Point of View | Relative Non-Prosecution-An Effective Defense for a Suspected Crime of Illegal Destruction of Agricultural Land
Published:
2022-04-11
Recently, the author handled a case suspected of illegal destruction of agricultural land, and the procuratorial organ finally dealt with the client Wang so-and-so, and the defense effect was good. A brief case After finding out, in order to carry out the "four good" rural road construction, the village committee of a certain town signed a "project contract" with a certain road and bridge co., ltd. without going through the formalities of requisitioning forest land, the road and bridge co., ltd. used excavators to carry out road construction in Nanshan of a certain village, resulting in the destruction of forest land and vegetation, which was identified by the forestry engineer of a certain district natural resources bureau, the destroyed forest land covers a total area of 5.6 mu and belongs to provincial public welfare forest. A total of 1008 young Robinia pseudoacacia trees and 30 young cypress trees were destroyed. Wang Moumou is the party branch secretary of Moumou Village and the director of the villagers committee, and Liu Moumou is the person in charge of the road construction site of Road and Bridge Co., Ltd., and it is determined that Wang Moumou and Liu Moumou violated the provisions of Article 342 of the the People's Republic of China Criminal Law. The crime of illegally occupying agricultural land shall be transferred for review and prosecution in accordance with Article 162 of the Criminal Procedure Law. II Treatment Results The procuratorial organ believes that Wang has committed the acts stipulated in Article 342 of the Criminal Law, but the circumstances of the crime are minor, with voluntary surrender, confession and punishment, compensation and understanding, "replanting and restoration of green" and other statutory circumstances of lighter, mitigated or exempted criminal punishment. According to Article 67 of the Criminal Law, there is no need to impose a penalty, so according to Article 177, paragraph 2, of the Criminal procedure Law, decided not to prosecute Wang Moumou-that is, relatively not to prosecute. Three defense ideas The defender believes that the indictment accuses Wang's behavior of illegally occupying agricultural land, which cannot be established in accordance with the law. First of all, the damaged public welfare forest alleged in this case has not been publicized in defining the scope of public welfare forest, nor has it been set up with public welfare forest signs. It is impossible to identify whether it is a public welfare forest. Even if the forest land involved is a public welfare forest, Wang Moumou does not know this. In addition, the 5.6 mu of forest land charged in this case includes 0.94 mu of basic farmland, which is not forest land and should be deducted. If this part is deducted, the case will not meet the filing standard. In addition, the appraisal of the area of public welfare forests in this case does not comply with relevant laws and regulations. The appraisal opinion is only signed by two engineers and technicians, and only the title certificates of two technicians are provided. The two engineers and technicians do not have judicial appraisal qualifications., Is not an appraiser of a judicial appraisal agency, the appraisal conclusion made does not meet the formal requirements of the evidence and should not be used as the basis for finalization. Secondly, according to the project documents, the unit involved in the project is the District Transportation Bureau, and the main body of responsibility for road construction should be the county-level people's government and the township-level people's government, not the so-and-so village committee. There is no evidence to prove that the responsibility for handling road construction procedures (including forest land occupation) lies with the village committee or Wang Moumou. Thirdly, if it is indeed a public welfare forest, the problem can be solved by completing the formalities. The village is the only backward village in its town that has neither public transportation nor school buses. It is extremely inconvenient for production and life, which seriously restricts the development of the village. The construction of the "Four Good Rural Roads" is a major national project to benefit the people. To implement the country's good policies and let the old white surname truly enjoy the policy dividend, the relevant departments need to fine-tune their thinking, and the procedures should be completed. Go through the formalities, not the person! Moreover, the forest land involved in the case can be completely repaired by replanting. Wang Moumou cooperated with the government to build roads for the people. It was a kind act of public will, no social harm, and should not be punished; Wang Moumou's behavior did not constitute the crime of illegal occupation of agricultural land. Request the procuratorate to do not prosecute Wang Moumou. Analysis of four crimes 1. Standards of conviction and punishment Article 342 of the the People's Republic of China Criminal Law [Crime of Illegal Occupation of Agricultural Land] Violation of land management laws and regulations, illegal occupation of cultivated land, forest land and other agricultural land, change the use of the occupied land, and cause a large amount of cultivated land, forest land and other agricultural land Anyone who is destroyed shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine or a fine. Interpretation of the Supreme Law on Several Issues concerning the Specific Application of Law in the Trial of Criminal Cases of Destroying Forest Land Resources Article 1: Under any of the following circumstances, if it belongs to "a large number of forest land, causing a large amount of destruction", it shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention for the crime of illegally occupying agricultural land, and shall also be sentenced to a fine or a fine: The amount of (I) illegally occupied and destroyed protective forest land and forest land for special purposes respectively or in total reaches more than five mu; (II) illegally occupy and destroy more than 10 mu of other forest land; The (III) illegally occupies and destroys the forest land specified in Item (I) and (II) of this article, and the quantity reaches more than 50% of the corresponding quantity standard; (IV) illegally occupy and destroy the forest land specified in items (I) and (II) of this article, one of the quantities reaches more than 50% of the corresponding quantity standard, and the total quantity of the two items reaches the quantity standard specified in this article. 2. Constituent elements 1) Object element: The object of this crime is the country's land management system. 2) Objective elements: the objective aspect of this crime is the violation of land management laws and regulations, illegal occupation of agricultural land for other purposes, a large number of large, resulting in a large number of agricultural land destruction. 3) Subject element: The subject of this crime can be either a natural person or a unit. 4) Subjective elements: This crime is manifested as intentional in the subjective aspect. That is, knowing that the occupation of agricultural land for other purposes violates land management laws and regulations, and knowing that the occupation of agricultural land for other purposes will cause the destruction of a large number of agricultural land. 5 Types of Non-Prosecution Non-prosecution means that the People's Procuratorate, after examining the prosecution, makes a decision not to transfer the case to the People's Court for trial and terminates the proceedings. Non-prosecution is one of the results made by the People's Procuratorate in accordance with the law after reviewing the case. Its nature is a kind of litigation punishment made by the People's Procuratorate on criminal suspects who should not be investigated, do not need to be investigated, or cannot be investigated for criminal responsibility. The types of non-prosecution are as follows: 1. Statutory non-prosecution (absolutely non-prosecution) Statutory non-prosecution refers to the provisions of Article 142, paragraph 1, of the Criminal Procedure Law: If a criminal suspect has one of the circumstances specified in Article 15 of this law, the People's Procuratorate shall make a decision not to prosecute, which is called absolute non-prosecution. According to Article 15 of the Criminal Procedure Law, statutory non-prosecution applies to the following six situations: (1) The circumstances are obviously minor and the harm is not serious, and it is not considered a crime; (2) the crime has passed the period of limitation of prosecution; (3) where the penalty is waived by an amnesty decree; (4) Crimes that are dealt with only after being told in accordance with the Criminal Law, and have not been told or have been withdrawn; (5) the death of the suspect or defendant; (6) Other laws provide for exemption from criminal liability. 2. Discretionary non-prosecution (relative non-prosecution) Article 173, paragraph 2, of the Criminal procedure Law stipulates that if the circumstances of the crime are minor and there is no need to be sentenced or exempted from punishment in accordance with the provisions of the Criminal Law, the people's Procuratorate may make a decision not to prosecute. Discretionary non-prosecution may apply in the following circumstances: (1) A criminal suspect who commits a crime outside the territory of China shall bear criminal responsibility in accordance with the Chinese Criminal Law, but has already received criminal punishment in a foreign country (Article 10 of the Criminal Law); (2) The suspect is deaf and dumb, or blind (Article 19 of the Criminal Law) (3) The criminal suspect commits a crime due to justifiable defense or emergency avoidance (Articles 20 and 21 of the Criminal Law); (4) Preparing tools and creating conditions for the crime (Article 22 of the Criminal Law); (5) In the course of the crime, the crime is automatically suspended or the result of the crime is automatically and effectively prevented from occurring without causing damage (Article 24 of the Criminal Law); (6) Having a secondary or auxiliary role in a joint offence (art. 27 of the Criminal Code); (7) Being coerced to participate in a crime (art. 28 of the Criminal Code); (8) The criminal suspect surrendered himself or performed significant meritorious service (articles 67 and 68 of the Criminal Law). 3. Insufficient evidence does not prosecute (doubt does not prosecute) Article 140, paragraph 4, of the Criminal procedure Law stipulates that for cases of supplementary investigation, if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution, it may make a decision not to prosecute. Under any of the following circumstances, if it cannot be determined that the criminal suspect constitutes a crime or needs to be investigated for criminal responsibility, the evidence is insufficient and the conditions for prosecution are not met, and a decision not to prosecute may be made: (1) The evidence on which the conviction is based is questionable and cannot be verified; (2) The facts of the constituent elements of the crime lack the necessary evidence to prove it. (3) The contradiction between the evidence on which the conviction is based cannot be reasonably excluded; (4) The conclusion based on the evidence has other possibilities.
Recently, the author handled a case suspected of illegal destruction of agricultural land, and the procuratorial organ finally dealt with the client Wang so-and-so, and the defense effect was good.
A brief case
After finding out, in order to carry out the "four good" rural road construction, the village committee of a certain town signed a "project contract" with a certain road and bridge co., ltd. without going through the formalities of requisitioning forest land, the road and bridge co., ltd. used excavators to carry out road construction in Nanshan of a certain village, resulting in the destruction of forest land and vegetation, which was identified by the forestry engineer of a certain district natural resources bureau, the destroyed forest land covers a total area of 5.6 mu and belongs to provincial public welfare forest. A total of 1008 young Robinia pseudoacacia trees and 30 young cypress trees were destroyed. Wang Moumou is the party branch secretary of Moumou Village and the director of the villagers committee, and Liu Moumou is the person in charge of the road construction site of Road and Bridge Co., Ltd., and it is determined that Wang Moumou and Liu Moumou violated the provisions of Article 342 of the the People's Republic of China Criminal Law. The crime of illegally occupying agricultural land shall be transferred for review and prosecution in accordance with Article 162 of the Criminal Procedure Law.
II Treatment Results
The procuratorial organ believes that Wang has committed the acts stipulated in Article 342 of the Criminal Law, but the circumstances of the crime are minor, with voluntary surrender, confession and punishment, compensation and understanding, "replanting and restoration of green" and other statutory circumstances of lighter, mitigated or exempted criminal punishment. According to Article 67 of the Criminal Law, there is no need to impose a penalty, so according to Article 177, paragraph 2, of the Criminal procedure Law, decided not to prosecute Wang Moumou-that is, relatively not to prosecute.
Three defense ideas
The defender believes that the indictment accuses Wang's behavior of illegally occupying agricultural land, which cannot be established in accordance with the law.
First of all,The damaged public welfare forest alleged in this case has not been publicized in the scope of public welfare forest, nor has it been set up with public welfare forest signs. It is impossible to identify whether it is a public welfare forest. Even if the forest land involved is a public welfare forest, Wang Moumou does not know this.
In addition, the 5.6 mu of forest land charged in this case includes 0.94 mu of basic farmland, which is not forest land and should be deducted. If this part is deducted, the case will not meet the filing standard.
In addition, the appraisal of the area of public welfare forests in this case does not comply with relevant laws and regulations. The appraisal opinion is only signed by two engineers and technicians, and only the title certificates of two technicians are provided. The two engineers and technicians do not have judicial appraisal qualifications., Is not an appraiser of a judicial appraisal agency, the appraisal conclusion made does not meet the formal requirements of the evidence and should not be used as the basis for finalization.
Secondly,According to the project documents, the unit involved in the project is the District Transportation Bureau, and the main body of responsibility for road construction should be the county-level people's government and the township-level people's government, not the village committee. There is no evidence to prove that the responsibility for handling road construction procedures (including forest land occupation) lies with the village committee or Wang Moumou.
Again,If it is indeed a public welfare forest, the problem can be solved by completing the formalities.
The village is the only backward village in its town that has neither public transportation nor school buses. It is extremely inconvenient for production and life, which seriously restricts the development of the village. The construction of the "Four Good Rural Roads" is a major national project to benefit the people. To implement the country's good policies and let the old white surname truly enjoy the policy dividend, the relevant departments need to fine-tune their thinking, and the procedures should be completed. Go through the formalities, not the person!
Moreover, the forest land involved in the case can be completely repaired by replanting.
Wang Moumou cooperated with the government to build roads for the people. It was a kind act of public will, no social harm, and should not be punished; Wang Moumou's behavior did not constitute the crime of illegal occupation of agricultural land. Request the procuratorate to do not prosecute Wang Moumou.
Analysis of four crimes
1. Standards of conviction and punishment
Article 342 of the the People's Republic of China Criminal Law [Crime of Illegal Occupation of Agricultural Land] Violation of land management laws and regulations, illegal occupation of cultivated land, forest land and other agricultural land, change the use of the occupied land, and cause a large amount of cultivated land, forest land and other agricultural land Anyone who is destroyed shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine or a fine.
Interpretation of the Supreme Law on Several Issues concerning the Specific Application of Law in the Trial of Criminal Cases of Destroying Forest Land Resources
Article 1: Under any of the following circumstances, if it belongs to "a large number of forest land, causing a large amount of destruction", it shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention for the crime of illegally occupying agricultural land, and shall also be sentenced to a fine or a fine:
The amount of (I) illegally occupied and destroyed protective forest land and forest land for special purposes respectively or in total reaches more than five mu;
(II) illegally occupy and destroy more than 10 mu of other forest land;
The (III) illegally occupies and destroys the forest land specified in Item (I) and (II) of this article, and the quantity reaches more than 50% of the corresponding quantity standard;
(IV) illegally occupy and destroy the forest land specified in items (I) and (II) of this article, one of the quantities reaches more than 50% of the corresponding quantity standard, and the total quantity of the two items reaches the quantity standard specified in this article.
2. Constituent elements
1) Object elements:The object of this crime is the land management system of the state.
2) Objective elements:The objective aspect of this crime is the violation of land management laws and regulations, illegal occupation of agricultural land for other purposes, a large number of large, resulting in a large number of agricultural land destruction.
3) Main requirements:The subject of this crime can be either a natural person or a unit.
4) Subjective elements:The subjective aspect of this crime is intentional. That is, knowing that the occupation of agricultural land for other purposes violates land management laws and regulations, and knowing that the occupation of agricultural land for other purposes will cause the destruction of a large number of agricultural land.
5 Types of Non-Prosecution
Non-prosecution means that the People's Procuratorate, after examining the prosecution, makes a decision not to transfer the case to the People's Court for trial and terminates the proceedings. Non-prosecution is one of the results made by the People's Procuratorate in accordance with the law after reviewing the case. Its nature is a kind of litigation punishment made by the People's Procuratorate on criminal suspects who should not be investigated, do not need to be investigated, or cannot be investigated for criminal responsibility. The types of non-prosecution are as follows:
1. Statutory non-prosecution (absolutely non-prosecution)
Statutory non-prosecution refers to the provisions of Article 142, paragraph 1, of the Criminal Procedure Law: If a criminal suspect has one of the circumstances specified in Article 15 of this law, the People's Procuratorate shall make a decision not to prosecute, which is called absolute non-prosecution. According to Article 15 of the Criminal Procedure Law, statutory non-prosecution applies to the following six situations:
(1) The circumstances are obviously minor and the harm is not serious, and it is not considered a crime;
(2) the crime has passed the period of limitation of prosecution;
(3) where the penalty is waived by an amnesty decree;
(4) Crimes that are dealt with only after being told in accordance with the Criminal Law, and have not been told or have been withdrawn;
(5) the death of the suspect or defendant;
(6) Other laws provide for exemption from criminal liability.
2. Discretionary non-prosecution (relative non-prosecution)
Article 173, paragraph 2, of the Criminal procedure Law stipulates that if the circumstances of the crime are minor and there is no need to be sentenced or exempted from punishment in accordance with the provisions of the Criminal Law, the people's Procuratorate may make a decision not to prosecute. Discretionary non-prosecution may apply in the following circumstances:
(1) A criminal suspect who commits a crime outside the territory of China shall bear criminal responsibility in accordance with the Chinese Criminal Law, but has already received criminal punishment in a foreign country (Article 10 of the Criminal Law);
(2) The suspect is deaf and dumb, or blind (Article 19 of the Criminal Law)
(3) The criminal suspect commits a crime due to justifiable defense or emergency avoidance (Articles 20 and 21 of the Criminal Law);
(4) Preparing tools and creating conditions for the crime (Article 22 of the Criminal Law);
(5) In the course of the crime, the crime is automatically suspended or the result of the crime is automatically and effectively prevented from occurring without causing damage (Article 24 of the Criminal Law);
(6) Having a secondary or auxiliary role in a joint offence (art. 27 of the Criminal Code);
(7) Being coerced to participate in a crime (art. 28 of the Criminal Code);
(8) The criminal suspect surrendered himself or performed significant meritorious service (articles 67 and 68 of the Criminal Law).
3. Insufficient evidence does not prosecute (doubt does not prosecute)
Article 140, paragraph 4, of the Criminal procedure Law stipulates that for cases of supplementary investigation, if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution, it may make a decision not to prosecute.
Under any of the following circumstances, if it cannot be determined that the criminal suspect constitutes a crime or needs to be investigated for criminal responsibility, the evidence is insufficient and the conditions for prosecution are not met, and a decision not to prosecute may be made:
(1) The evidence on which the conviction is based is questionable and cannot be verified;
(2) The facts of the constituent elements of the crime lack the necessary evidence to prove it.
(3) The contradiction between the evidence on which the conviction is based cannot be reasonably excluded;
(4) The conclusion based on the evidence has other possibilities.
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