China News Service, April 7th, according to the WeChat public account of the Supreme People's Procuratorate, 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" (hereinafter referred to as the "Interpretation"). ), the "Interpretation" makes it clear that the crime of destroying wildlife resources is no longer only quantitative, but value is the basic standard for conviction and sentencing.
The Interpretation aims at the new situation and new problems of the crime of destroying wildlife resources, from the judicial link, punishes the crime of destroying wildlife resources in accordance with the law, and provides a strong judicial guarantee for promoting the construction of ecological civilization.
The Interpretation shall come into force on April 9, 2022.
The Interpretation mainly clarifies the following issues:
The first is to adjust the conviction and sentencing standards for crimes of destroying wildlife resources.
The crime of destroying wildlife resources involves the crime of smuggling precious animals and precious animal products, the crime of illegal fishing of aquatic products, the crime of endangering precious and endangered wild animals, the crime of illegal hunting, the crime of illegally hunting, purchasing, transporting, and selling terrestrial wild animals.
In the past, judicial interpretations stipulated the standards for conviction and sentencing of relevant crimes according to the number of animals involved, and practice reflects that there are problems that cannot fully adapt to the complex circumstances of the case.
In view of this, the "Interpretation" is no longer a quantitative theory for the crime of destroying wildlife resources, but instead takes value as the basic standard of conviction and sentencing, so as to better reflect the requirements of the principle of adapting guilt and punishment.
The second is to punish the crime of destroying wildlife resources in the whole chain.
At present, the crime of destroying wildlife resources forms an interest chain of "fishing/hunting-purchasing-trafficking".
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 is newly added in Amendment (XI) to the Criminal Law.
The third is to clarify the handling rules for cases of artificial breeding of wild animals.
At present, 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.
In criminal investigation, 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.
In view of this, the "Interpretation" stipulates that if the animal involved in the case is artificially bred and has one of the following circumstances, the case involved will generally not be treated as a crime; if criminal responsibility needs to be investigated, it should be dealt with leniently in accordance with the law: (1) Included in artificial breeding (2) The artificial breeding technology is mature and has reached a large scale, and it is traded and transported as pets.
It is reported that in the next step, the "two highs" will guide the local people's courts and people's procuratorates at all levels to strictly implement the criminal law and judicial interpretations, give full play to judicial functions, punish crimes that destroy wildlife resources in accordance with the law, effectively protect the ecological environment, and maintain biodiversity. sex and ecological balance.
Supreme People's Court Supreme People's Procuratorate
Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Destruction of Wildlife Resources
(Adopted at the 1856th meeting of the Judicial Committee of the Supreme People's Court on December 13, 2021, and passed at the 89th meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on February 9, 2022, and implemented on April 9, 2022)
In order to punish crimes of destroying wildlife resources in accordance with the law, protect the ecological environment, and maintain biodiversity and ecological balance, in accordance with the relevant provisions of the Criminal Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China, and the Wildlife Protection Law of the People's Republic of China , and hereby explain some issues concerning the application of law in handling such criminal cases as follows:
Article 1 Any one of the following circumstances shall be identified as smuggling precious animals and their products prohibited by the state from being imported and exported as stipulated in Paragraph 2 of Article 151 of the Criminal Law:
(1) Unauthorized import and export of wild animals and their products listed in Appendices 1 and 2 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora published by the national endangered species import and export management agency;
(2) Unauthorized export of wild animals and their products listed in the "List of National Key Protected Wild Animals".
Article 2 Whoever smuggles precious animals and their products that are prohibited from import and export by the state, with a value of more than 200,000 yuan but not more than 2 million yuan, shall be smuggled precious animals, The crime of 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 determined as "the circumstances are particularly serious", and shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and confiscation of property; If it is more than 20,000 yuan but less than 200,000 yuan, it shall be determined as "the circumstances are relatively minor" and shall be sentenced to fixed-term imprisonment of not more than five years and a fine.
Whoever commits the acts prescribed in the preceding paragraph and falls under any of the following circumstances shall be given a heavier punishment:
(1) Belonging to the leader of a criminal group;
(2) In order to evade supervision, it is carried out by using special means of transportation;
(3) Those who have received administrative penalties for destroying wildlife resources within two years.
If the conduct specified in Paragraph 1 does not fall under the circumstances specified in Paragraph 2, and does not result in the death of the animal or the animals and animal products cannot be recovered, the perpetrator shall return all the loot and compensation, and if he does show repentance, the following provisions shall be followed:
(1) Precious animals and their products worth more than 2 million yuan shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years, and shall also be fined;
(2) If the value of precious animals and their products is more than 200,000 yuan but less than 2,000,000 yuan, it may be determined as "the circumstances are relatively minor" and sentenced to fixed-term imprisonment of not more than five years and a fine;
(3) If the value of precious animals and their products is more than 20,000 yuan but less than 200,000 yuan, it may be determined that the crime is minor, and no prosecution or criminal punishment is waived; where the circumstances are significant and minor and the harm is not great, it shall not be treated as a crime.
Article 3 In inland waters, in violation of laws and regulations on the protection of aquatic resources, fishing for aquatic products in prohibited areas, prohibited fishing periods, or using prohibited tools or methods, under any of the following circumstances, it shall be determined as Article 340 of the Criminal Law The stipulated "serious circumstances" are convicted and punished for the crime of illegal fishing of aquatic products:
(1) Illegal fishing of more than 500 kilograms of aquatic products or the value of more than 10,000 yuan;
(2) Illegal fishing of aquatic animal fry and broodstock with important economic value, or fishing for aquatic products of more than 50 kilograms or worth more than 1,000 yuan in an aquatic germplasm resource reserve;
(3) Fishing in prohibited fishing areas using prohibited methods or prohibited tools such as electric fish, poisonous fish, and fried fish that seriously damage fishery resources;
(4) Fishing using prohibited methods or prohibited tools that seriously damage fishery resources, such as electric fish, poisonous fish, and fried fish, during the fishing prohibition period;
(5) Other circumstances where the circumstances are serious.
Whoever commits the acts prescribed in the preceding paragraph and falls under any of the following circumstances shall be given a heavier punishment:
(1) Violently resisting or obstructing state functionaries from performing their duties according to law, which has not yet constituted the crime of obstructing public affairs or assaulting a police officer;
(2) Those who have received administrative penalties for destroying wildlife resources within two years;
(3) causing serious damage to aquatic biological resources or water ecology;
(4) Gathering multiple vessels for illegal fishing;
(5) Those engaged in illegal fishing.
When implementing the acts prescribed in the first paragraph, according to the quantity, value, fishing methods, tools, etc. of the catches, it is considered that the harm to aquatic biological resources is obviously less, and the circumstances of the perpetrator's voluntary acceptance of administrative punishment and active restoration of the ecological environment shall be considered comprehensively. It can be determined that the circumstances of the crime are minor, and no prosecution or criminal punishment shall be waived; if the circumstances are obviously minor and the harm is not great, it shall not be treated as a crime.
Article 4 The "precious and endangered wild animals under special state protection" stipulated in Paragraph 1 of Article 341 of the Criminal Law include:
(1) Wild animals included in the "List of National Key Protected Wild Animals";
(2) Wild animals that have been approved by the competent department of wildlife protection under the State Council to be managed as wildlife under key national protection.
Article 5 "Acquisition" as stipulated in Paragraph 1 of Article 341 of the Criminal Law includes purchases for the purpose of making profits and self-use; "transportation" includes transporting by means of carrying, mailing, using others, using means of transportation, etc. "Sale" includes selling and processing and utilization for profit.
"Acquisition", "transportation" and "sale" as stipulated in Paragraph 3 of Article 341 of the Criminal Law refer to the implementation of the corresponding acts specified in the preceding paragraph for the purpose of consumption.
Article 6 Anyone who illegally hunts or kills precious or endangered wild animals under special state protection, or illegally acquires, transports or sells precious or endangered wild animals under special state protection and their products, with a value of more than 20,000 yuan but less than 200,000 yuan, According to the provisions of Paragraph 1 of Article 341 of the Criminal Law, the crime of endangering precious and endangered wild animals shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine; It shall be identified as "serious circumstances" and shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years, and a fine; if the value is more than 2 million yuan, it shall be identified as "especially serious", and shall be sentenced to fixed-term imprisonment of not less than 10 years, with a fine or a fine. Confiscation of property.
Whoever commits the acts prescribed in the preceding paragraph and falls under any of the following circumstances shall be given a heavier punishment:
(1) Belonging to the leader of a criminal group;
(2) In order to evade supervision, it is carried out by using special means of transportation;
(3) Seriously affecting the scientific research of wild animals;
(4) Those who have received administrative penalties for destroying wildlife resources within two years.
If the conduct specified in Paragraph 1 does not fall under the circumstances specified in Paragraph 2, and does not result in the death of the animal or the animals and animal products cannot be recovered, the perpetrator shall return all the loot and compensation, and if he does show repentance, the following provisions shall be followed:
(1) Precious and endangered wild animals and their products worth more than 2 million yuan, may be identified as "serious circumstances" and sentenced to fixed-term imprisonment of not less than five years but not more than 10 years, and a fine;
(2) Precious and endangered wild animals and their products are worth more than 200,000 yuan but not more than 2,000,000 yuan, may be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine;
(3) If the value of precious or endangered wild animals and their products is more than 20,000 yuan and less than 200,000 yuan, it may be determined that the crime is minor, and no prosecution or criminal punishment will be waived; if the circumstances are significant and minor and the harm is not great, it will not be treated as a crime .
Article 7 Anyone who violates hunting regulations, hunts in prohibited areas, or uses prohibited tools or methods for hunting, and destroys wildlife resources, under any of the following circumstances, shall be identified as Criminal Law No. 341.2 The "serious circumstances" stipulated in the paragraph shall be convicted and punished for the crime of illegal hunting:
(1) Illegal hunting of wild animals worth more than 10,000 yuan;
(2) Hunting using prohibited tools or methods in a hunting sanctuary;
(3) Hunting using prohibited tools or methods during the hunting ban;
(4) Other circumstances where the circumstances are serious.
Whoever commits the acts prescribed in the preceding paragraph and falls under any of the following circumstances shall be given a heavier punishment:
(1) Violently resisting or obstructing state functionaries from performing their duties according to law, which has not yet constituted the crime of obstructing public affairs or assaulting a police officer;
(2) Serious damage to wildlife resources or habitat ecology;
(3) Those who have received administrative penalties for destroying wildlife resources within two years.
To implement the acts prescribed in the first paragraph, according to the quantity, value, hunting methods, tools, etc. of the prey, it is considered that the harm to wild animal resources is obviously less, and the motive and purpose of the hunting shall be comprehensively considered, and the perpetrator voluntarily accepts administrative punishment, Circumstances such as active restoration of the ecological environment may be deemed as minor crimes, and no prosecution or criminal punishment shall be waived; where the circumstances are significant and minor and the harm is not great, it shall not be treated as a crime.
Article 8 Violating regulations on the protection and management of wild animals, illegally hunting, purchasing, transporting, or selling terrestrial wild animals that grow and breed naturally in the wild outside the provisions of Paragraph 1 of Article 341 of the Criminal Law for the purpose of eating, Under any of the following circumstances, it shall be determined as "serious circumstances" as stipulated in Paragraph 3 of Article 341 of the Criminal Law, and shall be convicted and punished for the crime of illegally hunting, purchasing, transporting or selling terrestrial wildlife:
(1) Illegal hunting, acquisition, transportation or sale of terrestrial wild animals of important ecological, scientific and social value or terrestrial wild animals under local key protection worth more than 10,000 yuan;
(2) Illegal hunting, purchasing, transporting or selling of other terrestrial wild animals with a value of more than 50,000 yuan other than those specified in the first item;
(3) Other circumstances where the circumstances are serious.
Whoever commits the acts prescribed in the preceding paragraph and also constitutes the crime of illegal hunting shall be convicted and punished for the crime of illegally hunting terrestrial wild animals in accordance with the provisions of Paragraph 3 of Article 341 of the Criminal Law.
Article 9 Whoever purchases, sells, or conceals or conceals by other means the aquatic products obtained from illegal fishing or the illegal hunting crime, which conforms to the provisions of Article 312 of the Criminal Law, shall be used to conceal or conceal the crime. convicted and punished.
Article 10 If the staff of state organs responsible for wildlife protection and import and export supervision and management abuse their powers or neglect their duties, causing heavy losses to public property, the interests of the state and the people, they shall be subject to Article 397 of the Criminal Law. It is stipulated that criminal responsibility shall be investigated for the crime of abuse of power or the crime of dereliction of duty.
State organ staff responsible for investigating and prohibiting criminal activities that destroy wildlife resources, who inform criminals, provide convenience, and help criminals evade punishment, shall follow the provisions of Article 417 of the Criminal Law to help criminals escape Punishment shall be investigated for criminal responsibility.
Article 11 For the "purpose of consumption", the identification shall be made based on the characteristics of the animals involved and their products, the location where they were seized, their processing and packaging, as well as signs and certificates that can prove the source and use.
The implementation of the relevant acts stipulated in this Interpretation, under any of the following circumstances, can be deemed as "for the purpose of consumption":
(1) Selling relevant wild animals and their products as food in catering units, food stalls, supermarkets and other places or transporting them to the above-mentioned places;
(2) introducing the edible value or methods of relevant wild animals and their products through packaging, instructions, advertisements, etc.;
(3) Other circumstances sufficient to determine the purpose of consumption.
Article 12 Where the conduct prescribed in this Interpretation more than two times constitutes a crime and should be prosecuted according to law, or where the conduct prescribed in this Interpretation has not been dealt with within two years, the number and amount shall be calculated cumulatively.
Article 13 When determining whether the relevant acts stipulated in this Interpretation constitute a crime and determine the penalty, it shall consider whether the animal involved is artificially bred, the endangered degree of the species, the survival status in the wild, the artificial breeding situation, and whether it is included in the artificial breeding country. The list of key protected wild animals, the means of behavior, the degree of damage to wild animal resources, and the degree of awareness of wild animals and their products, comprehensively assess the social harm, accurately determine whether a crime is constituted, and appropriately determine the penalty to ensure the crime. According to the provisions of this Interpretation, if the conviction and sentencing are obviously excessive, appropriate handling may be made in accordance with the law according to the facts, circumstances and social harm of the case.
If the animal involved in the case is artificially bred and falls under any of the following circumstances, the case involved 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) Those listed in the catalogue of artificially bred wildlife under national key protection;
(2) The artificial breeding technology is mature and has reached a scale, and it is used for pet trading and transportation.
Article 14 If the perpetrators who are not prosecuted or exempted from criminal punishment for carrying out the relevant acts stipulated in this Interpretation shall be given administrative punishments, governmental sanctions or other sanctions according to law, they shall be transferred to the relevant competent authorities for handling according to law.
Article 15 The value of the animals involved and their products shall be determined according to the following methods:
(1) Calculate the value of precious animals and their products whose import and export is prohibited by the state, and precious and endangered wild animals and their products under special state protection, according to the evaluation standards and methods formulated by the competent department of wildlife protection under the State Council;
(2) The value of terrestrial wild animals with important ecological, scientific and social value, wild animals under special local protection, other wild animals and their products shall be determined according to the amount of stolen goods sold; If it is determined that it is obviously low, it shall be calculated according to the market price, and when necessary, it can also be calculated with reference to the relevant evaluation standards and methods.
Article 16 If it is difficult to determine the value of the animals involved and their products according to the provisions of Article 15 of this Interpretation, the determination shall be made on the basis of the appraisal opinions issued by the judicial appraisal institutions, or the reports issued by the following institutions, in combination with other evidence:
(1) A report issued by a price certification body;
(2) A report issued by the competent department of wildlife protection under the State Council, the national administration for the import and export of endangered species, or the agency designated by the General Administration of Customs;
(3) Reports issued by the competent department of wildlife protection of the people's government at or above the prefecture or city level, the dispatched agency of the national administration agency for the import and export of endangered species, or the customs directly under it.
Article 17 Special issues such as the species and category of the animals involved, whether they are artificially bred, the tools and methods of illegal fishing and hunting, and the degree of damage to wild animal resources may be determined by the competent department of wildlife protection and the investigation agency. On-site inspection, inspection records, etc. to issue a determination opinion; if it is difficult to determine, based on the identification opinion issued by the judicial identification institution, the report issued by the institutions listed in Article 16 of this Interpretation, the evidentiary materials provided by the defendant and his defender, combined with other evidence A comprehensive review of the materials will be made in accordance with the law.
Article 18 Where a catering company, fishery company or other unit commits the crime of destroying wildlife resources, the directly responsible person in charge and other directly responsible personnel shall be convicted and punished in accordance with the standards for conviction and sentencing of the corresponding natural person crime stipulated in this Interpretation, and the unit shall be sentenced to fine.
Article 19 In marine waters, illegal fishing of aquatic products, illegal harvesting of corals, clam clam or other rare and endangered aquatic wild animals, or illegal acquisition, transportation or sale of corals, clam clam or other precious and endangered aquatic wild animals and their If the products are made, the standards for conviction and sentencing shall be governed by the relevant provisions of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Cases Occurring in the Sea Areas Under my country's Jurisdiction (2)" (Fa Shi [2016] No. 17).
Article 20 This Interpretation shall come into force on April 9, 2022.
After the promulgation and implementation of this Interpretation, the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Destruction of Wildlife Resources (Fa Shi [2000] No. 37) shall be repealed at the same time; if the judicial interpretations issued before are inconsistent with this interpretation, the This interpretation shall prevail.