(LI SHIGONG)

From November 2007 to February 2009, despite knowing that it was illegal, Hu Wenbiao and several other heads of Biaoxin Chemical Co. Ltd. in Yancheng, east China's Jiangsu Province, ordered to discharge industrial wastewater containing toxic substances into local rivers, seriously polluting the water source of two local tap water companies. In February, the water supply was cut off for more than 66 hours because of the pollution, affecting more than 200,000 nearby residents.

On August 14, a district court in Yancheng sentenced Hu to 11 years in prison on charges of spreading poison. This was the first time in China that a person involved in a pollution case was punished for this crime.

In the past, people who were found guilty in similar pollution cases were usually punished for the crime of causing serious environmental pollution.

The crime of causing serious environmental pollution generally refers to releasing, dumping or disposing of radioactive wastes, wastes containing pathogen of contagious diseases, and toxic materials or other dangerous wastes into land, water and the atmosphere in violation of state stipulations.

The crime of spreading poison generally, however, represents the act of deliberately spreading pathogen of infectious diseases, poisonous or radioactive substances or other substances to endanger public security. If his (her) act causes serious injuries or death, the criminal can be sentenced to 10 years or more in prison or even receive the death sentence.

Some people believe that prosecuting people accountable for environment pollution for spreading poison shows judicial organs' strong commitment to curbing environmental crimes. But others argue that the Yancheng court overstepped its bounds.

Timely ruling

Zhang Zhijian (www.rednet.cn): Nowadays, many enterprises know that the waste materials they discharge into water or the air will threaten people's health, and that they are technically capable of preventing that harm. But they are reluctant to take any measures to prevent the tragedy in pursuit of higher profit margins. If that is the case, then the heads of the polluting enterprises should be prosecuted for spreading poison.

It is natural for enterprises to maximize profit margins, but the precondition is that they should not harm the public's interests. Particularly for enterprises that risk environmental pollution, tangible measures are needed to minimize the harm. Actually, with the progress of science and technology, already available technologies to prevent water pollution are quite advanced. The urgent problem now is that, although some enterprises have taken measures to prevent pollution, they do this only to placate environment watchdogs. Once inspectors leave, they return to discharging untreated industrial wastewater. Besides, some inspectors are susceptible to bribery. As a result, environmental pollution is still a big problem in many regions, where clean drinking water and clean air are a luxury.

Why are polluters so rampant? The main reason is that they are not punished or have not been punished severely. Another possibility is that the benefits of polluting outweigh the potential costs of punishment. Under these circumstances, if the punishment were not increased, environmental pollution would become more frequent and more serious.

In the face of increasingly severe legal punishment, entrepreneurs will have to give more attention to social responsibility. If you are not capable of coping with pollution problems, you'd better not rush into enterprises that might cause pollution. Otherwise, the profits you gain may not be enough to clean up the crime you've committed.

Someone found guilty of the crime of spreading poison should be sentenced to death. Such a sentence is severe enough to deter potential polluters who might otherwise deliberately discharge toxic pollutants.

Chen Jieren (Legal Daily): For a long time, people, including entrepreneurs, environment officials and even many judges, have regarded the act of discharging pollutants as committing the crime of causing serious environmental pollution as written in the Criminal Law. The maximum penalty for this crime is seven-year imprisonment.

Causing serious environmental pollution is a kind of negligent crime. But the actions of many polluting enterprises have surpassed the definition of this crime. For example, some of them continue to discharge pollutants after being warned by local environment watchdogs.

These actions should thus be considered to constitute the crime of spreading poison, which falls into the category of "dangerous crime." It means even if the act of discharging pollutants has not yet led to major losses or other severe consequences, those who commit the crime should be punished. If the act results in major hazards, the maximum punishment should be the death penalty.

Cao Lin (Yanzhao Metropolis Daily): As a kind of judicial philosophy, judicial activism encourages judges to creatively apply laws rather than strictly adhering to precedents in order to advance society. These judges can use their special rights to provide judicial remedies for social advancement.

The pollution-caused water supply cut in Yancheng in February was not an isolated case. In recent years, there have been many such cases. The losses caused by environmental pollution account for about 10 percent of the national GDP every year, and the worsening pollution has caused considerable harm to public health.

Administrative, legislative and judicial interference are three major channels to tackle the problem of environmental pollution. However, the first two channels have proven to be less effective in present-day China due to some systematic obstacles. Real progress requires flexible judicial means and judicial activism.

Of course, there is a prerequisite for judicial activism. Judges must abide by laws and not overturn them. The heavier punishment against Hu on charges of spreading poison adheres to the Criminal Law. It is creative but

reasonable.

Improper penalty

Sheng Xiang (Jinan Times): Those who are accused of spreading poison should actually be sentenced to death, since this crime endangers public security.

The difference between spreading poison and causing serious environmental pollution is not whether the discharged waste is toxic or not, but whether it is a deliberate spreading action or an illegal discharge. The two phrases mean totally different things.

The key is: If the substance is toxic in both cases, why are there completely different penalties for deliberate spreading and illegal discharge? If the polluter is prosecuted for spreading poison, which carries with it a much more serious penalty, it gives the public the impression that it is because the court wants to severely punish the polluter and that China's judicial system is very flexible—the court can make whatever changes it wants to. The important thing is to reassess the rationality of the crime of serious environmental pollution.

Zhang Guangjun (The Beijing News): For Hu Wenbiao, boss of the polluting Biaoxin Chemical Co. Ltd., the accusation of spreading poison is actually incorrect. Hu does need to be held accountable for the pollution, but the important thing is that the prosecution should be done in accordance with the law. By no means should we allow different penalties for the same crime.

In the past, criminals in similar cases were usually accused of causing serious environmental pollution. As a matter of fact, the local police in Yancheng detained Hu on the accusation of this crime.

The ruling in Hu's case does show the judicial department's strong determination to tackle environmental pollution, but this will not necessarily bring positive results.

There is a striking difference between the crimes of spreading poison and causing serious environmental pollution. The former directly causes loss of property or human life, while the latter first causes damage to the environment and then indirectly leads to loss of property or human life.

Hu's case fully reflects the dilemma of China's legal system when it comes to protecting the environment.

Compared with other countries, China's environmental law is already very rigorous, but the effectiveness of a law is not in its severity. For a law to be effective, the punishment it stipulates must be timely and predictable. It is more effective to keep a regular eye on environmental pollution than to make an example out of those responsible for the water pollution in Yancheng.

The Biaoxin Chemical Co. Ltd. is just one of many local small chemical companies. Before the pollution-caused water supply cut in February, this company had been discharging toxic industrial wastewater for a long time and only once was it lightly punished. It is the local environment watchdog's negligence that led to the severe pollution.

Environment-related crimes fall into the category of economic crime. In real life, such crimes are usually punished in the form of fines. However, when it comes to water pollution caused by the Biaoxin Chemical Co. Ltd., there was no fine imposed on the company, only severe punishment for its boss. This will do nothing to curb potential pollution or pay for environmental repair.