scope of application of restorative justice. The criminal reconciliation system, conditional non prosecution system and community correction system in China's judicial practice are the embodiment of the concept of restorative justice. The exploration of the concept of restorative justice and the continuous development of judicial practice by the academic community are in essence the practice of the core psychological concept of the restorative justice system, which provides an ideological approach and theoretical experience for the further development of the concept of restorative justice. However, at present, the localization practice of restorative justice concept is embodied in some fragmented theoretical content, without complete system support. The criminal law of our country stipulates the punishment methods of freedom penalty and fine penalty for crimes of environmental pollution type, but does not explicitly stipulate restorative justice as penal or non penal measures, which leads to that restorative justice measures are mostly applied to the repair of forest pollution and soil pollution in trial practice, with narrow scope and few applications. The object of the crime of environmental pollution is complex and diverse, including not only air pollution, soil pollution, but also water pollution, mineral pollution and other aspects. The lag of legislation makes it difficult for restorative justice to be widely applied to crimes of environmental pollution. In view of this, we call for further expansion of the scope of application of restorative justice. Secondly, distinguish the sentencing levels and clarify the recovery objectives. The Criminal Law Amendment (XI) has raised the legal punishment grade for four serious environmental pollution acts, and to some extent, it represents the legislative trend of fine sentencing of environmental pollution crimes. An important indicator of the fairness of punishment is the consistency of sentencing. There are no two identical leaves or two identical cases in the world. Therefore, in order to achieve the consistency of sentencing and equality before the law, we should distinguish the sentencing levels according to the pollution situation and specify the recovery goals that should be undertaken. This paper believes that a unified and complete expert evaluation mechanism should be further established to further refine the statutory punishment range for crimes that cause different levels of pollution based on their subjective malignancy. In addition, due to the diversity, complexity, mobility and other characteristics of crimes of environmental pollution type, it is impossible to set a unified recovery goal for them. It is necessary to comprehensively judge the possible recovery goals according to the degree of pollution and reversibility, and the executive organ may decide to put forward sentencing suggestions to the court according to the recovery situation, so as to further clarify the recovery goals.
（2） Reflection on the executive mechanism at the practical level
The application of restorative justice concept in judicial practice mainly starts from the following two aspects:
1. The combination of restorative justice concept and environmental public interest litigation pollutes the environment, which has extensive harmfulness. If its punishment focuses only on punishing crimes, does not pay attention to the repair of the environment damaged by criminal acts, and does not use the fines obtained specifically for the repair of the ecological environment, then the environmental legal interests of the public will be difficult to get relief. According to the data released by the Supreme People's Court, in 2019, courts at all levels nationwide accepted 179 environmental civil public interest lawsuits filed by social organizations and concluded 58, up 175.4% and 262.5% year on year. It accepted 2309 environmental public interest lawsuits filed by procuratorial organs at all levels nationwide and concluded 1895, up 32.9% and 51.4% year on year. In 2020, 3557 environmental public interest litigation cases were concluded, with a year-on-year growth of 82.1%. It can be seen from the above data that the number of environmental public interest litigation in China has been increasing year by year, especially the number of public interest litigation filed by the procuratorial organs. As a new way of relief for environmental behavior, environmental public interest litigation has the advantages of universality and universality. We should actively explore how to further improve the theoretical framework of environmental public interest litigation, especially enrich the rules of public interest litigation, so that it reflects the concept of restorative justice and reflects the repairability of the ecological environment.
The concept of restorative justice and environmental public interest litigation are integrated from two aspects: first, establish a connection mechanism at the judicial level where the responsibility for execution can be converted according to law. The judgment of overlapping cases of public interest litigation execution responsibility can be combined with the status of the actor's implementation of restorative measures as the distribution benchmark. When necessary, the judicial organ can determine the responsibility transformation of the illegal actor based on the recovery of public interests. For example, after the administrative organ imposed an administrative penalty of fine, the administrative counterpart was slow to pay. At this time, the procuratorial organ filed a lawsuit due to serious damage to the environment. After the court accepted the case, some actors will immediately pay the fine as required. The court can consider the relevant situation when deciding to compensate for losses according to Article 37, paragraph 2, of the Criminal Law. The main purpose of compensation for losses is to punish criminals and restore damaged legal interests. If the environmental pollution caused by the perpetrator is recoverable, he/she should pay the fine in full before the case is concluded, and actively restore the ecological environment damaged by his/her criminal behavior. This paper believes that the judicial organ can, under the guidance of experts and in combination with the environmental recovery situation, consider transforming the criminal liability for compensation losses into administrative liability to reduce the judicial organ's litigation pressure. Although there are differences in the functions of the two kinds of responsibilities, the relief and restoration of the damaged ecological environment are common. Second, integrate the method of agency performance into environmental public interest litigation. The method of acting for performance is not directly stipulated in environmental public interest litigation in the Civil Procedure Law and relevant judicial interpretations. The judgment of environmental public interest litigation should give consideration to the recovery of environmental legal interests and the improvement of judicial efficiency. The professionalism and complexity of environmental pollution problems make it difficult for environmental polluters to independently complete the remediation work. In this paper, the judicial authority can choose the method of proxy performance according to the situation of the case during the implementation of public interest litigation. For environmental public interest litigation cases that do not have personal dependence and the defendant is unable to complete in person, the judicial authority can entrust a professional third party to implement the repair plan according to relevant laws and regulations, and the defendant shall bear the corresponding costs. It is the result of the in-depth implementation of the restorative justice concept that the way of acting performance is integrated into the environmental public interest litigation, which can not only restore the damaged ecological environment in time, but also improve the judicial efficiency.
2. Improve the supervision system of restorative measures
To improve the supervision system of restorative measures, we should start from the following two aspects: first, effective linkage between the executive departments. Effective collaborative supervision by the executive departments can form a joint force of supervision, share supervision costs and save judicial resources. Environmental pollution has the characteristics of complexity and diversity, and the restoration of ecological environment is a huge systematic project. In order to strengthen the implementation supervision, in judicial practice, on the one hand, we should build an accurate implementation supervision grading system according to the work and responsibilities of each department.
Reasonably allocate the executive supervision power of each executive department, further clarify the supervision responsibility of the executive body, unblock the communication channel of the executive department, and do not arbitrarily stagnate the communication and cooperation between the executive departments to reduce the implementation efficiency. We can consider relying on blockchain and other advanced technologies to improve the ability to collect information, build a judicial chain across executive departments, make full use of Internet video conferencing and other communication channels, adopt diversified communication methods, create a more efficient implementation and connection system, and enter tracking information into the chain from the beginning of environmental recovery responsibility, leaving traces in the recovery process and strengthening the linkage effectiveness of various departments. On the other hand, we should establish an effective evaluation system for the implementation effect, and urge the implementation department to take responsibility by means of responsibility supervision. With the promotion and development of China's ecological civilization construction, the role of environmental restoration assessment system has become increasingly prominent. We should strengthen the examination and selection of traditional environmental assessment indicators, improve the assessment method of environmental recovery, build an intelligent and information-based supervision and assessment model, adopt differentiated assessment methods "according to local conditions", and promote the executive departments to actively supervise the effects of ecological recovery. Second, improve the government led, community oversight and other oversight mechanisms. During the implementation of restorative judicial judgments in China, because the current linkage supervision mechanism of the executive departments has not yet been fully formed, and some executive supervision departments perform their responsibilities passively and passively, leading to the lack of a clear acceptance subject and acceptance criteria for most court judgments, resulting in the failure of supervision over the effects of ecological restoration, making it difficult to fully and effectively play the role of restorative justice. The biggest victims of environmental pollution crimes are the people, and the people are the ultimate undertakers of the damage caused by environmental pollution crimes. Therefore, we should realize that the deepest power to control environmental crimes comes from the masses, and we should make full use of the masses' social supervision power. In judicial practice, we should adopt a diversified recovery governance model and improve the way of government leading and community supervision. To be specific, first of all, improve the government led approach, use government resources, formulate relevant policies from the overall perspective, and do a good job in ecological protection publicity. Under the shackles of the traditional concept of retributive punishment, the concept of valuing punishment over people is deeply rooted.
The change of social form leads to the change of judicial concept. With the prominence of the independent value of environmental legal interests, the traditional penalty system focusing on punishment and prevention can no longer meet the requirements of the construction of ecological civilization under the new era background. The rise and development of restorative judicial concept is just a complement to the shortcomings of traditional criminal law theory under the background of the ecological overall view. We should make people fully aware of the need to protect the ecological background of green water and green mountains through various means of publicity, so that gold can flow into silver. Secondly, improve the community supervision mechanism. The application of restorative measures is often related to probation. The masses are the perceivers of the effect of ecological restoration. In the process of implementing the restorative measures, we can boldly introduce public participation and use the mode of community supervision: on the one hand, we fully mobilize the enthusiasm of the masses, broaden the scope of the main body of supervision, and save judicial resources; On the other hand, it makes the violator obtain a higher sense of social identity when implementing environmental remediation, which is beneficial to his return to society.
epilogue
As the last barrier to protect social fairness and justice, criminal law should make a strong response to how to better carry out the construction of ecological civilization. However, since the establishment of environmental crimes in the Eighth Amendment to the Criminal Law, the limitations of its penalty methods in ecological environment protection have become increasingly prominent, and the effect of penalty application is far from the requirements of China's ecological civilization construction. In this context, the concept of restorative justice has entered our vision, which is conducive to solving the remaining problems of environmental crimes in a fundamental sense, and escorting the construction of ecological civilization in China.