1 Does cutting down the trees planted by a farmer also constitute a crime of deforestation?
1. Cases
Browsing the Chinese prosecutor's network, I found a case:
In July 2022, Duan Moumou cut down and sold the eucalyptus trees he planted without going through the procedures for a felling permit. After review, it was determined that Duan XX was suspected of the crime of indiscriminate felling of trees, but in view of the slight circumstances of his crime, with statutory mitigating circumstances such as voluntary surrender and admission of guilt and acceptance of punishment, according to the provisions of the Criminal Law, it was not necessary to impose a criminal punishment, so it was decided not to prosecute Duan XX. [1]
This is a relative non-prosecution, which is a case where the circumstances of the crime are minor, and it is not a non-prosecution of innocence, and once the prosecution is brought to court, it is still possible to be sentenced. We searched and found that there were indeed similar cases of sentences.
When farmers cut down the trees they planted, they may not think of applying for a felling permit, but they are suspected of the crime of indiscriminate felling. This seems to be contrary to common sense, after all, this is your own tree, if you don't steal or rob, how can it be illegal? It is necessary to analyze this issue.
2. Provisions on the crime of indiscriminate felling of trees
The crime of indiscriminate felling of trees is a crime provided for in the second paragraph of Article 345 of the Criminal LawViolating the provisions of the Forest Law by indiscriminately felling forests or other forests, and the quantity is relatively large, a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge, the sentence is between three and seven years imprisonment and a concurrent fine. ”
Since the provisions of this crime are relatively simple, it is necessary to understand what is a violation of the forest law in conjunction with the provisions of the judicial interpretation. We cannot directly conclude that cutting down one's own trees will or may not constitute the crime of deforestation.
3. Conditions constituting indiscriminate felling of forests
Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Destruction of Forest Resources (Fa Shi 2023 No. 8) stipulates that in any of the following circumstances, it shall be found to be "indiscriminate felling of forests or other trees" as provided for in paragraph 2 of Article 345 of the Criminal Law:
1) Failure to obtain a felling permit, or violation of the time, place, quantity, species, and method specified in the felling permitArbitrarily cut down the forest owned by the unit or the personTarget;
2) Violation of the provisions of paragraph 3 of Article 56 of the Forest LawArbitrarily cut down the forest owned by the unit or the personTarget;
3) Felling trees owned by the State, collectives or others in excess of the prescribed quantity at the place specified in the felling permit.
If there is a dispute over the ownership of the forest, and one party does not obtain a felling permit, it shall be punished as indiscriminate felling of the forest.
Judging from the above provisions, felling one's own trees without obtaining a felling permit will really be suspected of "indiscriminate felling of forests or other trees". If there is a logging permit, if the forest is cut beyond the scope or in violation of the regulations, it will also be suspected of "indiscriminate felling of forests or other trees".
Ownership originally included the right to possess, use, benefit and dispose of, and you can do whatever you want, but the felling of trees is restricted. This is to be considered in terms of the interests involved in forests.
Article 1 of the Forest Law stipulates: "This Law is formulated in order to practice the concept that lucid waters and lush mountains are invaluable assets, protect, cultivate and rationally utilize forest resources, accelerate land greening, ensure forest ecological security, build ecological civilization, and realize the harmonious coexistence of man and nature." ”
Forests involve ecological security and civilization, the harmonious relationship between man and nature, and the public interest, which should be taken into account when individuals exercise ownership.
The way the law is adjusted is that the logger needs to obtain a felling permit issued by **, so that it will not constitute indiscriminate felling of trees, so as not to damage ecological security.
Fourth, there is no need to apply for a felling permit
Paragraphs 1 and 2 of Article 56 of the Forest Law stipulate that: "Felling of trees on forest land shall apply for a felling permit and be harvested in accordance with the provisions of the felling permit; Felling of bamboo forests outside nature reserves does not require an application for a felling permit, but shall comply with the technical regulations for forest felling. Rural residents do not need to apply for a felling permit to harvest sporadic trees on their own land and in front of and behind their houses
Paragraph 3 of Article 57 reads: ".Rural residents felling trees on their own mountains and individual contracted collective forest land shall be issued a felling permit by the people's forestry department at the county level or the township people's forest department entrusted by it
It can be seen that if it is to cut down forest land and keep trees on the mountain, then it is necessary to apply for a felling permit; If you are cutting down sporadic trees on your own land or in front of and behind your house, you do not need a logging permit.
5. What is forest land, self-cultivated mountains, and self-reserved land?
First, according to Article 83 of the Forest Law, forest land refers to the land used for the development of forestry determined by the people's planning at or above the county level.
Second, Article 10 of the Constitution and Article 9 of the Land Administration Law stipulate that self-retained mountains and self-retained land belong to collective ownership, but the meaning of these two is not clear. The concept of self-reserved land and self-cultivated mountains was formed in the fifties and sixties of the 20th century.
The Model Statute of Agricultural Production Cooperatives, adopted on 17 March 1956, stipulates that "in order to meet the needs of members for the cultivation of vegetables or other horticultural crops, members shall be allowed to have small plots of land for themselves".
Article 40 of the Regulations on the Work of Rural People's Communes (Draft Amendment) adopted on September 27, 1962 states that members of people's communes may "cultivate land reserved for themselves that is allocated by the collective. The self-reserved land generally accounts for 5 to 7 percent of the cultivated land area of the production team, and is used by the members' families and remains unchanged for a long time. In places where there are firewood mountains and barren slopes, an appropriate number of self-reserved mountains can also be allocated to the members according to the needs of the masses and the original habits, and the members can operate them. Since the demarcation of Rushan, it has remained unchanged for a long time. ”
It can be seen that self-reserved land is generally used to grow vegetables or other crops, and is generally not used to plant trees; If sporadic trees are planted, they can be cut without a harvesting permit.
Mt. Jiru is located in a place with a shiba mountain and a gentle slope, and it is generally used for planting trees, which has the function of forest land, and requires a logging permit before it can be felled.
6. The crime of indiscriminate felling of trees shall be the crime of indiscriminate felling of trees".The quantity is largeris a constituent element
The first paragraph of article 6 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Destruction of Forest Resources stipulates that where indiscriminate felling of forests or other forest trees and the trees involved in the case have any of the following circumstances, they shall be found to be "relatively large quantities" as provided for in the second paragraph of Article 345 of the Criminal Law:
1) Standing timber accumulationTwenty cubic metersabove;
b).1,000 young treesabove;
3) Although the quantity does not meet the standards specified in items 1 and 2 respectively, but the total amount of the corresponding proportion is converted to meet the relevant standards;
iv).Worth 50,000 yuanabove;
As a result, if farmers do not have a logging permit, but only sporadically cut down trees on the "self-reserved mountains" to use as firewood for cooking, it is difficult to meet the above-mentioned "large quantity" standard.
However, if the farmer wants a relatively large area of "self-retained mountain" trees, it may reach the standard of "large quantity", and before felling, it is necessary to apply for a felling permit in advance through the county forestry bureau or the town in accordance with the third paragraph of Article 57, so as to avoid being suspected of the crime of indiscriminate felling of trees.
1] China Prosecutor's Network: "Yunnan Stone Forest: Is it illegal to cut down the trees you planted?" Accessed February 26.
Author: Li Zhipeng, criminal defense lawyer.