The two high schools issued a judicial interpretation, and the crime of destroying wildlife resources is no longer only quantitative, but value as the basic conviction and sentencing standard

  Buying less valuable wild animals is no longer a "criminal"

  On April 7, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Destruction of Wildlife Resources" (Fa Shi [2022] No. 12) (hereinafter referred to as the "Interpretation"), starting from April 2022 Effective from the 9th.

The "Interpretation" no longer regards the crime of destroying wildlife resources as a quantitative theory, but instead takes value as the basic standard of conviction and sentencing.

  The relevant person in charge of the two high schools said that according to the "Interpretation", in cases where farmers take preventive measures to hunt wild boars in order to protect crops from being infringed, they should seek truth from facts and make comprehensive discretion.

  At present, the crime of destroying wildlife resources has formed an interest chain of "fishing, hunting-purchasing-selling".

In judicial practice, not only the illegal fishing and hunting at the front end, but also the subsequent sale of stolen goods should be punished.

Based on this, the Interpretation makes it clear that those who purchase or sell illegally caught aquatic products or illegally hunted wild animals shall be convicted and punished for the crime of covering up or concealing the proceeds of crime.

  The Interpretation also clarifies the conviction and sentencing standards for the crime of illegally hunting, purchasing, transporting, and selling terrestrial wildlife for the purpose of consumption, which was newly added in the Criminal Law Amendment (XI).

  Interpretation 1

  Conviction and sentencing should be based on value instead of quantity

  The person in charge of the Research Office of the Supreme People's Court and the Legal Policy Research Office of the Supreme People's Procuratorate stated that the "2000 Interpretation of Animal Crimes" and "2014 Interpretation of Smuggling Crimes" stipulated the standards for conviction and sentencing of relevant crimes according to the number of animals involved, but in Under the background of rapid economic and social development, the handling of relevant cases is difficult to adapt to the emerging complex situations.

The "Interpretation" takes into account the large differences between different wild animals, and changes to value as the basic conviction and sentencing standard for crimes of destroying wildlife resources, so as to better achieve a balance between crimes and punishments.

  For example, Article 2 of the Interpretation stipulates: Smuggling of precious animals and their products prohibited by the state from importing and exporting, with a value of more than 200,000 yuan but less than 2,000,000 yuan, shall follow the provisions of Paragraph 2 of Article 151 of the Criminal Law. The crime of smuggling precious animals and precious animal products shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years, and shall also be fined; if the value is more than 2 million yuan, it shall be deemed that "the circumstances are particularly serious" and shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, The property shall also be confiscated; if the value is more than 20,000 yuan but less than 200,000 yuan, it shall be deemed as "minor circumstances", and shall be sentenced to fixed-term imprisonment of not more than five years and a fine.

  For another example, Article 8 of the Interpretation stipulates: In violation of the regulations on the protection and management of wild animals, for the purpose of eating, illegally hunt, purchase, transport, and sell animals in the wild environment other than those stipulated in Paragraph 1 of Article 341 of the Criminal Law. Growing and breeding terrestrial wild animals that fall under any of the following circumstances shall be identified as "serious circumstances" as stipulated in Paragraph 3 of Article 341 of the Criminal Law, and illegal hunting, purchasing, transporting and selling of terrestrial wild animals Criminal conviction and punishment: (1) Illegal hunting, purchasing, transporting or selling terrestrial wild animals with important ecological, scientific and social value or local key protected terrestrial wild animals worth more than 10,000 yuan; (2) Illegal hunting , purchasing, transporting, or selling other terrestrial wild animals with a value of more than 50,000 yuan other than those specified in Paragraph 1; (3) other circumstances where the circumstances are serious.

  The "value" here does not only include market value, but mainly the value determined by the State Council's wildlife protection department based on the comprehensive evaluation of the preciousness, endangerment, ecological value and market value of wild animals.

After this adjustment, it is no longer a "criminal" for wild animals of lesser value, but a comprehensive consideration based on value, reflecting the requirements of the principle of adapting the crime, responsibility and punishment.

  Interpretation 2

  Farmers should use comprehensive discretion in hunting wild boar to protect crops

  "It needs to be emphasized that in judicial practice, we must be good at using comprehensive discretionary rules, dare to exercise discretion in prosecution and trial, and properly handle relevant cases." The person in charge of the Research Office of the Supreme People's Court and the Legal Policy Research Office of the Supreme People's Procuratorate introduced, for example, in the past In judicial practice, the "two prohibitions" are often used as the criminal standard, that is, "the use of prohibited methods or prohibited tools that seriously damage fishery resources such as electric fish, poisonous fish, and fried fish during the fishing prohibition period" constitutes the crime of illegal fishing of aquatic products. .

However, the quantity of aquatic products caught under the above circumstances varies greatly. Some are hundreds of kilograms or even thousands of kilograms, while others are only a few kilograms with a value of only tens of yuan. Moreover, it is the first offense, and all of them will be convicted. strict.

  Based on this, the "Interpretation" specifically stipulates that in cases of illegal fishing of aquatic products that meet the "two prohibitions" standards, according to the quantity, value, fishing methods, tools and other circumstances of the catch, it is considered that the harm to aquatic biological resources is obviously less. Considering the circumstances of the perpetrator voluntarily accepting administrative punishment, actively restoring the ecological environment, etc., it can be determined that the crime is minor, and no prosecution or criminal punishment shall be waived; if the circumstances are significant and minor and the harm is not great, it shall not be treated as a crime.

  The person in charge of the Research Office of the Supreme People's Court and the Legal Policy Research Office of the Supreme People's Procuratorate said that this provision gives the judicial authority a certain discretion, and can comprehensively consider the minimum mesh size of the net gear, the power intensity of the fishing gear, and the juvenile fish in the catch. The proportion and other circumstances comprehensively judge the specific harm of the behavior to the fishery resources, and realize the proper handling of the case.

If the quantity of fished aquatic products is small and the value is small, but the damage to aquatic resources is relatively large, they should also be convicted and punished; for the fished aquatic products with small quantity and small value, and the harm to aquatic resources is obviously less, no punishment shall be given. criminal prosecution.

  For another example, with the increase in the number of wild animals, the harm caused by wild animals has occurred from time to time, and even people have been injured.

Some farmers take preventive measures to hunt wild boars in order to protect crops from damage. For such cases, they should seek truth from facts and make comprehensive judgments.

  Interpretation 3

  Buying and selling captive-bred wild animals as pets or non-criminal

  The Interpretation stipulates that if the animals involved in the case are artificially bred and have any of the following circumstances, the case in question shall generally not be treated as a crime; if criminal responsibility needs to be investigated, it shall be dealt with leniently in accordance with the law: (1) It is included in the national key protection of artificial breeding. (2) The artificial breeding technology is mature and has reached a scale, and it is traded and transported as pets.

  The person in charge of the Research Office of the Supreme People's Court and the Legal Policy Research Office of the Supreme People's Procuratorate stated that in criminal prosecution, it is not appropriate to treat cases involving artificial breeding of wild animals and cases involving natural growth and breeding of wild animals in wild environments.

On the one hand, artificially bred wild animals are also wild animal resources and should be protected; on the other hand, artificially bred populations and wild populations of wild animals with mature and stable artificial breeding technology are managed according to the same standards, and the exact same conviction applies. Sentencing standards are not conducive to economic and social development and wildlife protection, nor are they in line with the general public perception.

  Original: Listed in the list of artificially bred wildlife under national key protection.

  Interpretation: With the development of economy and society and the improvement of scientific research level, many breakthroughs have been made in the artificial breeding of wild animals, and some rare and endangered wild animals have formed stable artificial breeding populations that are completely independent of wild resources.

According to the provisions of the first paragraph of Article 28 of the "Wild Animal Protection Law", there are currently three batches of 30 species of animals that have been included in the corresponding artificially bred national key protected wild animal list.

  Original text: The artificial breeding technology is mature and has reached a large scale, and it is used for pet trading and transportation.

  Interpretation: From a practical point of view, some wild animals have been artificially bred for a long time and the technology is mature, and the criminal investigation of related cases should be more cautious.

For example, according to media reports, the native place of Fei's peony parrot is the African tropical jungle, which is listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, and has been approved as a national second-class protected wild animal.

Since the 1980s, the Fei's peony parrot was introduced into my country. It has been artificially bred for more than 30 years, and the technology is very mature.

Due to historical reasons, most of the documents are incomplete.

For such cases, the investigation of criminal responsibility should be particularly cautious, and the focus should be on solving them through the improvement of relevant administrative management.

  Beijing News reporter Sha Xueliang

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