Mineral legal perspective | through the Shandong Qixia gold mine accident, bearing in mind the importance of mine safety production

-Accident situation

At about 13:13 on January 10, 2021, during the infrastructure construction of the Wushan Gold Mine in Qixia City of Shandong Wucailong Investment Co., Ltd., an explosion occurred in the return air shaft, causing 22 people to be trapped. After full rescue, 11 people were rescued, 10 People died, 1 person was missing, and the direct economic loss was 68.4733 million yuan.

The provincial accident investigation team determined that the accident was a major production safety liability accident caused by illegal storage and use of civil explosives and illegal hot work at the wellhead. The direct cause of the accident was the illegal mixed storage of explosives and detonators underground, and the high-temperature molten slag generated by the cage gas cutting operation at the wellhead fell into the return air shaft, collided with the wellbore facilities, and bounced onto the explosive packaging cartons piled up in the middle section of the horse head door, causing the cartons and other combustibles to burn, resulting in the explosion of detonators, detonating cords and explosives mixed in the chamber. The indirect reason is that the accident-related enterprises have not implemented the main responsibility of safety production in accordance with the law; the government and business departments have not conscientiously performed their safety supervision duties in accordance with the law. At the same time, Shandong Wucai Dragon Investment Co., Ltd. and Qixia City both constitute late reporting and concealment.

After investigation, it was determined that the "1 · 10" major explosion accident at Wushan Gold Mine in Qixia City of Wucailong Company was a major production safety liability accident caused by the illegal storage and use of civil explosives and illegal hot work at the wellhead.

2 Legal provisions

Article 36 of the the People's Republic of China Mine Safety Law "In the event of a mine accident, the mining enterprise must immediately organize rescue operations to prevent the accident from expanding, reduce casualties and property losses, and must immediately and truthfully report the casualty accident to the labor administrative department and the management of the mining enterprise Competent department."

Article 46 "If the person in charge of a mining enterprise commands in violation of regulations or forces workers to take risks in operations, resulting in a major casualty accident, he shall be investigated for criminal responsibility in accordance with the relevant provisions of the Criminal Law."

Article 47 "If the person in charge of a mining enterprise fails to take measures against the hidden dangers of mine accidents, and as a result, a major casualty accident occurs, he shall be investigated for criminal responsibility in accordance with the relevant provisions of the Criminal Law."

Article 9 of the regulations on reporting, investigation and handling of production Safety Accidents, "after the occurrence of an accident, the relevant personnel at the scene of the accident shall immediately report to the person in charge of the unit; after receiving the report, the person in charge of the unit shall report to the work safety supervision and administration department of the people's government at or above the county level where the accident occurred and the relevant departments responsible for the supervision and administration of production safety within one hour."

Article 13 "If new circumstances arise after the accident report, it shall be reported in a timely manner. If the number of casualties caused by the accident changes within 30 days from the date of the accident, it shall be reported in a timely manner. If the number of casualties caused by the road traffic accident or fire accident changes within 7 days from the date of the accident, it shall be reported in a timely manner."

Article 14 "After receiving the accident report, the person in charge of the accident unit shall immediately activate the corresponding emergency plan for the accident, or take effective measures to organize rescue, prevent the accident from expanding, and reduce casualties and property losses."

Article 17 "The public security organ of the place where the accident occurs shall, in the light of the circumstances of the accident, file a case for investigation and take compulsory and investigative measures in accordance with the law. If the criminal suspect escapes and hides, the public security organ shall promptly pursue and bring the case to justice."

Article 32 "For major accidents, major accidents, and general accidents, the people's government responsible for the accident investigation shall give a reply within 15 days from the date of receipt of the accident investigation report; for particularly major accidents, a reply shall be made within 30 days. Under circumstances, the approval time may be appropriately extended, but the extended time shall not exceed 30 days. The relevant authorities shall, in accordance with the approval of the people's government and in accordance with the limits of authority and procedures prescribed by laws and administrative regulations, impose administrative penalties on the units and personnel involved in the accident, and impose sanctions on the State functionaries responsible for the accident. The accident unit shall, in accordance with the reply of the people's government responsible for the accident investigation, deal with the personnel responsible for the accident in its own unit. If the person responsible for the accident is suspected of committing a crime, he shall be investigated for criminal responsibility in accordance with the law."

Article 35: "If the main person in charge of the accident unit commits any of the following acts, he shall be fined 40% to 80% of the previous year's annual income; if he belongs to a state employee, he shall be punished according to law; if a crime is constituted, he shall be investigated for criminal responsibility according to law: (1) failing to immediately organize accident rescue; (II) late reporting or omission of the accident; (III) leaving their posts without authorization during the investigation and handling of the accident.

Article 134 of the the People's Republic of China Criminal Law states that "whoever violates the provisions on safety management in production or operation, resulting in heavy casualties or other serious consequences, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are particularly bad, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.

Whoever forces others to operate in violation of regulations and risks, resulting in heavy casualties or other serious consequences, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the circumstances are particularly bad, he shall be sentenced to fixed-term imprisonment of not less than five years."

Article 139-1: "After a safety accident occurs, the person responsible for reporting the accident fails to report or falsely reports the accident, thus delaying the rescue of the accident. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; the circumstances are especially serious., Sentenced to fixed-term imprisonment of not less than three years and not more than seven years."

Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Endangering Production Safety

Article 1 "The subjects of crimes stipulated in the first paragraph of Article 134 of the Criminal Law include persons in charge, management personnel, actual controllers, investors and other personnel who are responsible for organizing, directing or managing production and operations, as well as personnel directly engaged in production and operations."

Article 2 "The subject of the crime stipulated in the second paragraph of Article 134 of the Criminal Law includes persons in charge, management personnel, actual controllers, investors and other personnel who are responsible for organizing, directing or managing production and operations."

Article 3 "The" directly responsible persons in charge and other directly responsible persons "as stipulated in Article 135 of the Criminal Law refer to the person in charge of the production and business unit who is directly responsible for the safety production facilities or safety production conditions that do not meet the requirements of the state., Managers, actual controllers, investors, and other personnel who are responsible for the management and maintenance of safety production facilities or safety production conditions."

Article 5 "Knowing that there are hidden dangers of accidents and there is danger in continuing to work, and still violating the relevant safety management regulations, one of the following acts shall be deemed as" forcing others to violate regulations and take risks "as stipulated in the second paragraph of Article 134 of the Criminal Law." (1) Using the powers of organization, command, and management to force others to operate in violation of regulations; (II) using coercion, coercion, intimidation and other means to force others to operate in violation; (III) deliberately conceal the hidden dangers of accidents and organize others to operate in violation of regulations; (IV) other acts of forcing others to operate in violation of regulations."

Article 8 "after the occurrence of a safety accident, the person responsible for reporting the accident does not report or falsely reports the accident situation, thus delaying the rescue of the accident. under any of the following circumstances, it shall be deemed as" serious circumstances "as stipulated in article 139 of the criminal law: (1) causing the consequences of the accident to expand, adding more than one person to death, or adding more than three serious injuries, or increasing direct economic losses by more than 1 million yuan; (II) one of the following acts, causing no timely and effective rescue: 1. Deciding not to report, delay or falsely report the accident, or instigating or colluding with relevant personnel not to report, delay or falsely report the accident; 2. Leaving their duties or fleeing without permission during the rescue period; 3. Forging or destroying the scene of the accident, or transferring, hiding or destroying the bodies of the victims, or transferring or hiding the injured; 4. Destroying, forging or concealing drawings, records, computer data and other information related to the accident and other evidence."

Article 16 of the "Opinions of the Supreme People's Court on Further Strengthening the Trial of Criminal Cases Endangering Production Safety" "After an accident, actively rescue, strive to recover the loss of the accident, and effectively avoid the expansion of the loss; actively cooperate with the investigation and compensate the victim for the loss, Can be punished leniently according to law."

Analysis of three lawyers

(I) on the main body of supervision of mine safety responsibility.

In accordance with the provisions of the law, the competent department of labor administration under the State Council shall exercise unified supervision over the work of safety in mines throughout the country. The competent departments of labor administration of the local people's governments at or above the county level shall exercise unified supervision over the work of safety in mines within their respective administrative regions. The departments in charge of mining enterprises under the people's governments at or above the county level shall administer safety work in mines.

(II) on the main body of responsibility for mine safety production.

According to the Mine Safety Law, mining enterprises must establish and improve the safety production responsibility system. The mine manager is responsible for the safety production of the enterprise.

(III) on the subject of criminal responsibility for mine safety production.

1, the crime of major liability accident and the crime of forced illegal risk-taking operation of the main body of responsibility.

According to the provisions of paragraphs 1 and 2 of Article 134 of the Criminal Law and Articles 1 and 2 of Several Interpretations, the criminal subjects of the crime of major liability accident and the crime of ordering illegal and risky operations are general subjects. The subject stipulated in the first paragraph of the Criminal Law is the subject of production operations, and the second paragraph does not have restrictions on production operations. The "Several Interpretations" stipulate that both subjects include persons in charge, management personnel, actual controllers, investors and other personnel who are responsible for organizing, directing or managing mine production and operations.

2. The problem of complicity in the crime of concealing a security incident

According to the second paragraph of Article 139 of the Criminal Law, the subject of the crime of concealing safety accidents is limited to a special subject, that is, a person who has the responsibility to report safety accidents. According to Article 5 of the "Several Interpretations", "persons with reporting responsibilities" refer to the person in charge of the mine production and operation unit, the actual controller, the investor in charge of production and operation management, and other persons with reporting responsibilities.

Safety Production Guarantee in (IV) Mine

According to the "Mine Safety Law", mining enterprises must have facilities to ensure safe production, establish and improve safety management systems, take effective measures to improve the working conditions of employees, strengthen mine safety management, and ensure safe production. The State also encourages scientific and technological research on safety in mines, promotes advanced technology, improves safety facilities and raises the level of safe production in mines. The safety facilities of mine construction projects must be designed, constructed, put into production and use at the same time as the main project. Mining must have the conditions to ensure safe production, and implement the mine safety regulations and industry technical specifications for mining different types of minerals. In accordance with the requirements of relevant laws and regulations, comprehensively strengthen safety management, improve the safety awareness of all miners, constantly strengthen the importance of safe production, and implement the responsibilities of relevant regulatory departments.

Pre-prevention takes precedence over post-remediation. In daily production operations, mineral enterprises must regularly inspect and maintain mechanical and electrical equipment and their protective devices, safety testing instruments and other equipment to ensure safe use.

Responsibility after the occurrence of safety accidents in (V) mines

Drawing lessons from the past, after a safety accident occurs in a mine, the mining enterprise must immediately organize rescue, prevent the accident from expanding, reduce casualties and property losses, and immediately and truthfully report the casualty accident to the labor administrative department and the competent department in charge of the mining enterprise. The person in charge of the mining enterprise shall stay at the place where the accident occurred and organize the rescue work. After a mine accident occurs, the danger on the spot shall be eliminated as soon as possible, the cause of the accident shall be ascertained and preventive measures shall be proposed. Production can be resumed only after the hazards on site are eliminated.

IV Mine safety production accident prevention and rectification measures

In order to avoid the recurrence of similar mine safety production accidents and prevent them before they occur, some suggestions on accident prevention and rectification measures are as follows:

1. Strengthen the supervision responsibility and political responsibility to ensure safe production.

2, compact, compact the main responsibility of enterprise safety production, implement the rules and regulations of safety production.

3. Comprehensively strengthen the management and supervision of civil explosives and blasting operations, and standardize the operation process of blasting operations and the professional knowledge of employees.

4, strengthen the construction unit operation management, strengthen the construction site management, to ensure safe production.

5. The construction unit shall strengthen the management of outsourcing projects and mine contracting according to law.

6. Clarify and refine the supervision responsibilities of the mine supervision department, and achieve the principle of "who is in charge, who is responsible for supervision, and who is responsible for approval.

7. Strengthen and improve the information reporting of emergencies and the emergency rescue work of emergencies.

8. Carry out in-depth investigation and rectification of production safety.