Viewpoint | Analysis of the Review of Appraisal Opinions in the Crime of Illegal Mining

In the process of dealing with illegal mining cases, we can judge whether the appraisal opinions provided by the public prosecution organ have the ability of proof and evidence from the following aspects, so as to realize the reasonable judgment of the case:

According to the provisions on the procedures for the appraisal of the value of mineral resources caused by illegal mining and destructive mining (Guotuzifa [2005] No. 175), the case handling organ shall entrust the competent department of land and resources of the people's government at or above the provincial level to identify the value of mineral products in criminal cases of illegal mining, and issue an appraisal conclusion. The competent department of land and resources of the people's government at or below the provincial level may appraise cases with simple facts and uncomplicated technical requirements for appraisal, and submit the appraisal report and relevant investigation materials to the competent department of land and resources at the provincial level for review. Therefore, in the process of handling illegal mining criminal cases, we can analyze whether the subject of the appraisal opinion is in line with the legal provisions, and then judge whether the appraisal opinion should be adopted.

Case:(2020) Hunan 0421 Criminal Retrial No. 1 Criminal Judgment

In this case, when Hengyang County Natural Resources Bureau transferred the relevant evidence of the complainant Wang xx, the original trial defendants Hu xx and Zhang xx suspected of illegal mining crimes to the original investigation organ for investigation, the investigation organ should examine the evidence clues provided by the Natural Resources Bureau and screen the appraisal conclusions provided by the administrative organ. Entrusted by Hengyang Natural Resources Bureau, the First Exploration Team of Hunan Coal Geology Bureau in this case evaluated the value of illegal mining of mineral resources by the third defendant in the original trial, which obviously exceeded its business scope of measuring area and volume. The value of mineral resources destroyed by illegal mining by the third defendant in the original trial was determined by taking the middle price only based on the market sales price and direct production cost price issued by Chaohui Brick Factory in Xidu Town of Hengyang County and Caiyuan shale Brick Factory of Hengyang County, the method is not scientific, the conclusion is not rigorous, it is difficult to convince people.

Section 7 of Chapter II of the Criminal procedure Law provides corresponding provisions on the appraisal procedure, and the decision of the standing Committee of the National people's Congress on the Administration of Judicial expertise puts forward more detailed requirements for the appraisal procedure. the provisions on the appraisal procedure for the destruction of the value of mineral resources caused by illegal mining and destructive mining put forward special requirements for the appraisal procedure of the crime of illegal mining. When reviewing the appraisal opinions, you can focus on reviewing whether the entrusting subject complies with the law, whether the appraisal time exceeds the statutory time limit, whether the appraiser has relevant qualifications, whether the appraisal opinion is signed by the responsible person, and other highly technical procedures and methods comply with relevant regulations. Appraisal opinions made in violation of specific appraisal procedures may be regarded as illegal evidence and will not be adopted by the court.

Case:(2016) Ji 02 Criminal Judgment No. 547

Regarding the verification report of the Second Geological Brigade of Hebei Provincial Bureau of Geology and Mineral Resources and the price appraisal based on this report, the verification report was issued in October 2014, and the report was compiled by Wu Mou 2 and Liang Mou. According to the report, on August 19, 2014, the Second Geological Brigade of Hebei Provincial Bureau of Geology and Mineral Resources sent geological personnel Liang and Kong to collect data and conduct on-site investigations. The investigation organ submitted the qualifications of the three persons. The appraiser Wu Mou 2 was granted the qualification on December 2, 2014. When the verification report was issued, he was not qualified and did not participate in the on-site investigation and verification procedure. The report author did not sign the appraisal report. The above evidence confirms that the verification report and appraisal procedures of the Second Geological Brigade of the Hebei Provincial Bureau of Geology and Mineral Resources are illegal, and the basis for making the report is not objective and authentic and cannot be used as final evidence.

Case:(2018) Ji 0621 Criminal Judgment No.76 at the Beginning of Punishment

The two appraisals on the amount and value of earthwork destroyed mineral resources are mainly based on the "Detailed Investigation Report on the West Section of Dafang Iron Mine in Fusong County" made by Jiangyuan County Jinshi Mining Co., Ltd. in November 2009. The legality of the report is doubtful. First of all, the "Detailed Investigation Report on the West Section of Dafang Iron Mine in Fusong County, Jilin Province" was commissioned by Jiangyuan Jinshi Mining Co., Ltd., the interested party in this case, in a civil lawsuit. It was not commissioned by the investigative agency. Made by relevant departments. Secondly, the report is an important basis for the survey report of the Jilin Corps of the China Construction Industry Exploration Center for the destruction of asset resources and the resource loss valuation report of Jilin Guodi Mining Rights Assessment Co., Ltd. The prosecution was unable to provide the authors of the detailed investigation report, Wang xx, Zhang xx and Zhu xx, with their qualification certificates for mineral resources investigation and survey, nor could they contact the authors and notify them to appear in court to commit the crime.

The appraisal opinion is the evaluation of the value of mineral products obtained from illegal mining activities in a certain period of time or the value of mineral resources damage. Therefore, it is necessary to strictly grasp whether each time node selected by the appraisal opinion is completely consistent with the behavior of the suspect, such as the behavior time selected by the appraisal opinion, the price benchmark date, etc. If it can be proved that the time selected by the appraisal opinion is wrong, the appraisal opinion may lack of relevance with the facts, it should not be used as a basis for finalization.

Case:(2020) Guangdong 0823 Criminal Judgment No.42

The two appraisal opinions, "Appraisal Conclusion of Resource Destruction Value" and "Resource Reserves Test Report", assessed that Xiatang was illegally mined from March 2017 to September 2017, while the defendant Yang Yusheng in this case only joined Feng Yiqiang's illegal mining behavior on July 29, 2017, therefore, the amount of minerals illegally mined before July 29, 2017 and the loss of mineral resources caused by them should not be borne by the defendant Yang Yusheng. Therefore, the two appraisal opinions lack relevance and objectivity, so the court will not accept them.

Case:(2020) Wan 1122 Criminal Judgment No. 118 at the Beginning of Punishment

Since the accusation of the public prosecution organ, the appraisal price of Anxian Price Certification Center has been used to determine the value of stolen sand mining. However, the appraisal is based on September 2018 as the base date of price appraisal, and the occurrence time of this case is from 2012 to 2015. Therefore, the appraisal conclusion obviously does not conform to the facts of this case, and the price certification center of Laian County refuses to make a price appraisal. Therefore, the court does not confirm the appraisal conclusion of the appraisal of Laian County Price Certification Center.

The inspection material is the basis for issuing the appraisal opinion. If the source of the inspection material is unknown or inconsistent with the sample provided by the entrusting organ, then even if the appraiser is based on legal standards and norms, the appraisal opinion cannot truly reflect the situation of the case and even interfere with the judge's correct trial. In criminal cases of illegal mining, the legality of the materials can be confirmed in terms of the source of the materials, the object of identification and the consistency of the materials, the acquisition, storage, transfer and use of the materials. There are two basic methods for the legality appraisal of the inspection materials: one is the proof of uniqueness, such as whether the measurement of the illegal mining site and the calculation of the mining time have been confirmed by the parties concerned; The second is the proof of the custody chain, such as whether the mineral resources reserve report provided by the case handling organ to the appraisal institution has been reviewed and filed.

Case:(2022) Gui 1024 Criminal Judgment No.36 at the Beginning of Punishment

The appraisal opinion of this case is the conclusion drawn after the appraisal of the overall results caused by the continuous mining of the mine involved. Before the defendants Li xx, Huang xx and Lu xx engaged in illegal mining, there was a situation of Lu xx's illegal mining alone. therefore, the bauxite loss and damage to mineral resources in the whole mine may include the part caused by Lu shaotong's illegal mining alone. therefore, it is unreasonable to identify the bauxite loss and damage value of mineral resources obtained through identification as being caused by Li xx, Huang xx and Lu xx's illegal mining in partnership, and not beyond a reasonable doubt. Therefore, the court does not determine the criminal responsibility of the defendants Li Fuwang and Huang Zixin on the basis of the appraisal opinions.

The appraisal institution shall comply with the relevant standards and norms for the appraisal of the resources involved in illegal mining cases. It mainly includes: in the aspect of determining ore and non-ore, the requirements of ore industry indicators should be complied with, and the relevant indicators can be found in the documents listed by the author in the article "Analysis of Criminal Objects of Illegal Mining Crime"; in the aspect of mining quantity calculation, topographic surveying and mapping, geological survey and other means should be adopted according to the relevant standards and norms of geological exploration and mining, at the same time, combined with the region's previous geological data, mine design data and other comprehensive factors to determine; in the calculation of the value of mineral products, should be calculated according to the illegal mining behavior of the market value of mineral products, should not be used in other periods of value standards. If the appraisal institution has problems such as errors in applicable standards and unreasonable appraisal methods, the appraisal opinions may be deemed invalid.

Case:(2020) Wan 1122 Criminal Judgment No.80 at the Beginning of Punishment

The price of illegal mining accused by the public prosecution organ of the defendant was based on the price appraisal opinion issued by the Laian County Price Certification Center. The appraisal was made on September 28, 2018, the reference date, and the appraisal was made on the price of finished sand. The cost from the original sand processing to the finished sand was not deducted, which was not reasonable enough. Therefore, the appraisal opinion did not have the objectivity of evidence and the court did not accept it.

Case:(2019) Ji 0481 Criminal Judgment No. 499 at the Beginning of Punishment

There are two groups of appraisal opinions in the file, one is the earthwork calculation results table provided by the Senmiao Water Conservancy and Water Conservation Technical Service Department of Wu 'an Water Conservancy Bureau, and the other is the judicial appraisal opinion No. 013 issued by Handan Guangming Judicial Accounting Appraisal Center entrusted by Wu 'an Public Security Bureau (2018). The determination of unit price between the two appraisal opinions is consistent. The difference lies in the calculation of cubic quantity and weight. The quantity determined by Wu 'an Price Certification Center is obtained by Wu 'an Water Conservancy Bureau based on the sum of the total earthwork filling of the two mining pits provided by Senmiao Service Department, while Guangming Center made a comprehensive calculation based on the cubic quantity issued by Hengda Geographic Information Engineering Co., Ltd. and the sand and gravel content issued by Zhongmei Huasheng Hydrogeological Exploration Co., Ltd, it is more scientific, and the public security organs have supplemented relevant evidence to the qualification of the appraisal institution, so the adoption of the appraisal opinions of the Guangming Center is more in line with objective reality.

Regarding the legality of the appraisal opinion, the following ten aspects can be reviewed in accordance with Article 97 of the Interpretation on the Application of the the People's Republic of China Criminal Procedure Law (hereinafter referred to as the Interpretation): 1. Whether the appraisal institution and the appraiser have Legal qualifications; 2. Whether the appraiser has circumstances that should be avoided; 3. Whether the source, acquisition, storage, and inspection of the inspection materials comply with laws and relevant regulations, whether it is consistent with the contents recorded in the relevant extraction record and list of seized articles, and whether the inspection materials are sufficient and reliable; 4. Whether the formal elements of the appraisal opinion are complete, whether the relevant contents such as the reason for filing the appraisal, the appraisal client, the appraisal institution, the appraisal requirements, the appraisal process, the appraisal method, the appraisal date, etc. are indicated, and whether the appraisal institution is stamped with a special seal for judicial appraisal and signed and sealed by the appraiser; 5. Whether the appraisal procedure conforms to the law and relevant regulations; 6. Whether the appraisal process and method conform to the relevant professional specifications; 7. Whether the appraisal opinions are clear; 8. Whether the appraisal opinions are related to the facts to be proved in the case; 9. Whether the appraisal opinions are inconsistent with other evidence such as inspection, inspection records and relevant photos; 10. Whether the appraisal opinions are timely informed to relevant personnel according to law, the parties have no objection to the appraisal opinion. If the above-mentioned matters exist in the circumstances stipulated in Article 98 of the Interpretation, it can be considered that the appraisal opinion is suspected of being illegal and the court is required to exclude it from the basis for the decision. Article 197 In the course of a court trial, the parties, defenders and agents ad litem shall have the right to apply for notifying the attendance of new witnesses, obtaining new material evidence, and applying for a new appraisal or inquest.

Article 197 of the Criminal Procedure Law stipulates that the public prosecutor, the parties, defenders and agents ad litem may apply to the court to notify persons with specialized knowledge to appear in court and give opinions on the appraisal opinions made by the appraisers. Since the appraisal opinion is made for specialized issues, the scientific principles, methods, and conclusion deduction process involved are beyond the knowledge of most parties, case-handling personnel, prosecutors, litigation agents and judges. In order to better explain the appraisal opinion to the judge and help the judge judge judge the objectivity and relevance of the appraisal opinion, you can apply for experts in the field of minerals to analyze the appraisal opinion. On the one hand, the appearance of the expert assistant is conducive to clarifying the relevant professional issues to the court professionally and objectively, especially to point out the problems in the appraisal opinions intuitively and concisely in the trial; on the other hand, in the case of the appraiser appearing in court, the expert assistant and the appraiser face each other in a professional-to-professional way to find out the problems in the appraisal opinions comprehensively and deeply, laying a solid foundation for the effective defense of defense lawyers.

The appraisal opinion is the subjective judgment made by the appraiser on the special issues in the case. It has the characteristics of greater subjectivity of verbal evidence. Its scientificity and authenticity depend to a large extent on the appraiser's subject attributes, appraisal process and judgment ability. Examining the appraisal opinion only in written form can only judge whether the qualification of the appraiser, the appraisal procedure and the form of the appraisal opinion are legal, and it is difficult to judge whether the appraisal level, professional ethics and derivation process of the appraiser are reasonable. Article 192 of the Criminal Procedure Law stipulates that if the public prosecutor, the party or the defender or the agent ad litem disagrees with the appraisal opinion, and the people's court considers it necessary for the appraiser to appear in court, the appraiser shall testify in court. If, upon notification by the people's court, the appraiser refuses to testify in court, the appraiser's opinion shall not be used as the basis for finalizing the case. Therefore, if you think that the appraisal opinion is unreasonable in the appraisal method, appraisal object and existence, you can apply to the court to notify the appraiser to appear in court, and verify whether there is any problem in the appraisal opinion by asking questions to the appraiser, or asking the expert assistant and the appraiser to face each other in court.