1. Overview
There is no killing without buying and selling. There is no doubt that criminal responsibility should be pursued for the crime of destroying wildlife resources.
However, whether a crime is constituted shall be determined in strict accordance with the principle of legality of crimes. In China's judicial practice, the principle of consistency between subjectivity and objectivity must be adhered to in determining crimes.
According toThe principle of unity of subjectivity and objectivity, in determining that the perpetrator constitutes a crime, not only requires that the perpetrator objectively carried out an act that has serious harm to society, but also requires that the perpetrator subjectively have a certain degree of guilt for the harmful conduct committed. Whether it is intentional or negligent, according to the provisions of articles 14 and 15 of the Criminal Law, a common feature that must be embodied is that the perpetrator has a certain understanding of the harmful conduct carried out or should have a certain understanding.
Because the crime of endangering precious or endangered wildlife and the crime of smuggling precious animals or precious animal products are intentional crimes, when making a specific determination, the perpetrator should be considered: (1) whether or is uncertain whether the smuggling, acquisition and other acts of harm to precious animals or their products have been carried out; (2) Whether the object of infringement is a rare or endangered wild animal or its products; (3) whether it has a serious criminal offense and is worthy of criminal punishment, that is, whether it meets the corresponding monetary standard; (4) Whether there is an intention to commit harmful acts. In the absence of one of them, they may be found innocent.
2. Analysis of the argument of innocence
(1) No crime is committed without act
Crime is act". To determine whether a person has committed a crime, it is first necessary to determine whether he or she has committed an act prohibited by criminal law. It is generally believed that harmful acts in the sense of criminal law refer to physical activities that are harmful to society and prohibited by criminal law carried out by the perpetrator under the control of his will. In other words, a harmful act under the control of human consciousness and will can only be regarded as a harmful act with objective elements of a crime when it violates the norms of the criminal law.
Specifically, in the case of crimes against precious animals or their products, they should have committed acts such as smuggling and purchasing prohibited by the Criminal Law. However, the determination of a crime requires conclusive and sufficient evidence to prove it, and it is not a simple logical deduction. Therefore, in the absence of evidence to prove that the perpetrator committed an act against animals or their products prohibited by the criminal law or if the evidence is insufficient, it should be found that the perpetrator has not committed such a crime. Such as:
In(2018) Xiang 0121 Xingchu No. 26(2018) Xiang 01 Xingzhong No. 582case,The court held that the crime of illegally purchasing precious and endangered wildlife products refers to the act of purchasing precious and endangered wildlife products under national key protection in violation of wildlife protection regulationsAmong them, the acquisition includes the purchase for profit, self-use, etc., without the purchase behavior, the acquisition cannot be established; In the evidence in this case, it is proved that the defendant Long Zhiyong purchased the pangolin scales of the national second-class key protected wildlife involved in the case, only his own confession, no other evidence corroborated it, and did not form a complete chain of evidence, and there are multiple possibilities for the pangolin scales of the national second-class key protected wild animal involved in the case, which he carried to the private restaurant in Room 202, Building 24, Changfeng Star City, Xianglong Street, Changsha County, and his "purchase" cannot be excluded from reasonable doubt, and the standard of proof for the evidence is credible and sufficient. The prosecution charged the defendant Long Zhiyong with the crime of illegally purchasing precious and endangered wildlife products, and the facts were unclear and the evidence was insufficient, and the alleged crime could not be established.
In(2014) Heilin Xing Zhong Zi No. 40case, the Court held that:Appellants Bao, Bao, Tian and Su carried macaques, a national second-class key protected wild animal, from Xinye County, Henan Province to Mudanjiang City, Heilongjiang Province without applying to the administrative department for a transportation certificate with a domestication and breeding license, violating the provisions of the relevant national wildlife protection regulations that the transportation and carrying of wild animals under national key protection out of the county must be approved by the provincial-level people's ** wildlife administrative department or its authorized unitIn view of the fact that the monkey art performance is a traditional folk art in Xinye County, Henan Province, the four appellants used their leisure time to perform monkey performances in other places to make a profit, and objectively needed to transport macaques over long distancesThe grounds of appeal and defense opinions put forward by the four appellants and their defenders that the four appellants should be acquitted are adopted.
In(2017) Liao 01 Xingzhong No. 126case, the Court held that:The original judgment found that the fact that the appellant (defendant in the original trial) Li Rongqing and Li Ruisheng's jointly operated a certain circus and acrobatic troupe in Dongguang County transported rare and endangered wild animals for circus performances without going through the relevant transportation permit formalities, but it was in accordance with the factsAccording to the relevant provisions of the revised "Wildlife Protection of the People's Republic of China", which came into effect during the second instance, the transportation and carrying of wild animals under national key protection and their products out of the county border does not need to be approved by the competent administrative department, so the second appellant's act of transporting wild animals with legal domestication and breeding permits is no longer criminally illegalIt does not meet the constitutive elements of the crime of illegally transporting rare or endangered wildlife as provided for in article 341 of the Criminal Law of the People's Republic of China, and shall not be found to be a crime.
(2) Object
In the case of crimes involving precious or endangered wild animals, it is particularly important whether the animals or their products are precious or endangered wild animals, and the Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Destruction of Wildlife Resources (effective April 9, 2022) clearly stipulates this. Where:
The crime of smuggling is committed to:(1) Included in the appendix of the International Convention on the Import and Export of Endangered Species of Wild Fauna and Flora published by the National Administration for the Import and Export of Endangered Species.
1. Wildlife and the products thereof in Appendix II; (2) Export of wild animals and their products included in the List of Wild Animals under National Key Protection.
Illegal hunting, killingAcquisition, Transportation, **The object is:(1) Wild animals included in the List of Wild Animals under National Key Protection; (2) Wildlife that has been approved by the competent department for the protection of wild animals and is managed in accordance with national key protection. As far as wildlife listed in Appendices 1 and 2 of the International Convention on Endangered Species of Wild Fauna and Flora are concerned, the premise for applying the first paragraph of Article 341 of the Criminal Law can only be that the wildlife protection department approves the management of wildlife under national key protection.
It is worth noting that, in accordance with the foregoing,:ForThe animals involved in the case were artificially bredDepartmentIt is included in the list of artificially bred wild animals under national key protectionorWhere the artificial breeding technology is mature and has reached a scale, and it is used as a pet sale or transportation, the case involved is generally not to be handled as a crime; Where it is necessary to pursue criminal responsibility, it shall be given a lenient disposition in accordance with law
If the animal involved in the case is not in the above categories, it shall be innocent。The specific cases are as follows:
In(2006) Qiong Xing Zhong Zi No. 25case, the Court held that:The appellants (defendants in the original trial) Qionghai Craft Factory, Qiu Mengyi, Dai Shixianling, the defendant in the original trial, Hengliquan Import and Export Company, and the defendant in the original trial, Cai Chongwei, evaded customs supervision and adopted the method of falsely reporting the name of the goods to carry out smuggling, but after the smuggling occurred, the Administration Office for the Import and Export of Endangered Species of the People's Republic of China and the General Administration of Customs issued the Announcement No. 2004 of the General Administration of Customs of the State Endangered Species Management Office and the annex to the announcement: Catalogue of Imported and Exported Wild Animal and Plant Species, which was confirmedfrom005 yearSince then, the crown snail has been no longer included in the list of restricted commodities, and there is no need to apply for the certificate of import and export permission for endangered species of wild animals and plants, and the crown snail has been regarded as ordinary goods, so its behavior is no longer regarded as a crime. In accordance with the principle of leniency and leniency, he should be acquitted.
In(2015) U.S. Criminal Heavy Zi No. 4case, the Court held that:Luluheng Company was issued the "Domestication and Breeding License for National Key Protected Wild Animals" by the State Forestry Administration, and obtained the qualification of artificial domestication and breeding of sika deer. The sika deer artificially bred by the defendant Fang Fuqin in his company is a commercial business activity. On November 18, 2011, the Supreme People's Court issued the (2011) Xing Ta Zi No. 86 reply on the case of the defendant Zheng Xihe's request for instructions on the crime of illegally purchasing rare and endangered wild animals and products of precious and endangered wild animals, that is, "54 species of terrestrial wild animals such as sika deer that can be used for commercial purposes as stipulated by the State Forestry Administration for artificial breeding are not the targets of crimes as provided for in the first paragraph of Article 341 of the Criminal Law. Defendant Zheng Xihe's act of acquiring tiger striped frogs artificially bred by others for the purpose of commercial operation and use without a license does not constitute the crime of illegally purchasing rare and endangered wild animals." Refer to the Supreme People's Court's (2011) Xing Ta Zi No. 86 ReplyThe eight sika deer involved in this case that were artificially bred and used for commercial purposes should not be the targets of crimes as provided for in paragraph 1 of Article 341 of the Criminal Law. Therefore, the defendant Fang's behavior does not constitute the crime of illegal ** precious and endangered wild animals; Defendant Li Kanguo's conduct does not constitute the crime of illegally acquiring, ** rare and endangered wild animals, or illegally killing rare and endangered wild animals.
Other cases related to the previous case include (2017) Qiong 0106 Xing Zai No. 3 and (2017) Qiong 0106 Xing Zai No. 4 case.
In(2016) Ji 0702 Xingchu No. 108(2018) Ji 07 Xingzhong No. 167case, the Court held that:The evidence that determined that the animal involved in this case was an Amur falcon was the judicial appraisal opinion of Zhangjiakou Dingsheng Forestry Judicial Appraisal Center, but the procedure was illegal in the process of judicial appraisal, and the defendant was not present to confirm the sample materials during the appraisalThe investigating authorities did not fix the evidence of the seized animals involved in the case for testing, and reasonable doubt cannot be excluded as to whether the samples submitted for inspection and the seized animals involved in the case are consistent.
In2016 Yue Xing Zhong No. 870case, the Court held that:Even if one bracelet identified as modern elephant ivory is returned, and assuming that the bracelet is one of the alleged batch of bracelets, it cannot be presumed that the other bracelets are ivory products of modern elephants. Although Zhou Peng, who had experience in ivory processing, confessed that he believed that the bracelets were the ivory products of modern elephants after seeing them, there was no appraisal agency or appraiser with appraisal qualifications to make an appraisal, and Zhou Peng's confession alone could not determine that the other bracelets that had not been returned were the ivory products of modern elephants.
(3) Where the amount standard is not met, it cannot be found to be a crime
According to the above-mentioned judicial interpretation, whether it is smuggling or other harmful acts, the standard for conviction of wildlife crimes is based on value. "Worth more than 20,000 yuan" is the starting point for this type of crime. And,There are no aggravating circumstances, inThe value is more than 20,000 yuan but less than 200,000 yuanIntervalsmay be found to be a minor crime, and no prosecution or criminal punishment may be waived; Where the circumstances are obviously minor and the harm is not great, it is not to be handled as a crime. Such as:
InJingtong Procuratorate Criminal Non-Prosecution No. 2023 No. 530In the case, the procuratorate held that:The person who was not prosecuted, Li Moumou, was suspected of being an eagle specimen through Xianyu Network. After identification, the specimen involved in the case was the eagle eagle family hairy-legged buzzard, which is a national second-class key protected wild animalThe overall value is RMB 25,000. The person not being prosecuted, Mr. Li, carried out the conduct provided for in paragraph 1 of article 341 of the Criminal Law of the People's Republic of ChinaHowever, the circumstances of the crime are minor, and there are circumstances such as attempted crime, truthful confession, and admission of guilt and acceptance of punishmentAccording to article 37 of the Criminal Law of the People's Republic of China, no criminal punishment is required.
InWutie Procuratorate Non-Prosecution No. 2023 No. 155case, prosecutorialThe court thinksThe person who was not prosecuted, Liu Moujia, illegally purchased tortoiseshell products of wild animals under national first-class key protectionWorth RMB 80,000,00It violated Article 341 of the Criminal Law of the People's Republic of China, constituting the crime of endangering precious and endangered wild animals. In accordance with the provisions of Article 6, Paragraph 3, Item 3 of the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Destruction of Wildlife Resources".Where the illegal acquisition of rare or endangered wildlife under key national protection and the products thereof does not cause the death of the animal or the animal or animal product cannot be recovered, and the perpetrator returns all the stolen goods and makes restitution, and truly shows remorse, and the value of the rare or endangered wildlife and the products thereof is between 20,000 and 200,000 RMB, it may be found that the circumstances of the crime are minor, and no prosecution or criminal punishment is waived. After Liu Moujia arrived at the case, he truthfully confessed the facts of the crime, voluntarily pleaded guilty and accepted punishment, and actively returned the stolen goods. On the basis of the second paragraph of article 177 of the Criminal Procedure Law of the People's Republic of China, it was decided not to prosecute Liu Moujia.
There are similar casesKutie Procuratorate Non-Prosecution No. 2023 No. 270Mian County Procuratorate Criminal Non-Prosecution No. 2023 No. 32Wait.
(4) No intention, that is, no crime
Crimes that endanger rare or endangered wildlife, such as smuggling or acquisition, are intentional crimes. If there is no intent to commit a crime or the evidence cannot prove the intent to commit a crime, it shall be found not guilty.
In(2016) Ji 0702 Xingchu No. 108(2018) Ji 07 Xingzhong No. 167case, lawThe court thinksThe crime of illegally acquiring rare or endangered wildlife must be intentional in the subjective aspect, that is, the perpetrator must know that it is a rare or endangered wild animal under key national protection. Negligent acts committed because of lack of knowledge of animals or ignorance of the animals and do not believe that the acquired animals are precious or endangered wild animals do not constitute this crime. In this case, the only evidence that can be determined that the defendant Li Moumou knew that the animals he purchased were precious and endangered wild animals was Li Moumou's first confession in the investigation stage, and from the confession in the second investigation stage to **, Li Moumou argued that because the six Amur falcons were still young birds at the time of purchase, they could not be identified as falcons from their body shape and physical signs, and they did not know that the acquired species were falcons. Throughout the case, it was found that the defendant Li XX had subjective intent and had no other evidence to support it. Therefore, this court finds that there is insufficient evidence to determine that defendant Li XX subjectively and intentionally acquired rare and endangered wild animals.
In(2016) Yun Xing Zhong No. 1539case, the Court held that:The evidence in the case could not prove that the appellants Luo Jianzhi and Li Silong had the intent to smuggle, and the original judgment found that the second appellant had committed the crime of smuggling precious animal products with unclear facts and insufficient evidence; As the person in charge of the means of transport, the two did not strictly follow the system to handle the relevant procedures for the goods transported, failed to truthfully declare to the customs, and violated relevant laws and regulations and job responsibilities, but their behavior did not constitute a crime and were not subject to criminal punishment.
In(2015) Xin Xing San Zhong Zi No. 83case, the Court held that:Although the defendant in the original trial, Yuan Chao, was entrusted by others to receive the black pond turtle transported by Nizamuddin, butThe available evidence cannot prove that he knew that the black pond turtle was a precious animal protected by the state and that it was smuggled into the country by Nizamuddin, and it cannot be determined that he had the criminal intent to smuggle precious animalsThe original verdict acquitted him of all things was not improper.
Of course, a case of innocence can only be used as a reference for the defense of similar cases, and it may not necessarily lead to the same judgment of similar cases by judicial organs.