Viewpoint | Analysis of the Criminal Object of Illegal Mining Crime

Published:

2023-04-29

Article 343 of the Criminal Law stipulates that the crime of illegal mining is a violation of the provisions of the Mineral Resources Law, unauthorized mining without obtaining a mining license, unauthorized entry into state-planned mining areas, mining areas of great value to the national economy and other people's mining areas, or unauthorized mining of specific minerals that the state stipulates to implement protective mining. In determining this crime, in addition to proving that the parties committed the above-mentioned acts, whether the object of the crime belongs to the mineral resources stipulated by law is also a necessary object of proof. 1. Mineral Resources Definition Article 2 of the detailed rules for the implementation of the Mineral Resources Law (decree No. 152 of the State Council) stipulates that mineral resources refer to natural resources in solid, liquid and gaseous form that are formed by geological processes and have utilization value. With economic development and scientific and technological progress, the value of natural resources to human beings is constantly changing, and the collection and utilization of mineral resources by enterprises is also gradually increasing. Therefore, the scope of mineral resources stipulated by the state is constantly adjusted. Identification of mineral resources should pay attention to the following two points: 1. Mineral resources are a kind of natural resources. 168 kinds of mineral resources are identified in the detailed rules for the Classification of Mineral Resources, which are energy minerals (11 kinds of coal, coal-derived gas, stone coal, etc.), metal minerals (59 kinds of iron, manganese, chromium, etc.), non-metallic minerals (92 kinds of diamond, graphite, phosphorus, etc.) and water and gas minerals (6 kinds of groundwater, mineral water, carbon dioxide, etc.). According to the announcement No. 8 of the Ministry of Land and Resources in 2000, gabbro, pyroxenite and synenite have become newly discovered minerals. According to the Announcement No. 30 of the Ministry of Land and Resources in 2011, shale gas has become a newly discovered mineral. On November 15, 2017, the State Council approved natural gas hydrate as a new mineral. According to the "China Mineral Resources Reporting 2022" issued by the Ministry of Natural Resources, 173 types of minerals have been discovered nationwide. 2. Mineral resources should be of use value. Not all mineral resources in nature have utilization value. Judging whether the material involved belongs to mineral resources is not only based on whether the composition of the material contains minerals, but needs to meet the output form, quantity and quality. It can be expected that the final mining is technically feasible, economically reasonable and has development and utilization value. It is possible that the substance contains mineral components, but due to the limitation of the level of science and technology, the substance does not reach the minimum industrial index of minerals, so it does not have the value of development and utilization in economy and technology, and it does not belong to the mineral resources in the legal sense. 2. determination of mineral and non-mineral related standards The main criterion for determining mineral and non-mineral is the mineral industry index, that is, under the current technical and economic conditions, the requirements of the mineral industry departments on mineral quality and mining conditions according to the supply and demand of mineral resources are the main basis for evaluating the industrial value of mineral deposits. The mineral industry indicators mainly include the following: 1. Boundary grade refers to the minimum requirement for the content of useful components in a single ore sample when estimating the total delineation of the ore body in the resource reserve, as a minimum grade limit to distinguish the ore from the surrounding rock. 2. The lowest industrial grade refers to the lowest average grade of a useful component in an ore body or block that can be used in industry. 3. The average grade of the deposit refers to the total average grade of the industrial ore of the deposit. 4. Comprehensive industrial grade refers to that when the deposit contains two or more minerals, any of which can not meet the requirements of their own industrial grade, but its grade is above the boundary grade and can be recovered technically, it should be converted into the equivalent grade of a major component according to the principle of equivalence, or the marginal industrial grade should be determined according to the marginal price of several mineral products, and to determine the corresponding boundary grade. 5. Ore grade, refers to a natural type or industrial type of ore or mineral, according to the content of its useful and harmful components, physical and technical performance differences, as well as different uses or requirements of the grade. 6. The content of associated useful components refers to the minimum requirements for the content of components that are associated with the main useful components in the deposit and do not have separate mining value, but can be recovered at the same time in the process of mining, selection and smelting of the main useful components, and have separate products or output values. 7. The content of associated beneficial components refers to the content of components that are beneficial to the selection and metallurgy of the main components in the ore, or can improve the quality of the products when the main components are processed. 8. The average allowable content of harmful components refers to the maximum allowable content stipulated by the components in the ore block (or ore body or single project) that have adverse effects on the ore in the process of mining, mineral processing and metallurgical processing, and even affect the quality of the product. 9. The minimum recoverable thickness, in accordance with the current relevant technical policies, according to the coal type, production, mining methods and resources in different areas, such as the lower limit of the recoverable thickness standard. 10. The maximum allowable thickness of intercalation refers to the maximum allowable thickness of mineralized intercalation (or intercalation) where the non-mineral intercalation in the ore body or ore layer and the rock layer in the ore body (layer) do not reach the boundary grade. Ores that do not meet the standards may not be treated as mineral resources for the time being because they cannot be mined, or if they are mined without economic benefits, or they will cause significant pollution to the environment. The state has promulgated corresponding standards for different types of minerals. For example: DZ/T 0337-2020 Code for geological exploration of mineral resources Oil sand DZ/T 0341-2020 Code for geological exploration of mineral resources Building stones DZ/T 0344-2020 General rules for geological exploration of petroleum and natural gas DZ/T 0346-2020 Code for geological exploration of mineral resources Oil shale, stone coal and peat DZ/T 0348-2020 Code for mineral geological exploration magnesite and dolomite DZ/T 0349-2020 Specification for mineral geological exploration bentonite and talc DZ/T 0200-2020 Code for geological exploration of mineral resources Iron, manganese and chromium DZ/T 0201-2020 Code for geological exploration of mineral resources Tungsten, tin, mercury and antimony DZ/T 0202-2020 Code for mineral geological exploration bauxite DZ/T 0203-2020 Code for geological exploration of mineral resources Rare metals DZ/T 0205-2020 Code for mineral geological exploration rock gold DZ/T 0206-2020 Code for geological exploration of mineral resources Kaolin, pyrophyllite and refractory clay DZ/T 0207-2020 Code for geological exploration of mineral resources Siliceous raw materials DZ/T 0208-2020 Code for geological exploration of mineral resources Metallic placer DZ/T 0209-2020 Specification for mineral geological exploration phosphorus DZ/T 0210-2020 Code for geological exploration of mineral resources Pyrite DZ/T 0211-2020 Code for geological exploration of mineral resources Barite, toxigite, fluorite and boron DZ/T 0212.1-Code for 2020 Mineral Geological Exploration-Salts-Part 1: General DZ/T 0212.2-Code for 2020 Mineral Geological Exploration-Salts-Part 2: Modern Salt Lake Salts DZ/T 0212.3-Code for 2020 Mineral Geological Exploration-Salts-Part 3: Ancient Solid Salts DZ/T 0212.4-2020 Code for Mineral Geological Exploration-Salts-Part 4: Brine Salts in Deep Reservoir DZ/T 0213-2020 Specification for mineral geological exploration Limestone and cement ingredients DZ/T 0214-2020 Code for geological exploration of mineral resources Copper, lead, zinc, silver, nickel and molybdenum DZ/T 0215-2020 Code for mineral geological exploration coal DZ/T 0216-2020 Specification for CBM Reserve Estimation The above standards are derived from the Ministry of Natural Resources Bulletin No. 26 of 2020. 3. typical cases involving the definition of "mineral resources" (2016) Ji 02 sentence final 547 Liu mou and other illegal mining crimes Facts of (I) case: The defendants Wang mou, Liu mou and Li mou 1 (handled separately) discussed making profits from the project in a yingyanshan iron ore co., ltd (hereinafter referred to as yanshan iron ore) of Hebei iron and steel group. Defendants Liu mou and Li mou 1 took advantage of their personal relationship with Wang mou 1, general manager of yanshan iron ore mine, and signed a stope topsoil transportation agreement with yanshan iron mine to enter the mining area for construction. In June 2012, the defendant Wang and others organized relevant personnel to enter the mining area, demolish and mine ore at the demolition location, and directly sell the ore for profit. Defendant Liu and other contact people to 45-90 yuan price range of ore sales. After identification, from the end of June 2012 to the end of June 2013, the defendant Wang mou and others illegally used iron ore resources in yanshan iron ore to save 190783 tons of hematite industrial ore, with an ore grade Tfe32.39%; 15760 tons of hematite low-grade ore, with an ore grade Tfe23.46%; The illegally mined iron ore is worth 23218268 yuan. The (II) was ascertained through the second instance trial: About the ore grade: The above evidence also confirms the fact that Yanshan Mine allows the outsourced convoy to pull the ore with rocks, and the ore that does not meet the required grade is blasted by the declaration convoy of the five appellants and other convoys. Zhang Mou 2 Wei and other relevant personnel of Yanshan Mine also found that the ore immediately stopped construction. If the ore grade did not meet the requirements of the mine, the witness testimony pulled away by the construction team confirmed it; the ore grade identified in the verification report is much higher than that provided by Yanshan Mine. There is a contradiction between the ore grade identified in the verification report and the ore grade in the statistical table of iron concentrate issued by Yanshan Mine and the ore grade claimed by the ore purchaser. It is not certain whether the ore mined by the appellant and others is high-grade ore or low-grade waste rock that cannot be used by Yanshan Mine. (III) court decision: The first, second, third, fourth, fifth, and ninth criminal judgment No. 54 of the Yutian County People's Court of Hebei Province (2016) was revoked....... The appellant (defendant in the original trial) Liu Mou and others were not guilty. Enlightenment of (IV) cases In the above-mentioned cases, although Liu and others carried out the act of mining without obtaining a mining license as stipulated in Article 343 of the Criminal Law, the amount of money involved exceeded the "serious circumstances" standard stipulated in the interpretation of the Supreme people's Court and the Supreme people's Procuratorate on several issues concerning the Application of Law in handling Criminal cases of Illegal Mining and Destructive Mining. However, because the taste of the ore cannot be determined, it cannot be determined whether the ore mined by the suspect is high-grade ore or low-grade waste rock that cannot be used in Yanshan Mine. Therefore, the court determined that the suspect Liu Mou and others based on the principle of "no suspected crime" Does not constitute the crime of illegal mining. Therefore, when dealing with illegal mining crime cases, whether the criminal object conforms to the law is an important consideration for determining the crime and non-crime. In the process of defending criminal cases of illegal mining, professional institutions can be entrusted to identify whether the ore mined by the suspect belongs to "mineral resources" according to the relevant provisions of the state on mineral industry indicators and mineral taste, and determine whether the suspect's ore mining behavior meets the requirements of utilization value. In addition, the mineral resources industry has strong professionalism and complexity. According to the provisions of the ''Regulations on the Appraisal Procedures for the Value of Mineral Resources Damage Caused by Illegal Mining and Destructive Mining, ''the competent department of land and resources of the people's government at or above the provincial level has the right to deal with illegal mining, The appraisal conclusion issued by the value of destructive mining that causes damage or serious damage to mineral resources. Therefore, it is also the starting point of the defense to examine whether the subject of the appraisal conclusion on which the prosecution is based is qualified.

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