Chinese people affected by traditional culture have never changed their perspectives on wild animals. They are not our natural partners, but food and medicine resources. The value of their existence is to be used by people; the only purpose of paying attention to them is to use it better and use it longer.
This time the wild animals hosting the new coronavirus have given humans a good lesson. It prompts society to reflect on how to get along with wildlife? If we go to study Chinese medicine, we will find that many wild animals are "medicinal resources" or even "rare medicinal resources". The Chinese medicine community has always said that "a few famous animals' precious medicines" involve "medicinal materials" such as tiger bones, leopard bones, saiga horns, bear bile, musk, pangolin scales, etc. The "hosts" of these medicinal materials are now all endangered.
Obviously, the medicinal use of wild animals is an unavoidable issue in China that requires effective response from the law.
As a lawyer, through research on the laws related to the medicinal use of wild animals, I found that the current law hardly mentions the medicinal use of wild animals, as if it does not exist at all.
On February 24, 2020, the Standing Committee of the National People's Congress issued the "Decision on the Comprehensive Prohibition of Illegal Wildlife Trading, the Elimination of the Abuse of Wild Animals, and the Effective Protection of the People's Health and Safety" (hereinafter "Decision") In my opinion, it not only amends the provisions of the Wildlife Protection Law (hereinafter referred to as the "Wildlife Protection Law"), but also has an obvious breakthrough, that is, for the first time in the law, explicitly and publicly Admits to the medicinal problems of wild animals.
Article 4 of the "Decision" says: "For special circumstances such as scientific research, medicinal use, display, etc., where wild animals need to be used for non-edible use, strict approval and quarantine inspection should be implemented in accordance with relevant national regulations."
This is almost the first time that in public legal documents, legislators directly recognized the medicinal use of wild animals.
As a wildlife protection law, it should have comprehensively and thoroughly listed and carefully regulated several realities of the utilization of wild animals from the perspective of protecting them. However, there is almost no expression in the provisions of the protection law, which positively involves the legal regulation of the medicinal use of wild animals. It is as if the problem of the medicinal use of wild animals does not exist in China. Or, it's like giving a giant panda a national gift to AIA, but with a special exception for special needs and special approvals.
The latest "Wild Animals Protection Law" amended and implemented in 2018 has a total of 58 articles, only the expression "medicinal" is hidden at the end of one article-Article 29, paragraph 2 has this sentence: "Wild animals and their Products that are operated and used as medicines should also abide by laws and regulations related to medicine management. "
"Operated and used as a medicine" is the only and public statement on the medicinal use of wild animals in the currently effective Wildlife Protection Law. In addition to this, there are no more articles on medicinal use or the management and use of medicines.
The phrase "should also be followed" originally stated that for the protection of wild animals, it is necessary to cross-cover between the drug management law and the wildlife protection law, taking into account the protection and medicinal use according to their product. It stands to reason that they have double legal regulations on their heads and deserve decent care. But in fact, the "Protection Law" pushed them to the "Drug Law" and gave up their protection; the "Drug Law" focuses on their use value and is not responsible for protection. As a result, the legal double care has evolved into a "mixed doubles." The "Pharmaceutical Law" does not need to comply with the "Wild Protection Law" for the medicinal use of wild animals, but is only based on the "Wild Animals as a Utilization of Medicinal Resources" law, and such laws are formulated and operated by the relevant national pharmaceutical authorities.
This is what the latest version of the "Wild Life Law" looks like. What does the other historical versions look like?
Check back several versions of the "Wild Protection Law" since its implementation in 1988. Since its birth, the Wildlife Law has undergone four revisions, totaling five texts. In the case where openings are allowed to hunt or sell, buy, and use the national key protected wild animals and their products, the following statements were made:
The 1988 text, "Due to special circumstances such as scientific research, domestication and reproduction, exhibitions".
2004-2009 text, "Due to scientific research, domestication and reproduction, exhibitions or other special circumstances".
The 2016-2018 text, "Due to scientific research, artificial breeding, public exhibitions, cultural relics protection or other special circumstances".
The above-mentioned expression "operated and used as a drug" was added as the second paragraph of Article 29 from the revision of the 2016 text. This statement is not a direct regulation of "drug business conduct", but only a direction and an opening to change the management of wild animals from the field of "protection law" to the field of "drug law".
As we all know, in terms of its importance in people ’s minds, China ’s use of wild animals ranks first in medicinal use, second in food, third in display and viewing performance, fourth in education, and fifth in scientific research. That is to say, the "medicinal" with the highest weight in people's hearts is actually not reflected in the law. What is the hidden purpose behind it?
In previous versions, we can simply compare "medicinal" and "exhibition" (or display), it gives the impression that "exhibition" of wild animals is more important than "medical". From a protection perspective, how can "exhibition" threaten wildlife more than "medical"?
The use of enumeration and enactment in legislation is actually a common expression of language rhetoric. As usual, it should always enumerate the major situations and put the minor situations into the word "wait". Now that the "Wild Protection Law" puts "medicinal" in the word "waiting", and using the word "waiting" to cover very important acts, does it imply some kind of cover for "medicinal"?
Why didn't the "Decision" of the National People's Congress "wait" again? The issue of "medicinal" wildlife is no longer obscured. It is a huge step forward in legislation, at least a change of attitude towards the medicinal use of wildlife. After this year, breeding for food is not acceptable, and breeding for medicinal purposes is sufficient.
This is a very strange phenomenon. In the use of wild animals, the medicinal use of Chinese medicinal materials is a large volume of existence, a large group of interests, and a very complex and diverse legal relationship. Chinese medicinal materials are essential to the survival of wild animals. Practice has proved that it is the crazy use of Chinese medicine that has caused a large number of wild animals to become endangered. Taking Lin Musk as an example, scholars estimate that the number of Musk genus in China was about 2.5 million in the 1950s, and there were only about 600,000 in the 1980s, and less than 100,000 by the end of the last century. , Almost halved every 5 years. At this rate of development, Musk resources will face extinction in China. There is only one reason, that is, Chinese medicine companies are trying to obtain musk. In the past 30 years, the number of musk deer in China has dropped by 90%. In the "National Traditional Chinese Medicine Formulary", there are 295 kinds of musk-containing prescriptions, and the annual consumption of musk is extremely large, estimated at 1500 kg. A male musk can only provide 10 to 30 grams of musk. According to 20 grams per head, there are 50,000 to 72,000 male musk devoted to their innocent lives.
Continued organized and premeditated high-price acquisitions have driven hunters to madly hunt male musk deer. All the musk obtained by the killing was collected and preserved by Chinese herbal medicine companies in various places, and then sold to the giants of domestic Chinese medicine companies year by year through the "national plan" ration.
The following "several flavors of traditional Chinese medicine" have always been "precious drugs" produced by large Chinese pharmaceutical companies using Musk Pharmaceuticals: First, Zhangzhou Pianzaihuang, "Pianzihuang" and "An Gong Niuhuang Wan" in Beijing Tongrentang Third, Yunnan Baiyao's "Yunnan Baiyao"; Fourth, Suzhou Leiyunshang's "Liu Shen Pill"; Fifth, Shanghai Hehuang Pharmaceutical's "Shexiang Baoxin Pill". In addition, of course, there are many not listed.
It can be said that it is the existence of these musk medicine companies that led to today's extreme crisis of survival of the musk wildlife.
According to a Xinhua News Agency report on October 5, 2017, in Feng County, Shaanxi Province, which is known as the "Hometown of Forest Musk Deer in China", its forest musk breeding scale accounted for 60% of the country's total. Musk is only 60 kg. The planned breeding scale by 2027 is only 50,000. The current demand for musks by pharmaceutical companies is entirely based on the "stock" formed by the large-scale hunting of wild forest musks.
The Chinese medicine companies' passion for chasing musk has pushed musk to the position of "soft gold". The domestic price in 2017 was 400 yuan per gram, and the international price exceeded 100 US dollars per gram. The ultra-high price has caused fewer and fewer wild forest musk deer, and the wild musk deer, such as forest musk deer, horse musk deer and original musk deer, are getting crazy.
So, is there no serious law to regulate the medicinal use of wild animals?
It stands to reason that in China's "Chinese Medicine Law" and "Drug Management Law", there should be clear provisions for wild animals as medicinal materials, but, unfortunately, no.
Where is it? There are "Regulations on the Protection and Management of Wild Medicinal Resources" issued by the State Council on October 30, 1987. Is this 33-year-old administrative regulation still valid?
My opinion seems to be valid.
That's right, this is so far. Except for the "wildlife law" "pharmaceutical management and use", the only serious law about the management of wild animals as medicinal resources may be.
Let's take a look at how the "Regulations" stipulate. Article 2, "Any unit or individual who collects, hunts or sells wild medicinal materials within the territory of the People's Republic of China must abide by these regulations unless otherwise provided by the state."
Note that words are still cherished here. One word "hunting" is all the provisions of the "Regulations" on the "medical use" of wild animals. Vaguely expressed the strong demand for the use of drugs in wild animals.
For wild animals, their relationship with humans is a "hunting" and "hunted" relationship. Man is a hunter in front of wild animals. Humans need "hunting" wild herbs, only wild animals. If you ignore the word "hunting", I am afraid you will think that the "Regulations on the Protection and Management of Wild Medicinal Resources" is just a law like Li Shizhen's "Compendium of Materia Medica" that specifically regulates the management of wild medicinal plants.
In addition to the pity of words like gold, and only one "hunting" word to cover wild animals, the "Regulations" no longer has a positive expression of wild animals. Wild animals are also regarded as plants of wild medicinal materials, which are collectively referred to as "wild medicinal resources".
On November 25, 2019, Shijiazhuang, a national first-level protected wild animal, black stork, frolicking for food in the Mianman River wetland in Jingxing County.
The medicinal use of wild animals is not legally viewed. What negative impact will negative legislative attitudes and omissions have on their destiny?
Taking the forest musk as an example, the medicinal effects on wild animals have been explained. There are also endangered species such as pangolins, tigers, leopards, and black bears that have a similar fate to Lin Musk.
The law is based on subjective knowledge and logical identification, a set of institutional arrangements that effectively define the objective behavior and its objects, thereby regulating social relations. Whether the circumstantial regulation of objective behavior is closely related to our subjective identification. Simply put, there is no unexpected way, only a system that does not want to be established.
Subjectively, we cannot pretend that the indispensable need for their medicinal use is the main factor that accelerates their endangerment. It is impossible to pretend to be invisible. In the incentives just needed for medicinal purposes, various behaviors harmful to them, such as large numbers of killings and illegal sales, exist. The point is that if we do not formulate targeted policies for the actual medical needs, then the law cannot cope with the various "measures" in reality. For example, it was typical for the volunteer "Detective Sherlock Holmes" to report the illegal operation of a company producing "Pangolin Penetrating Fluid" in Zunyi, Guizhou not long ago.
Objectively, this "legislative omission" approach will leave huge institutional holes for drug companies and other stakeholders, making it easy for all stakeholders to fish in troubled waters, and at the same time creating obstacles for law enforcement and supervision, which eventually makes the wildlife protection one. The carnival of interest exchange and power rent-seeking for those who desire to become heartburns has become a crematorium for the tragic fate of wild animals.
It is taken seriously in legislation, and it is necessary to specifically regulate the impact of medicinal use on wild animals, and to design some restraint and control measures in a targeted manner. In the Wildlife Protection Law, there is a special chapter to distinguish and regulate the "medical wild animal management", " "Scientific research", "exhibition and exhibition" and other special circumstances allowed to use, break through the veil of "artificial breeding", directly target the purpose of breeding wild animals (medicinal or other), and increase the intensity of supervision and management The breadth of information disclosure and the intensity of public participation have substantially increased the social responsibilities of enterprises such as wild animals and medicinal plants, which not only give users a clear line of action, but also give the society a clear scope of supervision.
The same is true of legal liability. At present, the legal liability for wild animals is basically missing. Without specifically targeted legal responsibilities, it is impossible to achieve the purpose of protecting wild animals. This principle does not require too much explanation.
What we need to understand is that in the history and reality of wildlife protection, it has not played a role in protecting wildlife, and has not clearly defined the boundaries of various uses, and it cannot exert its due guidance and regulatory effects.
If it weren't for the new coronary pneumonia epidemic, people wouldn't pay attention to wild animals. Of course, in the city of Wuhan, I would not have the leisure time to study the legal status of wild animals and discover the huge blind spot of the medicinal laws of wild animals.
This is the case.
In the context of the "Protection Law" thinking, when the use of Chinese herbal medicines for wild animals should be cleared, humans should face up to and not respond to a series of social problems brought about by wild animals' medicinal use.
(Zeng Xiangbin's author Zeng Xiangbin is an environmental charity lawyer of Hubei Huanyuan Law Firm)